§ 92. I. THE LAW of Marriage. $92. Marriage and the Modes of contracting it. Marriage is the full legal union of man and woman for the purpose of lifelong mutual companionship. Such a union is not complete, according to the early Roman law, unless the husband obtains the 'manus mariti,' i. e. absolute power over the person of his wife. The effect of this power is to bring the wife under the domestic authority of her husband and, at the same time, to constitute her a member of his household. Hence marriages were usually concluded by means of an ancient traditional ceremony representing a purchase of the bride, in other words, by means of a mancipatio, the intending husband purchasing the daughter from the person in whose power she was, with a view to thereby acquiring that marital power without which marriage as a legal relationship was considered impossible'. A marriage of this kind was called 'coëmtio.' Besides coëmtio there was a religious form of marriage, called 'confarreatio'-like coëmtio, an institution of very ancient origin. A sacrifice offered to Jupiter with certain ceremonies and in solemn words prescribed by ancient tradition (certa verba) had the effect of formally uniting a man and woman for all sacrificial purposes, and consequently for lifelong companionship, and of placing the woman at the same time-for the two things were considered inseparable-in manum mariti. In the case of a coëmtio the husband's right to matrimonial cohabitation was the result of the power which he acquired over the wife; conversely, in the case of a confarreatio, the power acquired by the husband over his wife was the result of the right to matrimonial cohabitation which the ceremony of confarreatio conferred upon him. Coëmtio was the ordinary form in which any Roman citizen, whether patrician or In later times the wife sells herself. In the same way in Germany the daughter was at first betrothed and given in marriage by the person in whose power she was (her father or guardian), but subsequently betrothed herself and gave herself in marriage, and consequently received the 'bride-price' and the dower from the bridegroom herself.-Cp. Karlowa, Röm. RG., vol. ii. p. 158 ff.; Leist, Altarisches jus civile, vol. i. pp. 178, 179. plebeian, might contract a marriage. Confarreatio was a special § 92. form of marriage confined to the patricians'. The marriage with manus, which was characterized by its peculiar and rigorous effects on the person and property (infra, § 93) of the wife, was part of the specifically Roman jus civile. Aliens were therefore debarred from marriages with manus, nor could they avail themselves of the forms by which such marriages were concluded. What was known as the 'jus connubii' of the Roman citizena right which, since the lex Canuleja of 443 B. C., applied equally to intermarriages between patricians and plebeians-consisted in the capacity to contract a Roman marriage with manus, a 'justum matrimonium,' in other words, a marriage by virtue of which the wife, and consequently also the children, became members of the husband's household. How strongly the idea prevailed that there could be no real marriage without marital manus is shown by the rule of the early civil law that, even where a marriage was concluded without the requisite forms, manus should arise at once as soon as the parties had in fact completed a period of uninterrupted matrimonial cohabitation, and had thereby given effect to their deliberate intention of living together as husband and wife. Just as a bride might be urchased, so she might be acquired by usucapio. Both these rules were in an equal measure the outcome of the ancient view which regarded the daughter as a mere chattel belonging to her father. Land could be acquired by usucapio in two years; for all other things (ceterae res) one year was sufficient (supra, p. 337). Hence if a man took another's daughter to his home without lawful purchase or confarreatio, she became his wife by usucapio in the course of one year. And at the same moment she passed into his manus 'usu,' as it was termed, and with the acquisition of manus the requirements of a full legal marriage according to the Roman civil law were satisfied3. As to the original forms of marriage in the ancient Aryan law which correspond to the forms mentioned in the text, cp. Leist, Altarisches jus gentium, p. 125 ff. 'The marriage by usus was probably the outcome of the most ancient form of marriage, viz. marriage by capture. § 92. This whole development took place at a very early period, and carries the evidence of its great antiquity on the face of it. At the time of the Twelve Tables marriage by usus was fully recognized and very frequently resorted to. But what is more important is the testimony borne by the Twelve Tables to the fact that the foundation of marriage by usus-viz. the early notion that there could be no marriage without manus-had already been abandoned. have here the first indications of a new development in the Roman law of marriage. The criterion of matrimonial cohabitation is, as we have seen, that it should be uninterrupted. If therefore the woman absents herself from the man during the year of usucapio, with a view to interrupting the matrimonial cohabitation, the man's usus is 'broken' (usurpatio), and a marriage by usus becomes impossible. One of the laws of the Twelve Tables dealt with this 'usurpatio' which interrupts the usus of the matrimonial year and annuls its effect. This law provided that usurpatio should be deemed to have taken place, if the woman was absent from the house of the man for but three consecutive nights (trinoctium). The same law further provided that such a trinoctium, if repeated every year, should be sufficient for the purpose of permanently preventing manus from arising in respect of the marriage. These rules testify to the working of ideas entirely different from those which, at an earlier date, had produced marriage by usus. It is obvious that this trinoctium of the Twelve Tables means merely a symbolical interruption of the cohabitation. The 'breaking' of the matrimonial cohabitation is a mere fiction which is employed for the sole purpose of preventing manus mariti from arising. A new conception of marriage is here clearly presented to our view: there can be marriage without manus. The early law assumed that usurpatio (i. e. the deliberate interruption of cohabitation The Roman law of marriage likewise (Gierke's Untersuchungen zur deutschen Rechtsgeschichte xvi. 1883), PP. 100102. As to the origin and growth of the free marriage among the Romans, cp. Bernhöft, ZS. f. vergleichende RW., vol. viii. (1888), pp. 197, 198. by the parties themselves) was evidence of an absence of intention to § 92. marry. But in the new view of marriage which was gradually asserting itself a usurpatio might take place (by a mere trinoctium) notwithstanding the existence of an intention to marry. What the parties desired was, indeed, to marry, but to marry without manus, and it was this desire that the Twelve Tables sanctioned and gave effect to. So far from introducing marriage by usus, the Twelve Tables in reality afford the best evidence of its decline. The adoption of the view that manus could be acquired by usus marks the first step in the process by which marriages informally concluded without coëmtio or confarreatio obtained the recognition of the law. If a man was in usucapio possession of the woman he wished to take to wife and was therefore certain that, after the lapse of a year, he would be his wife's lawful lord and husband, the relations subsisting between him and the woman prior to the expiration of the year were not in their nature extra-matrimonial relations, i.e. mere relations of fact, but were essentially matrimonial relations, i. e. legal relations, recognized by the statute and clothed by it with definite effects. Just as usucapio possession implicitly contained the idea of ownership (supra, p. 348) even before the period of usucapio was complete, so the usucapio possession of the woman implicitly contained the idea of marriage even prior to the expiration of the year of usus. In consequence, however, of the absence of manus in such cases, the view that marriages could be contracted without manus asserted itself simultaneously with the development of informally contracted marriages. And so completely were marriages without manus recognized as marriages even at the time of the Twelve Tables that the device of the trinoctium was frequently resorted to for the sole purpose of preventing manus from arising in respect of a marriage. Thus as early as the Twelve Tables we find two forms of marriage: marriage with manus and marriage without manus. The former kind of marriage-which is known as a 'strict' marriage-was an institution of the civil law in the technical sense of the term, being contracted by negotia juris civilis (coëmtio, confarreatio) or by usus (which was likewise juris civilis; supra, p. 328). Aliens were The § 92. therefore disqualified from concluding marriages with manus. other form of marriage—which is known as a 'free' marriage—was an institution of the jus gentium. It was open to aliens as well as to citizens, and was contracted by informal means. In a strict marriage the wife bore the honourable name of 'materfamilias,' in a free marriage she was only 'uxor.' At first marriages according to the jus gentium (i. e. without manus) did not, it is true, produce the legal effects which the Roman civil law attached to a justum matrimonium, or strict marriage. The wife remained in her own familia; in other words, she remained under the patria potestas of her father or under the guardianship of her relations, as the case might be. The children of the marriage followed their mother: in eye of the law, therefore, they did not pass into the potestas of their own father and become members of his familia. Accordingly, as far as the civil law was concerned (cp. § 91), father and children were not related to one another at all. When however marriages without manus came to be recognized as true marriages, it followed naturally enough that the law should recognize the children of such marriages as being their father's children. It is in this sense that a marriage without manus came to rank, in the course of time, as a justum matrimonium, or marriage valid by the jus civile. We cannot assign the change to any particular statute, but it was doubtless the outcome of a gradual and spontaneous development of customary law. The legal result then was this: although the wife did not pass into the manus of her husband, and consequently did not pass into his family, nevertheless the children of the marriage were regarded as the husband's children, as subject to his patria potestas and as members of his household (sui); in other words, the wife, though not a member of the household, bore her husband children who were members of his household, and she did so just because she was legally his wife. Henceforth manus, i. e. agnatic membership of the household on the part of the wife, ceased, even by the jus civile, to be essential for the purpose of constituting a justum matrimonium, or lawful marriage. In the competition between jus civile and jus gentium the latter was once more triumphant. Manus, which had once been the foundation |