CASE 19: An Archaic Wedding Ceremony
Gaius, Institutiones 1.110, 112
(110) Olim itaque tribus modis in manum conveniebant: usu, farreo, coemptione....
(112) Farreo in manum conveniunt per quoddam genus sacrificii, quod lovi Farreo fit: in quo farreus panis adhibetur, unde etiam confarreatio dicitur: conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus verbis praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est: nam flamines maiores, id est Diales, Martiales, Quirinales, item reges sacrorum, nisi ex farreatis nati non leguntur: ac ne ipsi quidem sine confarreatione sacerdotium habere possunt.(Gaius in the first book of his Institutes)
(110) At one time women entered into the manus (of their husbands) in three ways: by usage, by sacrificial cake (farreum), or by formal purchase.... (112) They entered into manus by farreum through a kind of sacrifice made to Jupiter Farreus. In this, a loaf of emmer bread is used, hence it is called confarreatio. In carrying out this procedure, many things are enacted and done with prescribed and ceremonial words, in the presence of ten witnesses. This procedure is still in use today. For the greater priests (flamines), that is, those of Jupiter, Mars, and Quirinus, along with the King of Sacrifices (rex sacrorum), are chosen only from the sons of couples married by confarreatio; and they themselves cannot hold the priesthood unless married by confarreatio.
1. Manus Marriage. In the earliest forms of Roman marriage usually the bride left the familia of her father (his patria potestas ended) and entered into the manus—literally, the “hand,” or the control—of her husband.
Gaius describes three ways in which this occurred, but he plainly regards manus as a historical relic; in classical marriage, a married woman remains in the control of her paterfamilias and becomes sui iuris upon his death, and her husband exercises only very limited power over her (see below, Part C). On manus, see further Part C.1 below. Although classical jurists still occasionally speak of manus marriages as a living possibility, in fact it seems to have virtually disappeared by the end of the Roman Republic.2. The Role of Ceremony. Confarreatio, described in this Case, is a typical archaic Roman ceremony. It emphasizes a precise ritual leading to marriage, and the ritual is witnessed. Gaius's description should lead you to think a little about the role of ceremony in relation to marriage, since ceremony continues to be a very common part of modern weddings. What different purposes do such ceremonies serve, both as marking a distinct stage in the personal lives of the marrying couple and as advertising to the world the transformation of their relationship? The ceremony of confarreatio was, as Gaius suggests, originally associated with the elite of the archaic Roman state; perhaps it was even reserved for patricians. In the classical period, the ceremony seems to have survived only because the incumbents of certain ancient priesthoods had to be the issue of marriages formed by confarreatio. But because the ceremony moved the wife into the burdensome manus relationship, it became increasingly unpopular; and the Romans, who found it difficult to locate candidates for these priesthoods, eventually were forced to limit this particular manus to the sacred sphere alone (Gaius, Inst. 1.136; see Tacitus, Annales 4.16).
3. Coemptio and Usus.
Gaius describes two other means for creating a manus marriage:• Coemptio (purchase) is an imaginary sale, with prescribed words, in which the brides paterfamilias hands her over to the groom in the presence of witnesses (Inst. 1.113); the legal result is the same as with confarreatio. The ceremony used for this purpose is an adapted form of mancipation, an almost infinitely flexible ritual that the Romans used also for adopting and emancipating children (see Case 149) and for making wills (Case 171, where the procedure is described); no money actually changes hands, although the parties may separately arrange for a dowry. Gaius strongly implies that coemptio was still a living institution in his day (the mid-second century A.D.), but there is little other evidence for its survival that late. Although in form coemptio resembles the sale of the bride to the groom or his family, this sale was unreal in historical times (i.e., no actual money was paid to the brides family). We have no clear evidence that the sale had ever been a true one, although the practice of paying a brideprice (the reverse of dowry) was widely found among the Roman Empires Celtic and Germanic neighbors.
• The other means for entering a manus marriage is through “usage” (usus), which is not a ceremony but a sort of right that arises from long-term cohabitation: if the husband and wife live together for one continuous year, she becomes subject to her husbands manus, but she can escape this outcome by absenting herself from the household for three nights each year (Inst. 1.111). Originally, usus was perhaps thought of as a catchall that would bring every married woman into manus eventually, even if there was some formal defect in a marriage ceremony; but the ability of women to escape from manus clearly raises the possibility of non-manus marriage as an alternative to traditional manus marriage. Gaius says that by his own day usus had been undermined by statutes and had fallen into disuse.