As in all Southern countries where women mature early, the Roman girl usually married young; twelve years were required by custom for her to reach the marriageable age.[[27]] In the earlier period a woman was acquired as wife in three different ways: I. By coemptio—a mock sale to her husband[[28]]; II. By confarreatio—a solemn marriage with peculiar sacred rites to qualify men and women and their children for certain priesthoods[[29]]; III. By usus, or acquisition by prescription. A woman became a man's legal wife by usus if he had lived with her one full year and if, during that time, she had not been absent from him for more than three successive nights.[[30]]
All these forms, however, had either been abolished by law or had fallen into desuetude during the second century of our era, as is evident from Gaius.[[31]] A man could marry even if not present personally; a woman could not.[[32]] The woman's parents or guardians were accustomed to arrange a match for her,[[33]] as they still do in many parts of Europe. Yet the power of the father to coerce his daughter was limited. Her consent was important. "A marriage cannot exist," remarks Paulus, "unless all parties consent."[[34]] Julianus writes also that the daughter must give her permission[[35]]; yet the statement of Ulpian which immediately follows in the Digest shows that she had not complete free will in the matter: "It is understood that she who does not oppose the wishes of her father gives consent. But a daughter is allowed to object only in case her father chooses for her a man of unworthy or disgraceful character."[[36]] The son had an advantage here, because he could never be forced into a marriage against his will.[[37]] The consent of the father was always necessary for a valid marriage.[[38]] He could not by will compel his daughter to marry a certain person.[[39]] After she was married, he still retained power over her, unless she became independent by the birth of three children; but this was largely to protect her and represent her in court against her husband if necessity should arise.[[40]] A father was not permitted to break up a harmonious[[41]] marriage; he could not get back his daughter's dowry without her consent,[[42]] nor force her to return to her husband after a divorce[[43]]; and he was punished with loss of citizenship if he made a match for a widowed daughter before the legal time of mourning for her husband had expired.[[44]] A daughter passed completely out of the power of her father only if she became sui iuris by the birth of three children or if she became a Vestal, or again if she married a special priest of Jupiter (Flamen Dialis), in which case, however, she passed completely into the power of her husband. Under all circumstances a daughter must not only show respect for her father, but also furnish him with the necessaries of life if he needed them.[[45]]
"Breach of Promise."
Under the Empire no such thing as a "breach of promise" suit was permitted, although in the days of the Republic the party who broke a promise to marry had been liable to a suit for damages.[[46]] But this had now disappeared, and either party could break off the betrothal at pleasure without prejudice.[[47]] Whatever gifts had been given might be demanded back.[[48]] The engagement had to be formally broken off before either party could enter into marriage or betrothal with another; otherwise he or she lost civil status.[[49]] While an engagement lasted, the man could bring an action for damages against any one who insulted or injured his fiancée.[[50]]
Husband and Wife.
The Roman marriage was a purely civil contract based on consent.[[51]] The definition given by the law was a noble one. "Marriage is the union of a man and a woman and a partnership of all life; a mutual sharing of laws human and divine."[[52]] The power of the husband over the wife was called manus; and the wife stood in the same position as a daughter.[[53]] No husband was allowed to have a concubine.[[54]] He was bound to support his wife adequately, look out for her interests,[[55]] and strictly to avenge any insult or injury offered her[[56]]; any abusive treatment of the wife by the husband was punished by an action for damages[[57]]. A wife was compelled by law to go into solemn mourning for a space of ten months upon the death of a husband[[58]]. During the period of mourning she was to abstain from social banquets, jewels, and crimson and white garments[[59]]. If she did not do so, she lost civil status. The emperor Gordian, in the year 238, remitted these laws so far as solemn clothing and other external signs of mourning above enumerated were concerned.[[60]] But a husband was not compelled to do any legal mourning for the death of his wife.[[61]]
The wife was, as I have said, in the power of her husband. Originally, no doubt, this power was absolute; the husband could even put his wife to death without a public trial. But the world was progressing, and that during the first three centuries after Christ the power of the husband was reduced in practice to absolute nullity I shall make clear in the following pages. I shall, accordingly, first investigate the rights of the wife over her dowry, that is, the right of managing her own property.
Even from earliest times it is clear that the wife had complete control of her dowry. The henpecked husband who is afraid of offending his wealthy wife is a not uncommon figure in the comedies of Plautus and Terence; and Cato the Censor growled in his usual amiable manner at the fact that wives even in his day controlled completely their own property.[[62]] The attitude of the Roman law on the subject is clearly expressed. "It is for the good of the state that women have their dowries inviolate."[[63]] "The dowry is always and everywhere a chief concern; for it is for the public good that dowries be retained for women, since it is highly necessary that they be dowered in order to bring forth offspring and replenish the state with children."[[64]] "It is just that the income of the dowry belong to the husband; for inasmuch as it is he who stands the burdens of the married state, it is fair that he also acquire the interest."[[65]] "Nevertheless, the dowry belongs to the woman, even though it is in the goods of the husband."[[66]] "A husband is not permitted to alienate his wife's estate against her will."[[67]] A wife could use her dowry during marriage to support herself, if necessary, or her kindred, to buy a suitable estate, to help an exiled parent, or to assist a needy husband, brother, or sister. The numerous accounts in various authors of the first three centuries after Christ confirm the statement that the woman's power over her dowry was absolute.[[68]] Then as now, a man might put his property in his wife's name to escape his creditors,[[69]]—a useless proceeding, if she had not had complete control of her own property.
When the woman died, her dowry, if it had been given by the father (dos profecticia) returned to the latter; but if any one else had given it (dos adventicia), the dowry remained with the husband, unless the donor had expressly stipulated that it was to be returned to himself at the woman's death (dos recepticia),[[70]] In the case of a dowry of the first kind, the husband might retain what he had expended for his wife's funeral.[[71]] The dowry was confiscated to the state if the woman was convicted of lèse majesté, violence against the state, or murder.[[72]] If she suffered punishment involving loss of civil status under any other law which did not assess the penalty of confiscation, the husband acquired the dowry just as if she were dead. Banishment operated as no impediment; if the woman wished to leave her husband under these circumstances, her father could recover the dowry.[[73]]
A further confirmation of the power of the wife over her property is the law that prohibited gifts between husband and wife; obviously, a woman could not be said to have the power of making a gift if she had no right of property of her own. The object of the law mentioned was to prevent the husband and wife from receiving any lasting damage to his or her property by giving of it under the impulse of conjugal affection.[[74]] This statute acted powerfully to prevent a husband from wheedling a wife out of her goods; and in case the latter happened to be of a grasping disposition the law was a protection to the husband and hence to the children, his heirs, for whose interests the Roman law constantly provided.