History of The Marriage License: Rome, Barbarians and The Church

 

By D.I. Muhammad 

As empires expanded and cultures merged, marriage became increasingly shaped by legal codes and religious authority. In Rome, marriage was recognized through civil law and family consent, while Germanic customs emphasized kinship alliances and dowry exchanges. Over time, the Christian Church began asserting influence, gradually transforming marriage from a family contract into a sacramental institution. These overlapping traditions laid the foundation for the formal marriage regulations that would later emerge in medieval Europe.

As we move over into Rome, we find that Christianity has slowly entered I to the lives of the people.


The family being considered an intergal, and autonomous mini-state. Rome at that time was guided by Augustus from 27B.C.- A.D. 14. The Barbarians, Germanic people, were also peacefully immigrating onto the land. 

"Coincident with the Great Migrations was the rise of the Christian Church from powerless, persecuted splinter sect to state religion of the Roman Empire. It enjoyed extraordinary success with the barbarians. Where the Roman proletariat came over gradually and the Roman elite tardily and reluctantly, the Germanic invaders of all national persuasions embraced Christianity with innocent enthusiasm,  even though some of its doctrine promised serious conflict with barbarian custom, as it did with Roman law." 

(Marriage and Family, pg. 40, Ch. 2, Roots: Roman, German, Christian)

The Roman family consisted of a larger group dynamic known as a familia. 

" Like the Greeks, the Roman's gave a name to the parent-child unit but to the larger group contained in the household (Latin familia, Greek oikos).  A poor household might comprise parents, children, and other relatives such as a brother's widow or a grandmother. A middling household might also include three or four servants, whether free or slave. A wealthy household numbered scores of persons, mostly slaves; a very wealthy one, hundreds." 

(Marriage and Family, Ch. 2, pg.40,  Roots: Roman, German, Christian)


Roman familia was economic, social, legal, educational, and the religious unit of society. 

" The economic role comes first, because the family's function as chief producing unit was the basis for all the other roles, which flowed naturally from this one. Property was held jointly by the family.  Individual members, blood- related or not, slave or free, owned little property and had few rights as individuals. Crime was punished within the family or settled between families,  public law only rarely intervening on occasions when the security of the state was affected or public order threatened. Religious worship was so strictly centered in home and hearth that a modern writer has described Roman religion as " hardly more than a spiritualization of family life." 

"The "high gods" of the Olympic pantheon were more literary symbols than objects of worship. The function of the temples of Rome was largely restricted to requests for special favors. In contrast, every household had its private altar, whose sacred flame was kept perpetually burning by the vigilant devotion of the women. There the entire household gathered to worship." 

(Marriage and Family, pg.41,  Ch. 2, Roots: Roman, German, Christian)


It is important to note how Roman religious life functioned prior to the institutional dominance of the Church, as later ecclesiastical reforms dramatically altered daily practice.


Familia was not those who lived in the home, but the ancestors who were highly acknowledged in their religious observance were considered apart of what is called gens, or clan. 

"...the large kinship group described as consisting of all persons descended from a founding ancestor, real or mythical. The distinctive Roman system of nomenclature was based on it."  "Families belonging to the gens were divided into two classes, the Patricia's or true members, and the clients, who formed an auxiliary underclass. In structure every Roman family was autocratic.  The head of the household,  whether father, grandfather, uncle,  or slave owner in relation to its other members, under the title of paterfamilias occupied the position of petty absolute monarch."

 (Marriage and Family, Ch. 2, pgs. 42-43, Roots: Roman, German, Christian)


Marriage in Medieval Rome


Just as in Sumeria and Ancient Egypt,  marriage was performed without a need for a clergy member, and was not viewed as a necessary permission by the state. The dowry existed,  but in a sense not for the bride, but for the groom, to help assist with the marriage.

"...the distinctive feature of Roman marriage was its private, familial character. In the time of Augustus nearly all Roman's married without benefit of clergy, and at no time was an official of the state involved. Nevertheless,  Roman marriage had a strongly legal significance.  The principal element in early Roman marriage, the bride purchase ( coemptio), by historic times had dismissed to a token payment. Simultaneously  there appeared the dowry (dos), a payment in the opposite sense, a contribution from the bride's family,  seeming to imply a shift in the marriage market from demand for bride's to demand for husbands. The dowry differs from the bride purchase in another way. Where the purchase price went to the bride's family or Kinsmen, the dowry went to the bridegroom to help support the marriage. " 

(Marriage and Family, pg. 46, Ch. 2, Roots: Roman, German, Christian)


Roman marriages took a step farther as regards to women. It was now the consent not just the consummation that would make a marriage legal between both parties. Wealthy Roman's needed a dowry for the bride. 

" Despite the subordinate position of the bride, Roman marriage custom was in advance of many of its contemporaries in requiring the consent of both principals as a condition of valid marriage,  a rule expressed in the legal formula Nuptias Consensus non concubines facit (consent, not intercourse, makes marriage). And in the third century B.C., a new form of marriage was introduced that wrought a decisive change in favor of women. Known as marriage sine Manu (without power transferred), the new form permitted the bride to retain  membership in her father's Familia despite moving into the home of her husband. By so doing she kept her inheritance rights as a daughter, assuring a considerable degree of independence from her husband. The husband in the marriage sine manu received only the bride's dowry,  and even that conditionally.  Under the Empire marriage  sine manu became overwhelmingly the more popular form." 

(Marriage and Family, pgs. 47-48,Ch. 2, Roots: Roman, German, Christian)

"In the marriage of wealthy Roman's, sustaining the "burden of matrimony " was perceived as requiring the assignment of an appropriate amount of income-producing property to the young couple. Under the Republic and early Empire, the bride's dowry remained the most important instrument for this intergenerational transfer of wealth, but under the mature Empire the pendulum swung.  The custom of a substantial marriage gift ( donatio) from the groom's family to the bride was introduced and by the third century A.D. came to exceed the dowry. By mid-fifth century the donatio, pledged and delivered before the marriage ceremony could take place, had grown so large as to constitute an obstacle to marriage for many young men, who as a result tended to delay marriage plans,  whereas young women ( and their families) sought to arrange as early a match as possible." 

(Marriage and Family, pg. 48, Ch. 2, Roots: Roman, German, Christian)


Interclass marriages


Interclass marriages were frowned upon, but persisted between the two classes who sought to be married.  Second cousin marriages were forbidden as well. Uncle, niece were forbidden until a senate member sought to marry his niece.  The law was then relaxed. Slave marriages were not acknowledged. 

" Most forms of intercession marriage were forbidden or hindered by legal obstacle or social disapprobation. Even when sanctioned,  such a matrimonial non Justus was long handicapped by assignment to the children of the status of the lower-ranking parent. Nevertheless,  intercession marriage persisted, as indicated by repeated legislation.  Slave marriage was not recognized  by law, which  did not prevent slaves from marrying and treating their marriages as serious. Even stronger than the bar to intercession marriage was the proscription against incest or marrying "in". Early Rome forbade marriage between second cousins, but over time the rule was relaxed, and even first cousins were allowed to marry. When the Emperor Claudis (reigned A.D. 41-54) chose for his fourth wife his niece Agrippina, the public was shocked, but the Senate  obligingly  revised the legal definition of incest, and ( according to Suetonius) at least two other uncle-niece marriages were recorded."

"Bethrothal and wedding,  private in the public in the sense of not involving officialdom, were public in the sense of overt. It was important for the community  at large to be informed. Besides the exchange of pledges (dos and donatio) the betrothal ceremony involved the exchange of promises between  groom-to-be and father of the bride-to-be: " Do you promise to give your daughter to me to be my wedded wife?"  " The gods bring luck! I betrothal her."  

The couple kissed and the young man placed an iron ring on the third finger of his fiancee's left hand. A Roman conviction that a vein ran from this finger straight to the heart was passed on by Macrobius (c. A.D.400) to the Middle Ages, whose bridal couples transmitted the tradition of ring and ring finger  to modern times. The wedding ceremony a few days later was also marked by long-lasting symbols: white bridal gown and veil, a best man ( auspex) who pronounced a legal formula, a shower from the wedding guests not of rice but of walnuts, a wedding feast, and carriage of the bride over the threshold of the bridal chamber. Once it had achieved its sine manu state,  Roman marriage changed little over a period of centuries.  Not so its dissolution, which underwent extensive modification under Augustus, not all in accordance with the government's intentions." 

(Marriage and Family, pgs. 50-51,  Ch. 2, Roots: Roman, German, Christian)


Roman Divorce


Not unlike marriage during Ancient Sumeria and Ancient Egypt,  marriage dissolution was not hard to break from. Divorce was legal if one committed adultery, drunk to much, was preparing  poison concoctions and , 

"counterfeit house keys. The upper elites divorced at will, the women having this privilege  as well because they still belonged to their father, not solely to the husband.  Polygamy  and concubinage only among the elites was legal."  

" Termination  of a Roman marriage had always been possible, and even quite easy for a Roman husband. This legal expression of the inferior status of women was a logical interference from the old marriage cum manu. The cum manu husband who wished to rid himself of his wife summoned a council of his family, to which the wife now belonged and cited his reasons,  among which the custom-honored were adultery, poison concoction, excessive drinking, and counterfeiting household keys. Yet though the husband's right to repudiate his wife was inherent in his legal power over her, the family's approval was evidently more than a formality, and the act of repudiation in the absence of convincing reasons  socially depreciated."  

"...increasing wealth brought to Rome by wars of conquest, did upper-class husband's gradually succeed in appropriating the right to divorce at will.  The prerogative may be seen as a substitute for the institutions of polygamy and concubinage, both practiced by the men of contemporary elites. In Rome concubinage was legal, but two principles of the law deprived it of much of its potential value in Roman eyes: a man could not keep both a wife and a concubine, and children of the latter were ineligible to inherit. Thus concubinage did not do what easy divorce could do. But Roman men did not monopolize the new freedom. At the very time they began practicing divorce at will,  Roman women obtained virtually equivalent license  via marriage sine manu. Since the sine manu wife still belonged to her father's family,  her male guardians could repossess her (abducted uxorem) or even without their intervention, she could exercise her own legal right ( Sul juris) and recover her own liberty. By the close of the Republic a wife could even secure a divorce under marriage cum manu if her husband deserted her, if he was convicted of certain crimes, or if he was made prisoner of war. The paramount consideration was the wife's  property. The husband repudiation his wife pronounced the formula " Tuas res Hbi agito"

 ("Take back what is yours"). The repudiation wife's formula ran "Tuas res tibi hibeto"(Keep what us yours"). ( Marriage and Family, pgs. 51-52, Ch. 2, Roots: Roman, German, Christian)

"Since it was desirable to facilitate remarriage of divorced couples,  a need was felt for a greater formalization if divorce.  Henceforth seven witnesses were required to attest to the dissolution of a marriage.  The procedure among the upper classes was for the divorcing partner to send a freedman bearing the message to the other spouse."  "Wives,  however were equally capable of breaking off the union " 

(Marriage and Family, pg. 55,  Ch. 2, Roots: Roman, German, Christian)


Reproductive Health


Abortion was illegal.  Contraception was also practiced, but not with great outcomes. A woman could still end up pregnant.  

" In early times the cult of ancestor worship conferred a mystic value on child birth, which did not however prevent the practice of abortion, socially frowned on and vainly prohibited by the  imperial government in the second century A.D. Previously it had been illegal only if performed without the permission of the paterfamilias.  Contraception was likewise  widely practiced,  though with only mediocre success. Preparations to insert in the vagina to block or kill seven had a long history antedating Rome, as did the rhythm method. Hippocrates, whose oath  contains an explicit condemnation of abortion but not of contraception, erroneously specified that the most fertile period was that immediately following menstruation. " 

(Marriage and Family, pgs. 57-58, Ch. 2, Roots: Roman, German, Christian)

"In A.D. 318 Constantine,  acting  under the humanitarian influence of the Christian Church,  and also out of a concern for population decline,  made infanticide a capital crime. Infanticide and the sale of children notwithstanding." 

(Marriage and Family, pg. 59,  Ch. 2, Roots: Roman, German, Christian)


Adultery at a time was viewed solely a, 

"crime only for women. Under the Republic a husband had the right to kill an adultress wife caught in the act, together with her lover, if he was a freedman or slave Augustus's legislation substituted a more humane and more worldly penalty in the shape of a fine based on the size of the woman's dowry. The law also touched on a husband's conduct. A little later the the wronged wife was given the valuable right of recovering her dowry, but not until Constantine three centuries later did Roman adultery become an equal crime for either sex.

Augustus in fact was mainly concerned with husbandly complacency and the thrust of his law was to compel  divorce proceedings.  In a sensational  invasion of traditional privacy, a corps of paid farmers was authorized to provide testimony against erring wives of forgiving husband's. Neither custom, lae, nor Informers prevented wives from continuing to stray I to other arms,  as is indicated by reenactments of legislation by later emperors,  and by a wealth of satiric literature." 

(Marriage and Family, pgs. 60-61,  Ch. 2, Roots: Roman, German, Christian)


Same sex relationships, as I have shown, have been around since Ancient Sumeria. The practice of it in Rome was among the male elite.  There is no mention of same sex relations among women as it was mentioned in Ancient Egypt.

"The practice of homosexuality  ,especially male, was evidently widespread, at least among the Roman upper classes. Slave boys like slave girls were made to serve their masters' pleasure (and on occasion also that of their mistresses, who by law of Constantine  were threatened with the death penalty for such fornication)." 

(Marriage and Family, pg. 62,  Ch. 2, Roots: Roman, German, Christian)


Property


Parafamilias were a big part of Roman households. Property was in the control of the paterfamilia only until things were changed, and removed this and gave the individual the control over their property. 

"Throughout the early Republic the parafamilias exercised his unchallenged authority, but as time passed the steady growing power of the Roman state began to impinge on it. A significant  change in family  relationships came about through the wars that formed so conspicuous a feature if the national history. A soldier's booty had always been treated as a legal property  of his paterfamilias  but as conquest extended the booty grew u til the government intervened. Henceforth the veteran solider retained his plunder, which he might use to equip his own estate. For the first time, individual property rights were recognized as opposed to family or clan property rights. The wars also brought a degree of defacto liberation to Roman women by freeing them from the surveillance of absent male relatives and awarding them masculine responsibilities such as running the farm or estate. By the time Augustus, Greek observers were struck by the freedom of upper-class Roman women; where the ladies of Athens remain secluded at home while their husband's socialized, those of Rome  accompanied the men to dinner parties, creating a small but noteworthy revolution,  the world's first elegant mixed society." 

(Marriage and Family, pgs. 44-45, Ch. 2, Roots: Roman, German, Christian)


Barbarian migrants lived among the Roman's. The society that the Germans built among themselves was one of, " the family...the basic unit, economic,  social,  legal, and religious.  Families were aggregated into kin groups for ehich the German term was SIppe, and whose structure, character,  and exact functions have been the subject of extensive controversy and conjecture among modern historians. 

" Before the Migrations, " Tacitus, who had contact with them as an official in the provinces a century and a half later, reported private (individual family) ownership of cropland, along with common ( evidently Sippe) ownership of pasture. By the time of the Migrations,  the German family typically raised wheat or barley, and sometimes flax, peas and beans, and herded a few sheep or cattle. In their new homes I side the Roman Empire they adapted quickly to the more advanced Roman techniques.  The Lombard law code, written down in the sixth century but largely reflecting earlier conditions, mentions vines, fences, mills, animal pastures,  fruit and olive trees, domesticated fowl, beekeeping, pigs, and swine herds. In addition to forming,  Germans engaged in both manufacture and trade. Ironwork, including fabrication of weapons was a male vocation, pottery making, both by wheel and by hand, largely female. Among products long imported into the Roman Empire from the Germanic lands outside it were slaves, furs,  skins, and amber."

 (Marriage and Family, pgs. 67-69, Ch. 2, Roots: Roman, German, Christian)


Barbarian (German) Property

"The barbarian equivalent of the Roman father's patria potestas, sometimes called the mundium, awarded very similar authority  with only one important subtraction: barbarian sons attaining majority ( the age varying among different peoples) acquired legal independence.  Family solidarity was assumed as the basis of law and order, with crime treated as tort and the family and clan given the responsibility for translating individual grievance into resolution by collective action. The injured individual solicited his family's support and the opposing party's  family undertook to defend him or to make suitable amends. To facilitate the process, the Germans had developed an ingenious legal instrument,  the wergeld, or "man-worth," a value attached to every individual  on the basis of sex, age, and status. Pay-off compensation  for a crime against the person was assessed as a fraction or multiple of the victim's wergeld. Thus for a crime of rape the Burgunduan law code exacted nine times the wergeld of the victim. Taciturn reported compensation in kind- cattle, sheep, or chattels- but as the barbarians settled down in the money economy of the Roman empire, gold solidi and silver denari were substituted." 

(Marriage and Family, pgs. 69-70, Ch. 2, Roots: Roman, German, Christian)


Marriage


Barbarian marriages were male dominated and Family oriented. Marriages were arranged by male relatives of the bride. The marriage consisted of a promise, of marriage,  a feast, the brideprice. According to Tacitus, 

"The bride...completed the marry a gift of arms to the groom, but it us clear that the main direction of endowment was from the groom. The significant difference between barbarian and Roman practice was the source of the endowment: the barbarian paid for his wife, the Roman contributed for his daughter."

 (Marriage and Family, pg.71, Ch. 2, Roots: Roman, German, Christian)

Divorce

Divorce among the women was double sided, even though the women were seen with some sense of value.

“The double standard was even more manifest in German than in Roman attitudes…Despite their subordinate status, barbarian women were valued, and not only for sex and procreation. They possessed particular skills, passed from mother to daughter: besides making pottery, they spun and wove with a skill attested by garments recovered by archaeologists from peat bogs…Legal texts reveal another value: descent was commonly reckoned in the female line for the good reason that female descent could be more reliably determined than made.” 

(Family and Marriage, pgs.72-73, Ch.2, Roots: Roman, German, Christian)

The Effects of Christianity

The Church would soon find its position of authority among the people. Since the beginning of its presence it captured the attention of the barbarians. It was the Romans who were not so easily swayed.

“In the fourth century, as the Great Migrations swelled toward their climax and the vast military-administrative apparatus of the Roman Empire strained and cracked under the pressure, a new force entered into the turbulent European scene. After struggling through three centuries of persecution and indifference, the Christian religion matured into a position of status and authority, routing the gods from the Pantheon and the Lares from the hearths. Among the Romans it won its converts more rapidly in the cities than in the countryside, where pockets of paganism and remnants of pagan practices survived for centuries, or even permanently, without preventing the triumph of the cult throughout Europe. It gained first official toleration (A.D. 313) and then (A.D. 380), while simultaneously and even more dramatically it captured virtually the entire mass of barbarian invaders as they crossed the frontiers.” 

(Family and Marriage, pg.78, Ch.2, Roots: Roman, German, Christian)

The Christian community was now forming, aligning itself with the Empire that was crumbling. The Church now had to find a way to silence the teachings of Gnosticism, Manicheism, and Arianism. Doctrine was now designed, 

“to answer esoteric theological questions and to provide rules of conduct for everyday Christian life.” 

(Family and Marriage, pg.79, Ch.2, Roots: Roman, German, Christian)

Augustine and other Fathers of the Church argued what now would constitute marriage. Everyone had their own opinions. The New and Old Testament of the Bible was considered by some. St. Paul’s view was beyond mutual consent even though regardless of which Testament of the Bible was viewed, the Bible itself did not go against marriage.

“Augustine concluded that marriage for Christians must be regarded as a sacrament (sacramentum), a permanent union. It contained three discernable goods: fides, faith; proles, offspring; and sacramentum, a scared bonding not merely of two persons, but of whole lines of descent, a priniciple, by no means foreign to pagan thought, either Roman or German. As with Romans and Germans, Christian doctrine held that the two relationships of blood and marriage must be kept distinct through the incest taboo and the rules of exogamy. In this direction the Church reinforced the law of Moses (Leviticus 18:6-21, 20: 11-12). With marriage accorded the status of sacrament, a nuptial blessing by the priest seemed no more than logical. Yet the priest’s participation long remained more incidental than central, and not essential for a valid union.” 

(Family and Marriage, pg. 63-64, Ch.2, Roots: Roman, German, Christian)

Divorce became forbidden and polygamy and concubinage was frowned upon.

“Constintine and succeding Christian empires had acted to restrict the old freedom of divorce, but they had made no attempts to abolish it.” “Augustine rejected all the grounds for divorce allowed by existing secular law, such as prolonged absence or captivity. He was “the workman who put the final hand to the theory of indissolubilty”, according to canon-law authority Adhemar Esmein.” 

(Family and Marriage, pg.85, Ch.2, Roots: Roman, German, Christian)

Conclusion

Marriage in Romanian and Germanian culture was the beginning of the Church coming in and laying new rules on what marriage was in now defined to be. Unlike what the culture was in Sumeria and Egypt were marriage was ruled by consent and consummation the Church now decreed that marriage had to be overseen by a priest to be considered as binding. That certain rituals needed to be performed besides having the permission of the family, having a feast and the consummating the relationship. It was now becoming ruled by the Church and if you chose to become Christian you had to follow the laws of what marriage now looked liked. Divorce was fought over but came to the point of, if your in, your in, there is no easy way out.

We will now travel overseas to explore how the two tribes, the Choctaw and Cherokee dealt with marriage, and how their values would soon be replaced with the Church intervening.

The Church took hold in Rome with the Romans and Germans. It became the ultimate authority in religion among the people. The missionaries were preparing to set sail across the ocean to a new land. The Chahta and Cherokee had no idea what was to come.

Series 4: Marriage of Choctaw and Cherokee Nations (Coming Soon)