Page:The Green Bag (1889–1914), Volume 18.pdf/437

 406

THE GREEN BAG

and of an official holding a pair of copper scales (libripens), the purchaser with one hand on the thing to be transferred, with certain fit words, declared he purchased it with the coin he held in his hand and which after striking the scales with it he gave to the person parting with the article as a symbol of the purchase money. The purchaser thus acquired authority (manus) over the mov able. The idea came to some bright son of the people that as he now possessed the right to intermarry (connubium) with his plebeian love, the authority over her and her belongings might be obtained by this act of mancipation, and that his marriage would be as effectual and binding as that of his patrician neighbor. He tried, and the plan was recognized as legal; so it grew rapidly in favor. The scales, the official who weighed the money of the purchaser for the seller, and the five witnesses were all there, but as no real price was to be paid by the intending groom in his capacity of pur chaser the only coin needed was a single randasculum. Unfortunately the words used in this ceremony are lost. They probably differed from those used in an ordinary transfer of goods and chattels. According to many ancient authors, and as the word coemptio seems to some to suggest, each party bought the other; the man asked for and acquired a mater familias who would bear his children and preserve his family; while the woman sought and obtained a pater familias who supported her while the union lasted and in whose property she shared if death made her a widow. The ceremony had other observances, such as the joining of hands, and the uttering of the words of consent about Gaius and Gaia, but these were not demanded by law but rather by use and fashion; and there often were pri vate religious rites as well. Some see in this custom a relic of the old system of purchasing wives. Coemption is commonly called a form of marriage, but such language is not quite

correct. The marriage was completed sim ply by the interchange of mutual consent, and was quite distinct from the coemption which was strictly the acquisition by the husband of authority, or manus, over the wife; although originally generally con temporaneous with the marriage, yet in later days (according to Gaius) the coemp tion might follow the marriage at any dis tance of time. If the marriage was dis solved by divorce the manus still remained until put an end to by remancipation. on which a divorced wife was entitled to insist. Consent was ever the essence of a Roman marriage. No woman could be compelled to marry; it is true that girls frequently married when they were very young, often when only fourteen or fifteen years old, and probably then the influence of the father was predominant. But even in such cases the girl had to give her consent. That a marriage might be lawful it was necessary, (i) that the consent of the par ties was fully manifested; (2) that they were of proper age, the man at least four teen, the woman at least twelve; (3) they must have the legal power of contracting marriage, that is, they must be citizens, must not be within the prohibited degrees of relationship, and if they were under the authority of any one they must have that person's consent — the absence of such con sent made the union absolutely void so that even a subsequent approval did not ratify it. Gaius, in writing for the Romans in the second century of our era, says, "We must bear in mind that we may not marry any woman we please, for there are some from marrying whom we must refrain." He then proceeds to say that those who stand in the relation to one another of ascendants or descendants cannot contract marriage; nor is there connubium between them; nor can they marry even if the relation is onlv one of adoption. Marriage between brother and sister was prohibited, and if they were so by adoption they could not marry unless the adoption was dissolved. A man could