Page:The Ancient City- A Study on the Religion, Laws, and Institutions of Greece and Rome.djvu/421

 CHAP, VIII. CHANGES IN PRIVATE LAW. 415 the process of a pretended sale, and dispose of his prop- erty. The most remarkable fact in tliis period of the history of Roman legislation is, that by the introduc- tion of certain new forms, the law extended its action and its benefits to the inferior orders. Ancient rules and formalities had only been applicable and were «itill applied only to religious fimilies; but new rules lud new methods of procedure were prepared which were applicable to the plebeians. For the same reason, and in consequence of the name needs, innovations were introduced into that part of the law which related to marriage. It is clear that the plebeian families did not contract the sacred marringe, and that for them the conjugal union rested only upon the mutual agreement of the parties (mutuus con- sensus), and on the afi'ection which they had promised each other {affectio maritalis). No formality, religious or civil, took place. This plebeian marriage finally prevailed in custom and in law ; but in the beginning the laws of the patrician city did not recognize it as at all binding. This lact had important consequences ; as the marital and paternal authority in the eyes of the patricians flowed only from the religious ceremony which had initiated the wife into the worship of the husband, it followed that the plebeian had not this power. The law recognized no family as his, and for him private law did not exist. This was a situation that could not last. A formality was therefore devised for the use of the plebeians, which, in civil affairs, had the same effect as the sacied marriage. They had recourse, as in case of the will, to a fictitious sale. not well informed as to this sort of will ; pcrliaps it was to the testament calatis comitiis what the assembly by centuries was to the assembly by curtes.