The Private Life of the Romans. Harold Whetstone Johnston

36) and other dependent members of his family. Such a marriage was said to be cum conventiōne uxōris in manum virī (§35).

62 During this period, too, the free non-citizens (§§177, 178), the plebeians, had been busy in marrying and giving in marriage. There is little doubt that their unions had been as sacred in their eyes, their family ties as strictly regarded and as pure, as those of the patricians, but these unions were unhallowed by the national gods and unrecognized by the civil law, simply because the plebeians were not yet citizens. Their form of marriage was called ūsus, and consisted essentially in the living together of the man and woman as husband and wife for a year, though there were, of course, conventional forms and observances, about which we know absolutely nothing. The plebeian husband might acquire the same rights over the person and property of his wife as the patrician, but the form of marriage did not in itself involve manus. The wife might remain a member of her father's family and retain such property as he allowed her (§33) by merely absenting herself from her husband for the space of a trinoctium each year. If she did this the marriage was sine conventiōne in manum, and the husband had no control over her property; if she did not, the marriage like that of the patricians was cum conventiōne in manum.

FIGURE 10. HADRIAN

      63 At least as far back as the time of Servius goes another Roman form of marriage, also plebeian, though not so ancient as ūsus. It was called coēmptiō and was a fictitious sale, by which the pater familiās of the woman, or her guardian (tūtor) if she was suī iūris, transferred her to the man mātrimōniī causā. This form must have been a survival of the old custom of purchase and sale of wives, but we do not know when it was introduced among the Romans. It carried manus with it as a matter of course and seems to have been regarded socially as better form than ūsus. The two existed for centuries side by side, but coēmptiō survived ūsus as a form of marriage cum conventiōne in manum.

      64 Ius Conubii.—While the Servian constitution made the plebeians citizens and thereby legalized their forms of marriage, it did not give them the right of intermarriage with the patricians. Many of the plebeian families were hardly less ancient than the patricians, many were rich and powerful, but it was not until 445 B.C. that marriages between the two orders were formally sanctioned by the civil law. The objection on the part of the patricians was largely a religious one: The gods of the state were patrician gods, the auspices could be taken by patricians only, the marriages of patricians only were sanctioned by heaven. Their orators protested that the unions of the plebeians were no better than promiscuous intercourse, they were not iūstae nūptiae (§67); the plebeian wife was taken in mātrimōnium, she was at best an uxor, not a māter familiās; her offspring were "mother's children," not patriciī.

      65 Much of this was class exaggeration, but it is true that at this early date the gēns was not so highly valued by the plebeians as by the patricians, and that the plebeians assigned to cognates certain duties and privileges that devolved upon the patrician gentīlēs. With, the iūs cōnūbiī many of these points of difference disappeared. New conditions were fixed for iūstae nūptiae; coēmptiō by a sort of compromise became the usual form of marriage when one of the parties was a plebeian; and the stigma disappeared from the word mātrimōnium. On the other hand patrician women learned to understand the advantages of a marriage sine conventiōne and marriage with manus gradually became less frequent, the taking of the auspices before the ceremony came to be considered a mere form, and marriage began to lose its sacramental character, and with these changes came later the laxness in the marital relation and the freedom of divorce that seemed in the time of Augustus to threaten the very life of the commonwealth.

      66 It is probable that by the time of Cicero marriage with manus was uncommon, and consequently that cōnfarreātiō and coēmptiō had gone out of general use. To a limited extent, however, the former was retained until Christian times, because certain priestly offices (flāminēs maiōrēs and rēgēs sacrōrum) could be filled only by persons whose parents had been married by the confarreate ceremony, the one sacramental form, and who had themselves been married by the same form. But so great became the reluctance of women to submit to manus, that in order to fill even these few priestly offices it was found necessary under Tiberius to eliminate manus from the confarreate ceremony.

67 Nuptiae Iustae.—There were certain conditions that had to be satisfied before a legal marriage could be contracted even by citizens. It was required:

      1. That the consent of both parties should be given, or of the pater familiās if one or both were in potestāte. Under Augustus it was provided that the pater familiās should not withhold his consent unless he could show valid reasons for doing so.

      2. That both parties should be pūberēs; there could be no marriage between children. Although no precise age was fixed by law, it is probable that fourteen and twelve were the lowest limit for the man and woman respectively.

      3. That both man and woman should be unmarried. Polygamy was never practiced at Rome.

      68 4. That the parties should not be nearly related. The restrictions in this direction were fixed rather by public opinion than by law and varied greatly at different times, becoming gradually less severe. In general it may be said that marriage was absolutely forbidden between ascendants and descendants, between other cognates within the fourth degree (§25), and the nearer adfīnēs (§26). If the parties could satisfy these conditions they might be legally married, but distinctions were still made that affected the civil status of the children, although no doubt was cast upon their legitimacy or upon the moral character of their parents.

      69 If the husband and wife were both Roman citizens, their marriage was called iūstae nūptiae, which we may translate "regular marriage," their children were iūstī līberī and were by birth cīvēs optimō iūre, "possessed of all civil rights."

      If but one of the parties was a Roman citizen and the other a member of a community having the iūs cōnūbiī but not the full cīvitās, the marriage was still called iūstae nūptiae, but the children took the civil standing of the father. This means that if the father was a citizen and the mother a foreigner, the children were citizens; but if the father was a foreigner and the mother a citizen, the children were foreigners (peregrīnī) with the father.

      But if either of the parties was without the iūs cōnūbiī, the marriage, though still legal, was called nūptiae iniūstae or mātrimōnium iniūstum, "an irregular marriage," and the children, though legitimate, took the civil position of the parent of lower degree. We seem to have something analogous to this in the loss of social standing which usually follows the marriage of a person with one of distinctly inferior position.

      70 Betrothals.—Betrothal (spōnsālia) as a preliminary to marriage was considered good form but was not legally necessary and carried with it no obligations that could be enforced by law. In the spōnsālia the maiden was promised to the man as his bride with "words of style," that is, in solemn form. The promise was made, not by the maiden herself, but by her pater familiās, or by her tūtor if she was not in potestāte. In the same way, the promise was made to the man directly only in case he was suī iūris, otherwise to the Head of his House, who had asked for