501 



MARRIAGE, ROMAN. 



MARS. 



02 



This rule is however subject to some exceptions, as where marriages, 

 contracted according to the law of the country (lex loci), are considered, 

 in the courts in which their validity happens to be contested as con- 

 tracted in violation of some principle of natural religion or morality, or 

 as where, in Persia or Turkey, a man marries a second wife in the life- 

 time of the first. 



A constitution of the emperor Constantino, restored in ,476 

 by the emperor Zeno (Cud., lib. 5, tit. 27, 1., 6), enabled the husband 

 of a concubina who had children by her, without having had any 

 child ex justia nuptiis, to raise the concubina to the dignity of 

 justa uxor, and to confer on those children the privilege of children 

 bom ex just is nuptiis, though actually born ex concubinatu. 

 This was carried still further when marriage was invested with a 

 religious character. Its efficacy as a sacrament was regarded as so 

 powerful, as to have a retrospective operation upon children born at the 

 time when there was no semblance or intention of marriage of any 

 kind, provided that at the time of the birth there existed no impedi- 

 ment to the marriage of the parents. Alexander III., who filled the 

 papal chair from 1159 to 1181, pronounces that " Tanta est vis matri- 

 tnonii, ut qui antea sunt geniti, post contractum matrimonium, 

 legitimi habeantur." Extrarag., cap. 6, " Qui filii sunt legit." 

 (Pothier, Traitt du Cantratt'de Manage.) This modification of the 

 law of legitimacy, though frequently recommended by the clergy, 

 was never adopted in England by the laity. It is however the law 

 of Scotland aa well as of France, and of most other Roman Catholic 

 countries. 



MARRIAGE, ROMAN. The right conception of the Roman 

 institution of marriage and of its legal consequences is essential to 

 enable us to approximate to a proper understanding of the old Roman 

 polity. 



Children were in the power of their father [EMAXCIPATIO] only when 

 they were the offspring of a legal marriage (juste nuptiie, or justum 

 matrimonium). The cases of legitimation and adoption need not be 

 considered here. To constitute such a legal marriage there must be 

 i n the parties cnnnubium, the nature of which condition is best 

 explained by an example : Between a Roman citizen and the daughter 

 of a Roman citizen there was cmnubium, and as a consequence the 

 children of such marriage were Roman citizens, and in the power of 

 their father. Between a Roman citizen and a female slave (ancilla) 

 there was no eonnuUum, and consequently the children which sprung 

 from such a union were not Roman citizens. Whenever there was no 

 connubium, the children followed the condition of the mother : when 

 there was connulrium, they followed the condition of the father. Various 

 degree* of consanguinity, as the relation of parent and child, prevented 

 connubial* between parties in such a relation. After the Emperor 

 Claudius had married Agrippina, his brother's daughter, such relation- 

 ship was no longer an impediment to a legal marriage ; but the license 

 was carried no further than was warranted by the decree of the senate, 

 and the marriage of an uncle with his sister's daughter remained, as 

 before, an illegal union. (Tacit., ' Anna!.,' xii. 7 ; Uaius, i. s. 62.) 

 Further, to constitute a legal marriage, the two parties must be of 

 sufficient bodily maturity ; both parties also must consent, if they are 

 capable of giving a legal consent (sui juris) ; or if not, their parents 

 must consent. 



The ceremonial parts of the marriage were of three kinds, by any 

 one of which the wife was said to come into the hand of the husband 

 (in manum), and to occupy the legal relation of a daughter. A woman 

 who lived for one year with a man without interruption, became hia 

 wife by virtue of this cohabitation (usus). As in the case of all move- 

 able*, by the laws of the Twelve Tables, one year's enjoyment of a 

 thing transferred the ownership of it, so by one year's uninterrupted 

 cohabitation the husband acquired that interest in the wife which was 

 the result of complete marriage. The Twelve Tables provided that 

 if the wife wished to avoid the legal effect of this cohabitation, it 

 was only necessary to absent herself from her husband for three 

 nights during the year, which would be a sufficient legal interruption 

 to the usus. In the time of Uaius, this part of the old law had 

 been partly abolished by enactments, and had partly fallen into 

 disuse. 



The C< .nfarreatio, so called from the use of a loaf of bread on the 

 occasion, appears to have been of the nature of a religious ceremony, 

 and it existed in the tim of Gains. It appears that certain offices, 

 such as that of Fhmen Dialis, could be held only by those who were 

 bom of parents who had been married by the ceremony of Confarreatio. 

 , i. 112; Tacit., ' Ann., 1 iv., 16.) 



The Coemptio was, in form, a sale (mancipatio) before five witnesses. 

 [HAJICIPU'M.J The Coemptio might be made either between a woman 

 and her intended husband, in which case she became, in contemplate m 

 of law, his daughter, or between a woman and a stranger (fiiluei;o 

 causa), which was a necessary legal process in case a woman wished to 

 change one guardian for another, or to acquire the privilege of making 

 a will. For until the senatus consultum passed in the time of Hadrian 

 no woman couldimake a testamentary disposition (with the exception of 

 certain privileged persons), unless she had contracted the Cocmptio, 

 that is, had been sold, and then resold and manumitted. The Coempti' >. 

 being effected by mancipatio, worked a legal change of status (' Dig.,' 

 4. 5. 1), or diminutio eapitii ; and it was the least of the three kinds of 

 dimtmaio capitii, or that by which a person underwent no change in 



his civil capacity, except the being transferred into another family. 

 (Paulus, ' Dig.,' 4. 5. 11.) This explanation will render intelligible the 

 passage of Cicero on the testamentary power of women (' Topic.,' 4), 

 taken in connection with Gaius (i. 115, &e.). The essays of Hoffmann 

 and Savigny, in the ' Zeitschrift fur Geschichtliche Rechtswissenschaf t,' 

 vol. iil, p. 309, &c., may also be read with advantage. 



A gift from husband to wife, or from wife to husband, was void 

 (with some few exceptions). The transaction was the same as if 

 nothing had been done. The Donatio mortis causa, or divortii causa, 

 in contemplation of death, or in consideration of divorce, was a valid 

 gift. 



There could be no dos (marriage portion), unless there was juatum 

 matrimonium. The term dot comprehended both what the wife brought 

 to the husband on her own account, and what was given or contracted 

 to be given by any other person, in consideration and for the purposes 

 of the marriage. (' Dig.,' 23. 3. 7C.) When the dos came from the 

 wife's father, it was called proffcticia, but when from any other person, 

 I'M. It was a general rule that the doa ad-eenticia remained 

 with the husband, unless there was some agreement to the contrary, 

 in which case it was called dos recepticia. What came into the 

 husband's possession, not as rfos, was included in the term Parapherna 

 (Trapd<pfpva), or Paraphernalia, and did not become the property of the 

 husband. All kinds of property could be the subject of dos. If they 

 were things that could be estimated by number, weight, and measure 

 (res fungibiles), the husband took them, subject to the liability in ease 

 of a dissolution of the marriage, of restoring things to the same number, 

 weight, and measure. Tilings given as dus might be valued or not 

 valued (sestimata and inscatimata) ; in case they were valued, the com- 

 plete ownership of them passed to the husband, inasmuch as the 

 valuation was in the nature of a sale, and the husband could dispose 

 of the things as he pleased, subject only to the liability of restoring 

 their value, in case of a dissolution of the marriage. If the things 

 were not valued, and any loss ensued, without the fault or culpable 

 neglect of the husband, the loss fell on the wife. In the case of things 

 which were not fungibiles or not valued, the ownership during the 

 marriage might be considered as in the husband, and as returning to 

 the wife on the dissolution of the marriage. In such a case the 

 husband could manage the wife's property as his own ; he enjoyed the 

 profits of it during the marriage, and could sell it. With some ex- 

 ceptions, however, he could not sell or dispose of the wife's immove- 

 able property which was included in the dos (dotale praedium). 

 (Gaius, ii. 63 ; ' Instit.,' ii., tit. 8.) The portion became the husband's 

 on the solemnisation of the marriage, and he had the profits of it 

 during the marriage. In the case of divorce the portion, or a part of it, 

 according to circumstances, was restored. In case the wife died during 

 the subsistence of a marriage, part returned to her father, and part 

 remained to the children of the marriage, if any ; but it might, by the 

 terms of the marriage contract, become the husband's, even if there 

 were no children of the marriage. As to the portion of the wife, what- 

 ever might have been originally the rights of the husband over it by 

 virtue of the marriage, it was in later times the subject of the express 

 stipulations of the marriage settlement. The questions of law 

 which arose on the subject of the d'jt were numerous and sometimes 

 difficult. 



In enumerating the modes by which a man may acquire property 

 perunirersilatrm, Gaius mentions marriage, by which a woman comes 

 in manum riri, and he observes that all things pass to the husband. 

 The meaning of this passage is perhaps not quite certain ; but it is 

 partly explained by what has been already said. 



(/% 23, tit. 3, ' De Jure Dotium ; ' tit. 5, ' De Fundo dotali ; ' 

 Ulpian, Fray., vi., ' De Dotibus ; ' Thibaut, System det Pandekten-Rechti. 

 See Lindley's translation.) 



MARRUBIUM VULGATtE (White Horehound), a biennial or 

 perennial herbaceous plant, common by roadsides, the officinal part of 

 which is the leaves ; these are to be collected without the stalks. 

 They are of a whitish-gray woolly appearance, possessed^ of a faint 

 odour, which becomes less by drying, and a bitter sharp taste. Ten 

 pounds of leaves yield four pounds of extract. Their chief constituents 

 are a bitter extractive, with a volatile oil, and probably some astringent 

 matter. 



White horehound, when young, is apt to be confounded with many 

 other labiate plants, particularly the Ballota nigra, or black horehound, 

 which possesses a disagreeable odour. The medicinal properties of 

 horehound are very insignificant, being demulcent, slightly tonic, and 

 astringent. As a popular remedy, it enjoys great favour in many pul- 

 monary complaints ; but the preparations vended under the name of 

 horehound often contain more efficient ingredients, to which they owe 

 their success, especially opiates. 



MARS, the planet which comes next to the earth in order of 

 distance from the sun, is a brilliant star, of a slightly red tint. On 

 examination in a telescope, this colour is found to belong to parts of 

 the surface of 'the planet, which have been conjectured to be land ; 

 the rest, which appears somewhat green, being supposed to be sea. 

 Certain white spots, which appear at each pole after the winter of its 

 hemisphere, and disappear during its summer, have been conjectured 

 to be snow. The apparent diameter of Mars varies from 3 "'6 to 18" '28, 

 being 6"'"29 when the planet is at its mean distance from the earth. 

 The real diameter is -517 of that of the earth, or about 4100 miles. 



