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p740 Matrimonium

The Roman section only (pp740‑744) of an article on pp735‑744 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

MATRIMONIUM, NUPTIAE (γάμος), marriage.

[. . .]

A Roman marriage was called Justae Nuptiae, Justum Matrimonium, Legitimum Matrimonium, as being conformable to Jus Civile or to Roman Law. A marriage was either Cum conventione uxoris in manum viri, or it was without this conventio. In both cases there must be connubium between the parties, and consent: the male must also be pubes, and the woman viri potens. The legal consequences as to the power of the father over his children were the same in both. Opposed to the Legitimum Matrimonium was the Matrimonium Juris Gentium.

A Roman marriage may be viewed, First with reference to the conditions required for a Justum Matrimonium; Secondly, with reference to the forms of the marriage; Thirdly, with reference to its legal consequences.

Unless there was connubium there could be no Roman marriage. Connubium is defined by Ulpian (Frag. V.3) to be "uxoris jure ducendae facultas", or the faculty by which a man may make a woman his lawful wife. But in truth this is no definition at all, nor does it give any information. Connubium is merely a term which comprehends all the conditions of a legal marriage. Accordingly, the term is explained by particular instances: "Roman men citizens," says Ulpian, "have connubium with Roman women citizens (Romanae cives); but with Latinae and Peregrinae only in those cases where it has been permitted. With slaves there is no connubium."

Sometimes connubium, that is the faculty of contracting a Roman marriage, is viewed with reference to one of its most important consequences, namely, the Patria Potestas: "for," says Gaius, "since it is the effect of Connubium that the children follow the condition of their father, it results that when Connubium exists, the children are not only Roman citizens, but are also in the power of their father." Generally, it may be stated that there was only connubium between Roman citizens: the cases in which it at any time existed between parties, not both Roman citizens, were exceptions to the general rule. Originally, or at least at one period of the Republic, there was no Connubium between the Patricians and the Plebeians; but this was altered by the Lex Canuleia which allowed Connubium between persons of those two classes.

There was no connubium between many persons with respect to one another, who had severally connubium with respect to other persons. Thus there were various degrees of consanguinity within which there was no connubium. There was no connubium between parent and child, whether the relation was natural or by adoption; and a man could not marry an adopted daughter or granddaughter, even after he had emancipated her. There was no connubium between brothers and sisters, whether of the whole or of the half blood; but a man might marry a sister by adoption after her emancipation, or after his own emancipation. It became legal to marry a brother's daughter after Claudius had set the example by marrying Agrippina; but the rule was not carried further than the example, and in the time of Gaius it remained unlawful for a man to marry his sister's daughter (Gaius, I.62; Tacit. Ann. XII.5; Sueton. Claud. 26).

There was no connubium also between persons within certain relations of affinity, as between a man and his socrus, nurus, privigna, and noverca.

Any illegal union of a male and female, though affecting to be, was not a marriage: the man had no legal wife, and the children had no legal father; consequently they were not in the power of their reputed father. These restrictions as to marriage were not founded on any enactments; they were a part of that large mass of Roman law which belongs to Jus Moribus Constitutum. The marriage of Domitius, afterwards the emperor Nero, with Octavia the daughter of Claudius, seems at first sight somewhat irregular. Nero was adopted by Claudius by a Lex Curiata (Tacit. Ann. XII.26), but he was already his son-in‑law; at least the sponsalia are mentioned before the adoption (Tacit. Ann. XII.9). There seems to be no rule of law which would prevent a man from adopting his son-in‑law; though if the adoption took place before the marriage, it would be illegal, as stated by Gaius.

Persons who had certain bodily imperfections, as eunuchs, and others who from any cause could never attain to puberty, could not contract marriage; for though pubertas was in course of time fixed at a positive age [Impubes], yet as the foundation of the notion of pubertas was physical capacity for sexual intercourse, there could be no pubertas if there was a physical incapacity.

The Lex Julia et Papia Poppaea placed certain restrictions on marriage as to the parties between whom it could take place. [Julia et Papia Poppaea; Infamia.]

A man could only have one lawful wife at a time; and consequently if he were married, and divorced his wife, a second marriage would be no marriage, unless the divorce were effectual.

The marriage Cum conventione in manum differed from that Sine conventione, in the relationship which it effected between the husband and the wife; the marriage Cum conventione was a necessary condition to make a woman a materfamilias. By the marriage Cum conventione, the wife passed into the familia of her husband, and was to him in the relation of a daughter, or as it was expressed, "in manum convenit" (Cic. Top. 3; filiae loco est, Gaius, II.159). In the marriage Sine conventione, the wife's relation to her own familia remained as before, and she was merely Uxor. "Uxor," says Cicero (Top. 3), "is a genus of which there are two species; one is materfamilias, 'quae in manum convenit; the other is uxor only." Accordingly a materfamilias is a wife who is in manu, and in the familia of her husband, and consequently one of his sui heredes; or in the manus of him in whose power her husband is. A wife not in manu was not a member of her husband's familia, and therefore the term could not apply to her. Gellius (XVIII.6) also states that this p741was the old meaning of materfamilias. Matrona was properly a wife not in manu, and equivalent to Cicero's "tantummodo uxor"; and she was called matrona before she had any children. But these words are not always used in these their original and proper meanings (see Ulp. Frag. IV).

No forms were requisite in marriage; the best evidence of marriage was cohabitation matrimonii causa. The matrimonii causa might be proved by various kinds of evidence. A marriage Cum conventione might be effected by Usus, Farreum, and Coemptio.

If a woman lived with a man for a whole year as his wife, she became in manu viri by virtue of this matrimonial cohabitation. The consent to live together as man and wife was the marriage; the usus for a year had the manus as the result; and this was by analogy to Usucapion of movables generally, in which usus for one year gave ownership. The Law of the Twelve Tables provided that if a woman did not wish to come into the manus of her husband in this manner, she should absent herself from him annually for three nights (trinoctium) and so break the usus of the year (Gell. III.2; Gaius, I.111). The Twelve Tables probably did not introduce the usus in the case of a woman cohabiting with a man matrimonii causa, any more than they probably did in the case of other things; but as in the case of other things, they fixed the time within which the usus should have its full effect, so they established a positive rule as to what time should be a sufficient interruption of usus in the case of matrimonial cohabitation, and such a positive rule was obviously necessary in order to determine what should be a legal interpretation of usus.

Farreum was a form of marriage, in which certain words were used in the presence of ten witnesses, and were accompanied by certain religious ceremonies in which panis farreus was employed; and hence this form of marriage was also called Confarreatio. This form of marriage must have fallen generally into disuse in the time of Gaius, who remarks (I.112) that this legal form of marriage (hoc jus) was in use even in his time for the marriages of the Flamines Majores and some others. This passage of Gaius is defective in the MS., but its general sense may be collected from comparing it with Tacitus (Ann. IV.16) and Servius (ad Aeneid. IV.104, 374). It appears that certain priestly offices, such as that of Flamen Dialis, could only be held by those who were born of parents who had been married by this ceremony (confarreati parentes). Even in the time of Tiberius, the ceremony of confarreatio was only observed by a few. As to divorce between persons married by confarreatio, see Divortium.

The confarreatio is supposed to have been the mode of contracting marriage among the patricians, and it was a religious ceremony which put the wife in manu viri.

Coemptio was effected by Mancipatio, and consequently the wife was in mancipio (Gaius, I.118). A woman who was cohabiting with a man as uxor, might come into his manus by this ceremony, in which case the coemptio was said to be matrimonii causa, and she who was formerly uxor became apud maritum filiae loco. If the coemptio was effected at the time of the marriage, it was still a separate act. The other coemptio which was called fiduciae causa and which was between a woman and a man not her husband, is considered under Testamentum and Tutela. If, however, an uxor made a coemptio with her husband, not matrimonii causa, but fiduciae causa, the consequence was that she was in manu, and thereby acquired the rights of a daughter. It is stated by a modern writer, that the reason why a woman did not come in mancipium by the coemptio, but only in manum, is this, that she was not mancipated, but mancipated herself, under the authority of her father if she was in his power, and that of her tutors, if she was not in the power of her father; the absurdity of which is obvious, if we have regard to the form of mancipatio as described by Gaius (I.119), who also speaks (I.118a) of mancipatio as being the form by which a parent released his daughter from the patria potestas (e suo jure), which he did when he gave his daughter in manum viri. The mancipatio must in all cases have been considered as legally effected by the father or the tutors.

In the course of time, marriage without the manus became the usual marriage. The manus by usus fell into desuetude (Gaius, I.111).

Sponsalia were not an unusual preliminary of marriage, but they were not necessary. "Sponsalia," according to Florentinus (Dig. 23 tit. 1 s.1) "sunt mentio et repromissio nuptiarum futurarum." Gellius has preserved (IV.4) an extract from the work of Servius Sulpicius Rufus De Dotibus, which, from the authority of that great jurist, may be considered as unexceptionable (cf. Varro, de Ling. Lat. VI.70). Sponsalia, according to Servius, was a contract by stipulationes and sponsiones, the former on the part of the future husband, the latter on the part of him who gave the woman in marriage. The woman who was promised in marriage was accordingly called Sponsa, which is equivalent to Promissa; the man who engaged to marry was called Sponsus. The Sponsalia then were an agreement to marry, made in such form as to give each party a right of action in case of non-performance, and the offending party was condemned in such damages as to the Judex seemed just. This was the law (jus) of Sponsalia, adds Servius, to the time when the Lex Julia gave the Civitas to all Latium; whence we may conclude that alterations were afterwards made in it.

The Sponsalia were of course not binding, if the parties consented to waive the contract; and either party could dissolve the contract as either could dissolve a marriage. If a person was in the relation of double sponsalia at the same time, he was liable to Infamia [Infamia.] Sometimes a present was made by the future husband to the future wife by way of earnest (arrha, arrha sponsalitia), or as it was called propter nuptias donatio (Cod. 5 tit. 3). Sponsalia might be contracted by those who were not under seven years of age. The regulation of Augustus, which was apparently comprised in the Lex Julia et Papia, which declared that no sponsalia should be valid if the marriage did not follow within two years was not always observed (Sueton. Aug. c. 34; Dion Cass. LIV.16, and the note of Reimarus). [Infans; Impubes.]

The consequences of marriage were —

  1. The power of the father over the children of the marriage, which was a completely new relation, an effect indeed of marriage, but one which had no p742influence over the relation of the husband and wife. [Patria Potestas.]

  2. The liabilities of either of the parties to the punishments affixed to the violation of the marriage union. [Adulterium; Divortium.]

  3. The relation of husband and wife with respect to property, to which head belong the matters of Dos, Donatio inter virum et uxorem, Donatio propter nuptias, &c. Many of these matters, however, are not necessary consequences of marriage, but the consequence of certain acts which are rendered possible by marriage.

In the later Roman history we often read of marriage contracts which have reference to Dos, and generally to the relation of husband and wife viewed with reference to property. A title of the Digest (23 4) treats De Pactis Dotalibus, which might be made either before or after marriage.

The Roman notion of marriage was this: — it is the union of male and female, a consortship for the whole of life, the inseparable consuetude of life, an intercommunion of law, sacred and not sacred (Dig. 23 tit. 2 s.1). But it is not meant that marriage was to this extent regulated by law, for marriage is a thing which is, to a great extent, beyond the domain of law. The definition or description means that there is no legal separation of the interests of husband and wife in such matters in which the separation would be opposed to the notion of marriage. Thus the wife had the sacra, the domicile, and the rank of the husband. Marriage was established by consent, and continued by dissent; for the dissent of either party, when formally expressed, could dissolve the relation. [Divortium.]

Neither in the old Roman law nor in its later modifications, was a community of property an essential part of the notion of marriage; unless we assume that originally all marriages were accompanied with the conventio in manum, for in that case, as already observed, the wife became filiaefamilias loco, and passed into the familia of her husband; or if her husband was in the power of his father, she became to her husband's father in the relation of a granddaughter. All her property passed to her husband by a universal succession (Gaius, II.96, 98), and she could not thenceforward acquire property for herself. Thus she was entirely removed from her former family as to her legal status and became as the sister to her husband's children. In other words, when a woman came in manum, there was a blending of the matrimonial and the filial relation. It was a good marriage without the relation expressed by in manu, which was a relation of parent and child superadded to that of husband and wife. The manus was terminated by death, loss of Civitas, by Difarreatio, and we may assume by Mancipatio. It is a legitimate consequence that the wife could not divorce her husband, though her husband might divorce her, and if we assume that the marriage accompanied by the cum conventione was originally the only form of marriage (of which, however, we believe, there is no proof) the statement of Plutarch [Divortium] that the husband alone had originally the power of effecting a divorce, will consist with this strict legal deduction. It is possible, however, that, even if the marriage cum conventione was once the only marriage, there might have been legal means by which a wife in manu could be released from the manus; for the will alone would be sufficient to release her from the marriage. In the time of Gaius (I.137), a woman, after the repudium was sent, could demand a remancipatio.

When there was no conventio, the woman remained a member of her own familia: she was to her husband in the same relation as any other Roman citizen, differing only in this that her sex enabled her to become the mother of children who were the husband's children and citizens of the state, and that she owed fidelity to him so long as the matrimonial cohabitation continued by mutual consent. But her legal status continued as it was before: if she was not in the power of her father, she had for all purposes a legal personal existence independently of her husband, and consequently her property was distinct from his. It must have been with respect to such marriages as these, that a great part at least of the rules of law relating to Dos were established; and to such marriages all the rules of law relating to marriage contracts must have referred, at least so long as the marriage cum conventione existed and retained its strict character.

When marriage was dissolved, the parties to it might marry again; but opinion considered it more decent for a woman not to marry again. A woman was required by usage (mos) to wait a year before she contracted a second marriage, on the pain of Infamia.

At Rome, the matrimonium juris civilis was originally the only marriage. But under the influence of the Jus Gentium, a cohabitation between Peregrini, or between Latini, or between Peregrini and Latini and Romani, which, in its essentials, was a marriage, a consortium omnis vitae with the affectio maritalis, was recognised as such; and though such marriage could not have all the effect of a Roman marriage, it had its general effect in this, that the children of such a marriage had a father. Thus was established the notion of a valid marriage generally, which marriage might be either Juris Civilis or Juris Gentium. Certain conditions were requisite for a valid marriage generally, and particular conditions were necessary for a Roman marriage. In the system of Justinian, the distinction ceased, and there remained only the notion of a valid marriage generally which is the sense of Justae nuptiae in the Justinian system. This valid or legal marriage is opposed to all cohabitation which is not marriage; and the children of such cohabitation have no father (Puchta, Inst. III § 287). [Infamia.]

The above is only an outline of the Law of Marriage, but it is sufficient to enable a student to carry his investigations farther. [G.L.]

It remains to describe the customs and rites which were observed by the Romans at marriages (ritus nuptiales or nuptiarum solemnia justa, τὰ νομιζόμενα τῶν γαμῶν). After the parties had agreed to marry and the persons in whose potestas they were had consented, a meeting of friends was sometimes held at the house of the maiden for the purpose of settling the marriage-contract, which was called sponsalia, and written on tablets (tabulae legitimae)a, and signed by both parties (Juven. Sat. II.119, &c., VI.25, 200; Gellius, IV.4). The woman after she had promised to become the wife of a man was called sponsa, pacta, dicta, or sperata (Gell. l.c.; Plaut. Trinum. II.4.99; Nonius, IV p213). From Juvenal (Sat. VI.27) it appears p743that, at least during the imperial period, the man put a ring on the finger of his betrothed, as a pledge of his fidelity. This ring was probably, like all rings at this time, worn on the left hand, and on the finger next to the smallest (Macrob. Sat. VII.13). The last point to be fixed was the day on which the marriage was to take place. Towards the close of the republic it had become customary to betroth young girls when they were yet children; Augustus therefore limited the time during which a man was allowed to continue betrothed to a girl (Suet. Aug. 34), and forbade men to be betrothed to girls before the latter had completed their tenth year, so that the age of pubertas being twelve years, a girl might not be compelled to be betrothed longer than two years (Dion Cass. LIV. p609, Steph.)

The Romans believed that certain days were unfortunate for the performance of the marriage rites, either on account of the religious character of those days themselves, or on account of the days by which they were followed, as the woman had to perform certain religious rites on the day after her wedding, which could not take place on a dies ater. Days not suitable for entering upon matrimony were the Calends, Nones, and Ides of every month, all dies atri, the whole months of May (Ovid Fast. V.490; Plut. Quaest. Rom. p284) and February, and a great number of festivals (Macrob. Sat. I.15; Ovid Fast. II.557). Widows, on the other hand, might marry on days which were inauspicious for maidens (Macrob. Sat. l.c.; Plut. Quaest. Rom. p289).

On the wedding-day, which in the early times was never fixed upon without consulting the auspices (Cic. de Div. I.16; Val. Max. II.1 §1), the bride was dressed in a long white robe with a purple fringe or adorned with ribands (Juv. II.124). This dress was called tunica recta (Plin. H. N. VIII.48), and was bound round the waist with a girdle (corona, cingulum, or zona, Fest. s.v. Cingulo), which the husband had to untie in the evening. The bridal veil, called flammeum, was of a bright-yellow colour (Plin. H. N. XXI.8; Schol. ad Juv. VI.225), and her shoes likewise (Catull. LXII.10). Her hair was divided on this occasion with the point of a spear (Ovid. Fast. II.560; Arnob. adv. Gent. II. p91; Plut. Quaest. Rom. p285).

The only form of marriage which was celebrated with solemn religious rites, was that by confarreatio; the other forms being mere civil acts, were probably solemnised without any religious ceremony. In the case of a marriage by confarreatio, a sheep was sacrificed, and its skin was spread over two chairs, upon which the bride and bridegroom sat down with their heads covered (Serv. ad Aen. IV.374). Hereupon the marriage was completed by pronouncing a solemn formula or prayer, after which another sacrifice was offered. A cake was made of far and the mola salsa prepared by the Vestal virgins (Serv. ad Virg. Eclog. VIII.82), and carried before the bride when she was conducted to the residence of her husband. It is uncertain whether this cake is the same as that which is called mastaceum (Juv. Sat. VI.201), and which was in the evening distributed among the guests assembled at the house of the young husband.

The bride was conducted to the house of her husband in the evening. She was taken with apparent violence from the arms of her mother, or of the person who had to give her away. On her way she was accompanied by three boys dressed in the praetexta, and whose fathers and mothers were still alive (patrimi et matrimi). One of them carried before her a torch of white thorn (spina) or, according to others, of pine wood; the two others walked by her side supporting her by the arm (Fest. s.v. Patrimi et matrimi; Varro, ap. Carisium, I. p117; Plin. H. N. XVI.18). The bride herself carried a distaff and a spindle with wool (Plin. H. N. VIII.48; Plut. Quaest. Rom. p271). A boy called camillus carried in a covered vase (cumera, cumerum, or camillum) the so called utensils of the bride and playthings for children (crepundia, Fest. s.v. Cumeram; Plaut. Cistel. III.1.5). Besides these persons who officiated on the occasion, the procession was attended by a numerous train of friends both of the bride and the bridegroom, whose attendance was called officium and ad officium venire (Suet. Calig. 25, Claud. 26). Plutarch (Quaest. Rom. init.) speaks of five wax-candles which were used at marriages; if these were borne in the procession, it must have been to light the company which followed the bride; but it may also be that they were lighted during the marriage ceremony in the house of the bride.

When the procession arrived at the house of the bridegroom, the door of which was adorned with garlands and flowers, the bride was carried across the threshold by pronubi, i.e., men who had only been married to one woman, that she might not knock against it with her foot, which would have been an evil omen (Plut. Quaest. Rom. p271C; Plaut. Cas. IV.4.1). Before she entered the house, she wound wool around the door-posts of her new residence, and anointed them with lard (adeps suillus) or wolf's fat (adeps lupinus, Serv. ad Aen. IV.19; Plin. H. N. XXVIII.9). The husband received her with fire and water, which the woman had to touch. This was either a symbolic purification (for Serv. ad Aen. IV.104, says that the newly married couple washed their feet in this water), or it was a symbolic expression of welcome, as the interdicere aqua et igni was the formula for banishment. The bride saluted her husband with the words: ubi tu Caius, ego Caia (Plut. Quaest. Rom. l.c.). After she had entered the house with distaff and spindle, she was placed upon a sheep-skin, and here the keys of the house were delivered into her hands (Fest. s.v. Clavis). A repast (coena nuptialis) given by the husband to the whole train of relatives and friends who accompanied the bride, generally concluded the solemnity of the day (Plaut. Curc. V.2.61; Suet. Calig. 25). Many ancient writers mention a very popular song, Talasius or Talassio, which was sung at weddings (Plut. Quaest. Rom. l.c.; Liv. I.9; Dionys. Ant. Rom. II.31; Fest. s.v. Talassionem); but whether it was sung during the repast or during the procession is not quite clear, though we may infer from the story respecting the origin of the song, that it was sung while the procession was advancing towards the house of the husband.

It may easily be imagined that a solemnity like that of marriage did not take place among the merry and humorous Italians without a variety of jests and railleries, and Ovid (Fast. III.675) mentions obscene songs which were sung before the door of the bridal apartment by girls, after the company had left. These songs were probably the p744old Fescennina [Fescennina] , and are frequently called Epithalamia. At the end of the repast the bride was conducted by matrons who had not had more than one husband (pronubae), to the lectus genialis in the atrium, which was on this occasion magnificently adorned and strewed with flowers. On the following day the husband sometimes gave another entertainment to his friends, which was called repotia (Fest. s.v.; Horat. Sat. II.2.60), and the woman who on this day undertook the management of the house of her husband, had to perform certain religious rites (Macrob. Sat. I.15), on which account, as was observed above, it was necessary to select a day for the marriage which was not followed by a dies ater. These rites probably consisted of sacrifices to the dii Penates (Cic. de Republ. V.5).

The rites and ceremonies which have been mentioned above, are not described by any ancient writer in the order in which they took place, and the order adopted above rests in some measure merely upon conjecture. Nor is it, on the other hand, clear which of the rites belonged to each of the three forms of marriage. Thus much only is certain, that the most solemn ceremonies and those of a religious nature belonged to confarreatio.

The position of a Roman woman after marriage was very different from that of a Greek woman. The Roman presided over the whole household; she educated her children, watched over and preserved the honour of the house, and as the materfamilias she shared the honours and respect shown to her husband. Far from being confined like the Greek women to a distinct apartment, the Roman matron, at least during the better centuries of the republic, occupied the most important part of the house, the atrium (cf. Lipsius, Elect. I.17; Böttiger, Aldobrandin. Hochzeit, p124 &c.; Brissonius, De Ritu Nuptiarum, de Jure Connubii, Paris, 1564, 12mo.) [L. S.]

Thayer's Note:

a No marriage contract tablet has survived. In the dry climate of Egypt, however, a few Latin-language contracts survived on papyri, at least three of which can be seen online, with full translations, at the Michigan APIS site; an index page to them has been provided here by Dr. David Instone Brewer of the Tyndale House Institute for Early Christianity in the Graeco-Roman World.

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