133 



likely that the Plebeians married without any foiTns, 

 political or religious ; and that at the side of so much 

 grave ceremoniousness of the Patricians the utter law- 

 lessness should have existed amongst the other orders, as 

 we are accustomed to read in the legal histories of 

 Rome. I am inclined to believe that different forms of 

 marriage, or rather different ceremonies in concluding a 

 marriage, have existed amongst the early Plebeians of 

 Rome, which they brought with them from their former 

 homes. 



The whole internal history of Rome shews us the 

 importance in wliich the family v/as held, and how her 

 political institutions were based upon the gens and familia, 

 so that it is impossible to believe that marriages were en- 

 tered upon in Rome in such a loose and formless way, in 

 which it is so often represented. The lawyers who 

 studied the legal and social history of Rome, observed 

 that there was no law which fixed any certain form for 

 entering upon a married life, and they drew the conclu- 

 sion, that the marriages were therefore devoid of every 

 form. But we find traces enough in the Roman social 

 history that there existed many forms, yet that these 

 forms, descended perhaps from different tribes who immi- 

 grated into Rome, lived on rather as customs than as 

 laws. The state, after the old religion had lost its 

 power over the legislation, did not venture to touch and 

 to fix legal forms for an institution which it considered as 

 not properly belonging to the province of law ; but it 

 recognised matrimony whenever it saw that a man and a 

 woman had the intention to live as husband and wife. 



The maritalis affectio was the principle by which it dis- 

 tinguished matrimony from the other connections of man 

 and woman. Under whatever forms this maritalis affectio 

 was to be declared, the state left to the consciences of 

 tlio iiulividnalt^ or to timc-linnmivod customs. 



