In Roman law no legal marriage could be contracted unless there was connubium between the parties. Originally there was no connubium between plebs and patricians, and the privilege was conceded after a long struggle by the Lex Canuleia. In later times Latini and Peregrini were excluded from connubium except where the right had been expressly conferred. The great matrimonial law of the early empire (Lex Julia et Papia Poppaea) introduced restrictions depending on the condition of the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freed women or women of inferior rank, and the husband of a freed woman becoming a senator was set free from his marriage. In the canon law new restrictions were developed. Persons who bound themselves not to marry were deemed incapable of marrying. The order of the clergy were forbidden to marry. And disparity of faith was recognized by the early church as a bar to matrimony, e.g. between Christians and pagans and between orthodox and heretics (see Dictionary of Christian Antiquities, art. “Marriage”).
Concubinage, which such restrictions tended to develop, is noticed under a separate heading (q.v.). It might be described as marriage which has no consequences, or only slight and peculiar consequences, in legal status. In the left-handed or “morganatic” marriages of the German royal families we have the nearest approach ever made by concubinage to true marriage, the children being legitimate, but neither they nor the wife acquiring any right to the rank or fortune of the husband. The marriage of persons of different religions frequently requires the intervention of the law as to the faith of the children, more particularly in Europe as between Roman Catholics and Protestants. English law gives the father, except under special circumstances, the right to dictate the faith of his children (see Infant). The practice on this point varies in Europe—the question being ignored in French law, Germany following in some parts the same rule as En land, in others giving effect to ante-nuptial stipulations. In Ireland mixed marriages (i.e. between Roman Catholic and Protestant) were by 19 Geo. II. c. 13 null and void if celebrated by a Roman Catholic priest. This act was repealed by 33 & 34 Vict. c. 110, which permits mixed marriages to be validly celebrated by an Episcopalian or Roman Catholic clergyman, subject to conditions set forth in § 38.
Roman law.—The three primitive modes of marriage were confarreatio, coemptio in manum, and usus, all of which had the effect of placing the woman in the “power” (manus) of her husband, and on the same footing as the children. The first was a religious ceremony before ten witnesses, in which an ox was sacrificed and a wheaten cake broken and divided between the spouses by the priest. Coemptio was a conveyance of the woman by mancipatio, and might be described as a fictitious sale per aes et libram, like that employed in emancipation and testamentary disposition and other processes. Usus was the acquisition of the wife by prescription, through her cohabiting with the husband for one year, without having been absent from his house three continuous nights. But a true marriage might be concluded without adopting any of these modes, and they all fell into desuetude and with them the subjection of the wife to the manus. Marriage without manus was contracted by the interchange of consent, without writing or formality of any kind. By some jurists it is regarded as incomplete until consummated by delivery of the woman, and is accordingly referred to the class of real contracts. The restrictions as to age, relationship by consanguinity and affinity, previous marriage, &c., were in the main those which have continued to prevail in modern Europe with one important exception. The consent of the paterfamilias to the marriage of the children under his power was essential.
Canon law.—The canon law of marriage is based partly on the Roman law, the validity of which the Church from the first recognized, partly on the Jewish law as modified by the new principles introduced by Christ and his apostles, developed by the fathers of the Church and medieval school men, and regulated and defined by popes and councils. The most important of these principles was that of the indissolubility of marriage, proclaimed by Christ without qualification according to Mark x. 11, 12, and with the qualifying clause “saving for the cause of fornication” according to Matt. v. 32. This lofty view of marriage, according to which man and wife are made “one flesh” by the act of God (“What therefore God hath joined together, let no man put asunder,” Mark x. 9) was, however, modified by the idea of the consummating act of marriage as in itself something unholy, a result of the Fall. Christ himself, indeed, did not teach this; but for St Paul marriage is clearly a concession to the weakness of the flesh (1 Cor. vii.). “The time is short,” and in view of the imminent coming of the Lord the procreation of children a matter of no importance (v. 29), but “it is better to marry than to burn” (v. 9). He is, however, obviously not clear on the point, and at the end of his argument strikes a note of doubt (v. 40); elsewhere he defends marriage, against those who would have forbidden it altogether, as a gift of God (1 Tit. iv. 3-5) and even, in seeming contradiction to 1 Cor. vii. 29, commands the bearing of children (1 Tit. v. 14). Finally it is to St Paul that the idea of marriage as a sacrament is to be traced, in the mystic comparison of the relations of husband and wife to those of Christ and his Church (Eph. v. 23-32). These are the main foundations in Scripture on which the Christian law of marriage is built up, and they are obviously principles which admit of a large amount of variety of interpretation and of practice. They were developed in the early Church under the influence of the rapidly growing passion for the celibate life, partly an outcome of the same dualistic principle which produced the asceticism of the Jewish Essenes and of the Gnostics, partly perhaps a natural reaction from the appalling moral corruption of the decaying empire. Marriage, it is true, from being no more than a terminable civil contract, became a thing holy, a mystic union of souls and bodies never to be divided; valid, indeed, but not spiritually complete, without the public blessing of the Church (Tertullian, Ad uxorem, lib. ii. cap. 9); and from Augustine's time onward it was reckoned as a sacrament. But at the same time there was a tendency to restrict its rights and its range. So far as marriage was a physical union, this had for its object solely the perpetuation of the race and the avoidance of fornication; the most that was conceded was that the intention of having offspring not only made the conjugal act blameless, but even gave to the desire that inspired it an element of good (Augustine, de nupt. et conc. 3). But the ideal married life was that attributed to Mary and Joseph. Thus Augustine cited this as an example that a true marriage may exist where there is a mutual vow of chastity (op. cit. 12), and held that the sooner this relation was established the better (de bono conjug. 22). Marriage being then an inferior state, to be discouraged rather than the reverse, the tendency was rapidly to narrow the field within which it might be contracted. Remarriage (bigamy) was only allowed after many struggles, and then only to the laity; St Paul had laid down that a “bishop” must be “the husband of one wife,” and to this day the priests of the Orthodox Eastern Church may not remarry. Clerical celibacy, at first a counsel of perfection, was soon to become the rule of the Church, though it was long before it was universally enforced in the West; in the East it still applies only to monks, nuns and bishops (see Celibacy). The marriage of the laity was hampered by the creation of a number of impediments. The few and definite prohibitions of the Roman and of the Jewish law (Lev. xviii. 6-18; xx.) in the matter of marriage between kindred, were indefinitely extended; until in 506 the council of Agde laid it down that any consanguinity or affinity whatever constituted an impediment. Moreover, man and wife being “one flesh,” the Church exaggerated relationship by affinity into equal importance with that of consanguinity as an impediment to matrimony; and, finally, to all this added the impediments created by “spirtual affinity,” i.e. the relations established between baptizer and baptized, confirmer and confirmed, and between godparents, their godchildren and their godchildren's relatives.
The result of this system was hopeless confusion and
- The restrictions are enumerated in the following lines:—
Error, Conditio, Votum, Cognatio, Crimen,
Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas,
Aetas, Affinis, si Clandestinus et Impos,
Raptave sit mulier nec parti reddita tutae.
- Canon lxi. Ant qui ex propria consanguinitate aliquam, aut quam consanguineous habuit . . . duceret uxorem . . . incestos esse non dubitamus (Mansi Conc. viii. p. 336). According to the canon law “affinity” is the relation between two persons of whom one has had commerce, licit or illicit, with a relation of the other.