and their ambition was unsuccessfully resisted by the gravity of Cato the Censor.[1] They declined the solemnities of the old nuptials, defeated the annual prescription by an absence of three days, and, without losing their name or independence, subscribed the liberal and definite terms of a marriage-contract. Of their private fortunes they communicated the use, and secured the property; the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rites were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods;[2] and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects is directed by the earthly motives of justice, policy, and the natural freedom of both sexes.[3]
Liberty and abuse of divorce Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but- ↑ On the Oppian law we may hear the mitigating speech of Valerius Flaccus and the severe censorial oration of the elder Cato (Liv. xxxiv. 1-8). But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius (x. 23).
- ↑ For the system of Jewish and Catholic matrimony, see Selden (Uxor Ebraica, Opp. vol. ii. p. 529-860), Bingham (Christian Antiquities, l. xxii.), and Chardon (Hist. des Sacremens, tom. vi.).
- ↑ The civil laws of marriage are exposed in the Institutes (l. i. tit. x.), the Pandects (l. xxiii. xxiv. xxv.), and the Code (l. v.); but, as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591), and the Collatio Legum Mosaicarum (tit. xvi. p. 790, 791), with the Notes of Pithœus and Schulting. They find, in the commentary of Servius (on the 1st Georgic and the 4th Æneid), two curious passages.
