410
THE GREEN BAG
before the law; if there was any difference, at least with reference to the Justinian leg islation, the wife was the more privileged of the two in respect both of the protection and indulgence accorded her. Manus hav ing ceased, marriage by confarreation and coemption also came to an end, and the simple interchange of consent made lawful wedlock, except between persons of rank, or when the intention was to legitimatize children already born; in this latter case a written marriage settlement was required, and in the former either such a settlement or a marriage in church before the bishop, or at least three clerical witnesses who granted and signed a certificate of the completed union. (Enc. Brit. ib. pp. 707, 712.) The practical effect of the general adop tion of marriage by mere consent was the absolute legal independence of the wife. With the exception of her dowry she held her property in her own right, she inherited her share of her father's property and kept it in her own hands. A very considerable portion of the riches of Rome passed into the uncontrolled possession of women. The purpose of the Lex Papia Poppaca being to discourage celibacy and encourage fruitful marriages, naturally these provi sions were abolished, under the Christian emperors, when celibacy had come to be in culcated as a virtue and as the peculiar char acteristic of a holy life. Lecky points out that there is probably no period in which examples of conjugal heroism and fidelity appear more frequently than in the age when marriage was most free and in which corruption was so gen eral. Much simplicity of manners continued to exist with the excesses of an almost un bridled luxury. He refers to Cornelia, the brilliant, devoted wife of Pompey; Marcia, the friend of Helvia, the mother and Pauline, the wife, of Seneca; the modest Mallonia; the tender and heroic Porcia; the brave Arria, the wife of Paetus, and her daughter, the wife of Thrasea; and asserts that such instances of devotion were not un
common and that in Roman epitaphs no feature is more remarkable than the deep and passionate expressions of conjugal love that continually occur. The elder Cato said, "A man who beats his wife or his children lays impious hands on that which is most holy and most sacred in the world." The Romans with all their licentiousness and laxity of morals never sanctioned poly gamy, except, indeed, for a short time in the reign of Valentinian the First, who wishing to marry a second wife himself made the right to do so general. But the old laws were soon revived by Justinian. In fact, mono gamy was from the earliest time strictly en joined; and one of the greatest benefits that have resulted from the expansion of the Roman power is that it made monogamy the dominant rule in Europe. (Lecky, His. of European Morals, Vol. II, ch. V.) His religion taught the Roman that the con jugal union was something more than the relation of sexes and a fleeting affection, and it united man and wife by the powerful bond of the same worship and the same be lief. The marriage ceremony (in confarrea tion), too, was so solemn and produced ef fects so grave, that it is not surprising that these men did not think it permitted or pos sible to have more than one wife in each house. Principal Donaldson says, "Examining history, then, I think that we must come to the conclusion that the Roman ideas of marriage 'had not a bad effect either on the happiness or morals of women." (The Posi tion of Women in Ancient Rome, Cont. Re view, 1888, vol. II.) Concubinage was recognized and regu lated by law; it was a permanent cohabitation between parties to whose marriage there was no legal objection, although such a union had not the sanction of matrimony. Wherever a legal obstacle to marriage ex isted, the law inflicted punishment upon the parties if they lived in concubinage, unless the obstacle was one founded merely on
