The three main roots of Western marriage and divorce law are the Hebrew and Christian doctrines, primitive Teutonic customs, and Roman law. 1 Having considered the origins in the Mosaic Code and in the teachings of Jesus we turn next to a review of the beginnings of divorce regulation in the early history of the Romans. While no complete Roman law code has come down to us there are fragments and commentaries sufficient to show the general situation at that time.
The Roman family at the beginning of the historic period was organized on the patriarchal basis in the most highly developed form to be found among early civilizations. The patria postestas or paternal sovereignty over the household was virtually absolute. Nowhere was this power established and exercised so completely, nor the status of wife and children so nearly that of slaves. Except as a matter of grace they enjoyed no privileges whatsoever.
Originating at some time prior to the regal period and lasting well toward the end of the Republic, manus marriage prevailed. At the time of marriage the bride passed from under the manus of her paterfamilias to that of her husband to whom, from that time on, she sustained a like relationship.
Three forms of manus marriage were recognized at the time of the formulation of the Twelve Tables, 450 B.C. The first was the patrician or semi-sacramental type of confarraetio, in which the essential ceremonial feature was the eating of a sacred cake in common--magically symbolic of the newly created unity of the wedded pair. The second was coemptio--a fictious form of sale--the survival of a former practice of wife-purchase but which no longer existed. The third was usus, a form of common law marriage which became legal and passed into manus if the wife remained in the domicile of her husband for a year without absence for three consecutive nights.
But there are evidences in the Twelve Tables of the breakdown of this highly developed system and of the emergence of the order of "free marriage" or marriage without manus. Just when the process of change began we do not know, but by the end of the Republic, manus marriage, largely had been superseded by the new type. In this form mutual consent was recognized 'and sometimes legally required, and while the wife was not completely absolved from the manus of her father, she was from that of her husband. Thus Professor L. T. Hobhouse remarks: "The Roman matron of the Empire was more fully her own mistress than the married woman of any earlier civilization, with the possible exception of a certain period of Egyptian history, and it must be added, than the wife of any later civilization down to our own generation."
Here, as elsewhere, divorce conformed to the nature of marriage. In the early manus form the husband's theoretical right to divorce his wife was practically absolute, except as he was restrained by property considerations, public opinion, or by the "advice" of the Censors. The wife had power neither to institute, to require, nor to prevent divorce.
Procedure was more or less rigidly prescribed. Marriage by confarreatio could be dissolved only by the countersacrifice of differeatio, which Plutarch described as an "awful rite" and which Fowler assumed to have been "used only for penal purposes." Coemptio and usus marriages were dissolved legally by the ceremony of remancipatio, which Rudolph Sohm suggests "was not so much an act of divorce as an act of discharge or repudiation."
It appears that at no time was Roman marriage indissoluble and that provision was made in the law for its dissolution, but all historians agree that at this period it was extremely rare. Professor Hobhouse says: "In practice marriage was so nearly indissoluble that the divorce of his wife by Spurius Carvilius Ruga in B.C. 231 was declared to be the first instance known since the foundation of the city. On the other hand, it must be remembered that the unfaithful wife might be put to death without trial, and that the husband who had other good causes of complaint would be supported by the family council in executing or in repudiating her. This claim of infrequency if construed literally was probably an exaggeration. Ruga's wife was divorced for sterility by order of the Censor and Lord Bryce contends that the sweeping statement of the authorities meant merely that it was the first instance of divorce in which no crime was alleged.
For some time, however, certain limitations upon the right of the husband to divorce his wife were growing up in the form of prescribed causes. According to Patrick Colquhoun, "The Law of Romulus permitted the husband to repudiate his wife for three causes--adultery, preparing poisons, and the falsification of keys." Concerning the law of the Twelve Tables, the same author says:
"We are not aware what were the valid grounds of divorce by the law of the Twelve Tables. That the reciprocal right of repudiation is certain; that the restrictions of Romulus were enlarged admits of just as little doubt; and it may be inferred that any divorce, or at least repudiation, insisted upon for causes other than those mentioned, was visited by the fine to which Spurius Carvillius Ruga was exposed, namely, the forfeiture of half his property to Ceres, and of the other half to the woman; at any rate, the censors and the public opinion appear to have exercised a wholesome restraining influence, tending to check liberty and temerity."
The conditions which produced the change from manus to free marriage affected likewise a radical change in the status of divorce. The process was the work of centuries but in the end the results appeared as little short of revolutionary. Just as marriage became a simple private agreement on the basis of mutual consent, so divorce likewise became an informal transaction without court or magisterial intervention, by joint agreement, or at the behest of either party. "To this liberty," says Professor G. E. Howard, "there was but one exception, the freedwoman might not repudiate her patron, her former master, who had taken her in marriage. In all other cases the divorce, however arbitrary or unjust, was legally effective."
Another aspect of the transition is described by Westermarck: "The rules of divorce which were recognized in the case of free marriage were afterwards extended to marriage with manus. A wife in manu could not, it is true, directly affect the extinction of the manus by means of a repudium; but according to the view of the later times, the wife's repudium operated indirectly to dissolve even marriages with manus, by compelling the husband in his turn to take all necessary steps for the purpose of extinguishing the manus. And in the end marriages with manus fell into disuse altogether."
Thus from a condition in which divorce was almost non-existent the situation had changed to that in which it had become one of exceptional frequency, which called forth satirical comments by Tacitus and other writers.
On the changed legal attitude involved, Professor Munroe Smith says:
"Until some modern statute-maker shall allow the husband to repudiate the wife at his own good pleasure without judicial proceedings, on the sole condition that, if the repudiation be on other than certain legally specified grounds, he surrender all the property which she may have brought with her and make over to her any property which he may have settled on her for the event of widowhood-until that time the Roman divorce legislation, even in its most restricted phases, will hold the record of latitude." In the course of time, quite naturally, there grew up a mass of restrictive legislation embodying current attitudes toward divorce, defining the appropriate grounds upon which the parties might sue.
The following summary of divorce acts in the Code of Justinian, 533 A.D. is given by Colquhoun:
"Mutual consent would not effect a divorce bona gratia, although it was allowed for impotency. If it was to be effected mala gratia, or by one party, the legal grounds were sufficient without the interference of the clergy, and these grounds may have consisted in a certain incompetency, or in the delict of one party called divoritum ob indignationem. Six of these grounds were in favor of the man as against the woman: for conspiracy against the state without his knowledge, which Justinian terms the most damnable of crimes; for adultery; for attempting her husband's life, or even not protecting him from danger; for absenting herself covertly from the house; for attending public spectacles without his permission; for holding assignations with men or bathing with them for licentious purposes. In like manner five applied in favor of the woman as against the man: For conspiracy against the state, or concealment of conspiracy; for attempting her life, or omitting to protect her against the attempts of others; for attempting to prostitute her to others; for falsely accusing her of adultery; for not quitting the intimacy of other women after two warnings."
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