The Historians' History of the World 05 [The Roman Republic]

No legislators have better defined marriage than have those of ancient Rome. “It is the union of two lives, the blending of two inheritances, a common interest in everything religious and temporal.” In this ancient notion of marriage we find the two principles which are the foundation of Christian and modern marriage—the indissolubility of the bond and monogamy.

We found in Greece something of oriental polygamy. In Italy, on the contrary, monogamy is as ancient as the foundation of Rome. It entered so deeply into the habits of the Romans that when later they introduced into the constitution a freer form of conjugal union, concubinage, they considered it, like legitimate marriage, under the law of monogamy. And this law could not be eluded, as at Athens, by the legitimisation of natural children. The ancient Roman law always excluded the natural children from the family circle. It admitted no legitimisation nor recognition; and that illegitimacy might not be hidden under the mask of adoption, such adoption was itself subject to an investigation by the pontiffs and the ratification of the entire people.

The principle of monogamy had its natural complement in the indissolubility of marriage, for marriage with a possible divorce is, as has been said, but a progressive polygamy. Marriage in ancient Rome was indissoluble. Doubtless this indissolubility is not written in the law. Roman legislation would not, as we have seen, touch family independence, nor tighten by legal constraint ties that natural affection had formed. But if divorce is authorised by the law, it is forbidden by religion and custom; the man who repudiates his wife is branded by the censor, he is excommunicated by the priest, and can only atone for his fault by sacrificing a portion of his worldly wealth at the altar of the divinities that presided at his union. This moral sanction was much more efficacious than the laws ever were. Divorce was not illegal, but morally it was impossible; and all the writers of antiquity agree in saying that they have only heard of one during five centuries.

It is sufficient to remember these two fundamental principles, which are as old as Rome—namely, monogamy and the indissolubility of marriage—to show the value of the vulgar opinion which represents marital power in ancient Rome as the most odious of all tyrannies. It is difficult to believe that the husband was a despot and the wife a slave, where an inviolable fidelity was the reciprocal duty of the two; and a closer study will convince us that a Roman marriage was a real union in which the husband’s authority did not exclude the independence of the wife. But to be certain in what this independence consisted, two kinds of marriage must be distinguished. Sometimes the wife, though married, lived at home under the authority of her father, or the guardianship of her agnates; sometimes these ties were broken by marriage and the wife went, according to the technical expression, in manum mariti, and had no other family than her husband’s. This last kind of marriage is without doubt the more ancient. The antiquity of its origin is revealed in the particular customs that went with it, and which are found, almost identically the same, in the most ancient legislations. It is then most probable that during the first centuries of Rome, the manus mariti was the inevitable result of marriage. From the day the newly married couple had offered a joint sacrifice to the divinities in the nuptial chamber, the wife had no other family agnates or heirs than her husband and his relatives. What became of the wife’s former family ties, the rights of the agnates to her guardianship and to her inheritance? Marriage had destroyed them forever. But in this there was a danger to which the legislators had soon to give their attention. The guardians of the wife cannot have been very ready to consent to a marriage which deprived them of all their rights, and without their consent marriage was impossible. Could they have been compelled to give up their rights? But these rights were sacred to the guardians of the family interest; for them it was a duty to prevent the patrimony of their ancestors from passing into the hands of strangers. To satisfy all conflicting claims, the ancient principle had to be entirely altered. Two things had to be separated which until then had seemed inseparable—marriage and the manus, that is to say, the change of family. Side by side with the ancient marriage accompanied by the regular formalities, a new marriage was devised which was contracted simply by consent and left the wife in her family under the guardianship of her agnates. The consent of the guardians was always necessary for the ancient marriage with manus; but it was not required for the marriage pure and simple, which left the rights of the agnates intact. This revolution in the family usage was already accomplished, or nearly so, at the time of the laws of the Twelve Tables.