To any one not versed in ethnographical sociology these customs seem improbable. Doubt has been cast on this story of Hortensius and Cato, though it is attested by the Anti-Cato of Julius Cæsar, on which Plutarch relies; but it has nothing extraordinary for us. We know that at first woman was everywhere the absolute property of the man. The manus of the Roman husband was in the main only an attenuated form of primitive conjugal right, which we know included the power to lend, barter, or cede the wife without consulting her. The case of Cato is then only a survival of preceding ages.
Necessarily brief and incomplete as the résumé must be that I can here give of conjugal legislation at Rome, it will suffice, I hope, to give a clear idea of what Roman marriage was. I should add that the law, inspired by the old patriotic spirit and the prejudices of caste, limited the right of marriage, the jus connubii. The justes noces were at first an aristocratic privilege. The plebeians coupled more ferarum. At length the jus connubii extended to marriages between Latin and Roman, Latin and Latin, and even foreigner and foreigner. The child followed the condition of the mother, which seems to be a survival of the ancient maternal family. Another vestige of the same kind is found in the legal position of spurii—that is to say, of children born of a marriage which is either prohibited or incestuous or bigamous. These children, irregularly conceived, have a mother, but no legal father; they do not come under the paternal power of the father, like the child of lawful marriage, and cannot be legitimated.[615]
The study of the transformations that Roman marriage underwent from the time of Numa to that of the emperors is most interesting; for we can follow a complete evolution in regard to it which has never been so complete in any other country. At first we find conjugal anarchy, the capricious union or usus, which could be, and which was in fact, often polygamous, as the ulterior persistence of the concubinate proves; then the marriage by capture, of which the trace remained in the marriage ceremony; then the marriage by purchase, the coemptio, with its ordinary consequence, the servitude of the wife, which even the solemn marriage or confarreation did not abolish. At length this brutal law of the primitive ages relaxes. The law which holds the woman under paternal power (patria potestas) is turned round. The father himself gives his daughter in mancipium to a third party, who afterwards enfranchises her. Sometimes it is the patria potestas which is a check to the manus of the husband. The wife, in marrying, without being subject to the manus, remains subject to her father, who can even claim her again.
But the institution of the dowry as obligatory and inalienable by the husband, the power of the woman to marry while remaining in the paternal family, to have her paraphernalia, to inherit property of her father, to control both of these, and also the great facility of divorce, ended by rendering the Roman, or at least the patrician matron, almost independent. Under the empire Roman marriage had become in fact a sort of free union, in which money considerations played the predominant part. Plautus already speaks of the dotal-slave, a creature of the wife’s, managing her property and ruling the husband—
“Argentum accepi, dote imperium vendidi.”[616]
Horace mentions the wife ruling by means of her dowry—“dotata regit virum conjux” (Od. iii. 18). Martial declares that he wishes no rich marriage; it does not suit him, he says, to be married by his wife—“uxori nubere nolo meae” (Epig. viii. 12). From Seneca to Saint Jerome, who both speak of it, the dotal-slave is advantageously replaced by the frizzed steward (Procurator calamistratus) managing the affairs of my lady.[617] They went further still, and as it happens in Russia at the present day, they concluded fictitious marriages; but at Rome, these false marriages, contracted for ready money, had no other object than to elude the laws against celibacy.[618]
VI. Barbarous Marriage and Christian Marriage.
In order to avoid being too incomplete in this rapid survey of marriage among all races, I will say a few words on barbarous marriage outside the Greco-Roman world.
The barbarians of ancient Europe, more or less monogamous, have differed little from any others. Their marriage resembles that of their fellows of all races and all times; that which chiefly characterises it is the subjection of woman.
Barbarous women, says Plutarch, neither ate nor drank with their husbands, and never called them by their name.[619] Among the Germans, who were more often monogamous, as Tacitus says,[620] the wife was purchased; then the purchase-money was transformed into a dower accorded to the bride under the name of morgengabe or oscle (osculum), the price of the first kiss.