The concept of marriage in Roman law and
its perception by Russian legislation
of the codification period in the first third
of the XIX century. Raising the question
of the introduction of the bride into the husband's
house
Associate Professor
of
Moscow State
University “Lomonosov”
(Summary)
In the article "The concept of marriage in Roman law and its
perception by Russian legislation of the codification period in the first third
of the XIX century. Raising the question of the introduction of the bride into
the husband's house" the concept of marriage, its initial legal
definition and subsequent perception (reception) of Russian law are
investigated.
Before coming to the classical definition of marriage (D. 23.2.1.
Modestinus), Roman law went through a centuries-old path of development. The
ancient methods of marriage, known even in the era of the laws of the XII
tables (confarreatio, coemptio, usus), laid the foundation
for the theoretical understanding of marital relations.
The classical era preserved the oldest methods of marriage and at the
same time developed them. So, the sources speak about the order of marriage in
an informal way, that is, without performing the rites of confarreation and
coemption. It becomes possible to conclude a marriage by letter or through a
messenger. At the same time, it was important not only the consent of the groom
to the marriage (and, accordingly, the bride), but also the introduction of the
bride into the husband's house as a wife, after which the rite of "taking
water and fire" was performed. "Introduction as a wife to the
husband's house" meant introduction to the family circle, its values,
including space, and, most importantly, introduction to the family cult through
"water and fire"(aqua et igni).
The legal significance of the main formal attributes of a wedding
celebration during a cum manu marriage in the understanding of ancient authors
and Roman jurisprudence is always associated with the rites of confarreatio
et coemptio. Passing under the authority of a husband by means of
long-standing residence (usus) fell into disuse in the Age of Gaius.
From the stories of Gaius (1.136) and Tacitus (Tac., Ann. 4.16)
it is possible to see a direct difference between these two forms of marriage:
from the era of Caesar (23-28 AD, the era of the principate of Tiberius)
according to the Senate decree, a woman in a confarretical marriage, she became
subject to her husband only in what was related to the sacred rites, and in
other respects her rights were the same as other women. That is, in a
confarretical marriage, having left the power of her father, she fell under the
power of her husband in a limited sense. Roman authors confidently say that in
the classical era these solemn procedures fell out of wide use.
At the same time, the difference in the types of marriage known from
antiquity in the sense of subordination, that is, the division of marriages
into marriages cum manu et sine manu, means that a woman in a sine
manu marriage was not under the authority of her husband (or his father),
while remaining under the authority of her father.
Since the end of the 19th century, the opinions of scientists regarding
the imperious subordination of the wife have been different. A number of
scientists believed that «marriage and manus are inseparable, the ways
of acquiring a manus were ways of marriage» (P.F. Girard), therefore, confarreatio,
coemptio et usus, - these were rather ways of marriage, - in the
classics they disappeared (or almost disappeared), that is, marital relations
were not accompanied by the emergence of power over the wife: for the
conclusion of a marriage sine manu, «a simple agreement between the
spouses and the removal of the bride to the groom’s house» was enough (P.
Bonfante). Therefore, for marriage, the paramount role passed to a solemn
holiday (wedding), expressing consent. It was only in ancient times that
marriage was necessarily accompanied by formal ceremonies (besides the
wedding).
Marriage has always been the subject of attention of Roman lawyers.
Since marriage was not always the same procedure, Roman lawyers paid attention
to those attributes of marriage that influenced the position of a person, his
duties and the consequences associated with this position.
Based on data known from ancient sources, as well as research by
scientists of the XIX – XXI centuries, the article describes the marriage
ceremony, highlighting such elements of the marriage procedure (symbolic
actions, gestures, a solemn feast, etc., having the character of a class
tradition, sacred or otherwise), which have legal consequences, that is when,
as a result of one or another action, the relationship acquires the properties
of a legal fact – the actual marital relationship.
Weddings were not distinguished by strict monotony, which is natural,
especially since many stories about the details of the ceremony have reached us
from literary sources, often with the participation of mythical characters.
Only some wedding customs can be considered relatively stable and relatively
often repeated, for example, the beginning of the wedding at the bride's house
and the subsequent procession to the groom's house (deductio in domum mariti).
However, this tradition was not so obligatory that not a single wedding
(marriage) would have taken place without it. Not always the wedding ceremony
(and marriage in general) was observed in this way.
In the era of the Roman classics, law consistently pursued the idea that
it is not a wedding or any formal procedure that creates a marital
relationship, but the circumstances arising in the relationship between a man
and a woman (D. 20.1.4.1; D. 23.2.4; D. 35.1.15.35; Nov. 22.3, Nov. 117.3). During
the classic period, the husband did not have power over his wife (because
formal procedures fell out of use or became optional), she did not join her
husband's family, remaining an agnate of her family.
Of the above-described set of ceremonial elements that have accompanied
the marriage for centuries, Roman jurisprudence singled out only the
"introduction of the bride to the groom's house" and the rite of
"fire and water" [the procession of the bride from her father's house
to the groom's house during the wedding ceremony (deductio in domum mariti)
does not coincide with the "introduction ..."]. These two elements
were committed sequentially (in cases where they are mentioned simultaneously).
The meaning of these elements should rather be considered unequal.
Sources confidently say that the introduction of the bride into the
groom’s house as a wife was the main and mandatory for the onset of legal
consequences: “If a legate is left to some (girl) under such a condition: “if she
marries”, the condition seems to be fulfilled immediately, as she brought (into
the house) as a wife, even though she had not yet entered her husband's
bedroom. After all, marriage does not create intercourse, but consent (about
its conclusion)” (D. 23.1.9; D. 23.2.4; D. 24.1.66.1; D. 35.1.10; D. 35.1.15).
In a marriage entered into without festive ceremonies (weddings) or
without formal procedures (confarreatio, coemptio), “introduction
as a wife into the husband’s house” was considered a fact of marriage. That is,
not a wedding was a legally significant expression of consent to marriage and
its conclusion, but the introduction of a husband into the house with any form
of consent (for example, a letter of consent to the introduction, through a
messenger). Solemn ceremonies, that is, cases of marriage, when one of the
ancient forms - confarreation or co-option, was performed before the
introduction, could be used along with marriage without these procedures.
From this moment on, the marriage is considered to be concluded and
established the relationship ("civilized") of the wife with the new
family (D. 38.10.4.2).
It is necessary to introduce the wife into the husband's house, as if
into a marital home; at the same time, the presence of a woman is mandatory,
whereas a man may be absent (D. 23.1.9; D. 23.2.5).
The sources do not allow us to conclude that there is a terminologically
stable phrase "introduction to the house ...". The expressions
"brought into the house", "brought into his house",
"brought into the house", "passed to him", "brought
into the husband's house", etc. are used [in domum deducta est (D.
23.1.9), ad eum transiret (D. 24.1.66.1), in domum mariti deducta
(D. 35.1.10)].
In this case, “introduction as a wife into the husband’s house” is understood
in the sense of introducing into the circle of the family, its values,
including space, but the “combination” did not end there, and there was a
subsequent introduction to the new family through “fire and water” (and with a
sacrifice to the Lares of the new house). The second element of the marriage
ceremony is mentioned by Roman lawyers, this ceremony was performed immediately
after the "introduction".
"Acceptance through water and fire" meant that a woman enters
a new family and is a member of a new family (genus); in other words,
the bride, having used (in her husband's house) water and fire - "two
essential elements", connects her nature with her husband (see above: D.
24.1.66.1). This procedure was undoubtedly important, perhaps it meant a connection
on the basis of kinship and property, equating to family members, and also
assumed the happy achievement of one of the goals of marriage - childbirth .
However, a more detailed consideration of the meaning of this rite is a
question that requires separate consideration.
"The introduction of a wife into her husband's house" seems to
be the most important distinguishing sign of the fact of marriage, since
consent in itself is not necessarily associated with marriage and initiation
into a family cult. According to the ideas of Roman legal theorists, the rite
of "accepting water and fire" meant that a woman enters a new family
and is a member of a family cult; in other words, the bride, having used (in
her husband's house) water and fire - "two essential elements",
connects her nature with her husband.
The introduction to the house had a clear sacred character. In this
sense, marriage should be understood as an event falling under the "divine
right", because in Rome, the supervision of ancestral rites (and wills)
and in general any private cults was carried out by pontiffs, even if it was
"neither strict nor comprehensive".
So, the main sign of the emergence of marital relations without
performing the rites of confarreation and coemption was the introduction of the
wife into the husband's house; the husband's power could come due to certain
circumstances, or not come or not take place as a result of liberation. The
content of the marriage was originally living in the husband's house and
participating in his family cult, but it was supplemented by the birth of
children.
Modestin, in formulating his definition, took into account the main
features of marital relations that had developed by that time. Roman law
comprehensively and deeply disclosed the legally significant relationship
between a man and a woman, allowing to establish the fact of marriage and
distinguish it from a state close to marital relations, in other words,
allowing to draw a line between marriage proper and cohabitation, cohabitation.
The main achievement in this sense was the definition of the concept of
marriage, formulated by Herennius Modestinus.
The definition of the concept of marriage (D. 23.2.1), given in the era
of the Roman classics and included in the Digests in the VI century, later
remained valid and unchanged in Eastern Rome at least until the XI century, but
in the norms of church legislation.
In Russia, since the era of Prince Vladimir (circa 950 – 1015), marital
relations have also been regulated by the norms of church law set forth in the
Nomocanon (since the XIII century, the "Pilot Book" - Corpus iuris
canonici). The bulk of the relationships related to marriage were thus
attributed to the competence of the Church. This rule was adopted by subsequent
legislators.
The article shows that Russian (and European) researchers-theologians of
the XIX century A.S. Pavlov and after him I.M. Gromoglasov are few in Russian
science who commented on the concept of marriage in full.
The concept of marriage, identically prescribed in all editions of the
Nomocanon in Russian, served as one of the theoretical sources for the
formation of the institution of marriage in civil law. The most important stage
of this development was the publication of the Code of Civil and Boundary Laws
of 1832. It was the first codified edition of civil laws.
The basic principles of marriage relations and the signs of the concept
of marriage, laid down in the era of the creation of the Nomocanon of the XIV
chapters, were perceived and preserved in the Russian marriage legislation of
the early XIX century with some deviations and changes.
Changes in the civil marriage legislation were carried out throughout
the XIX century, but by the beginning of the XX century, the main provisions
remained unchanged. The effect of the Code of Laws of the Russian Empire as a
national normative act remained until 1918.
Russian (and European – Zhishman, 1864) researchers and theologians of
the 19th century A.S. Pavlov and after him I.M. Gromoglasov - few in Russian
science who commented on the concept of marriage in full. Highlighting, first
of all, the nature of the marital relationship, the authors emphasize that,
following Modestinus, the first sign of marriage “man and woman combination” (coniunctio
maris et feminae) should be understood as unity based on sexual difference.
This sign is based on one of the goals of marriage - procreation, but is not
exhaustive, it is only one of the aspects of Christian marriage. Here there is
a complete coincidence with the Christian understanding of marriage (Genesis
I.27-28; II.28), since the position of a woman as a “corresponding helper” to
her husband follows from the gender difference, at the same time the
psychological nature of spiritual life is emphasized: not bodily copulation is
the essence of marriage, but consent (Nuptias non concubitus sed consensus
facit, D. 35.1.15). The views of Roman classical jurists were not crudely
naturalistic
Marriage cannot end just because of the absence of a bodily connection,
but continues as long as there is consent. Consent in this case should be
understood as a desire to be together, to form a community. Consent in the
legal sense is connected with the decision of the issue of marriage (with a
given person), or the issue of dowry. A marriage arrangement, like marriage
itself, is possible only with the consent of "those who marry and in whose
power they are" (D. 23.2.2). The promise, appointment or transfer of a
dowry also constituted civil transactions of a property nature. However, these
cases are not directly related to unity as a sign of marriage, since conspiracy
is committed before marriage (like any question of consent), and the dowry
regime is part of property relations, but here we are talking about personal
relationships.
The subordination of a wife to her husband, according to the Christian
worldview, can only be voluntary and free, and is an expression of
self-sacrificing love, and not slavish obedience or fear.
Another consequence of the main feature of marriage is its monogamy.
Both in Roman law and in Christian sources this is repeatedly repeated.
However, the consistent continuation of the Christian point of view leads to
monogamy, that is, to the denial of remarriages, the ideal marriage is
life-indissoluble. In ancient Rome, the freedom of marriage led to the
possibility of both easily entering into a marriage and dissolving it, and more
than once, although, as we have already seen, this was a historically long and
difficult process.
Consortium omnis vitae I.M. Gromoglasov
understands it as "the unification of the fate (lot) of a husband and
wife, extending over their entire life together", - "full communion
of life", including the moral side.
Divini et humani iuris communication
- the construction of the phrase by Modestin speaks of only two varieties of
law jus divinum et jus humanum, but not at all about two separate areas
of marital communication. This sign is understood by I.M. Gromoglasov as
complicity or communication of spouses in the field of human, that is, civil
rights and religious duties. However, he clarifies that the wife is understood
as an accomplice (or girlfriend) of her husband in everything that falls within
the scope of religious duties or civil legal relations, but in a limited sense
- only in what falls within the scope of family relations, that is, in relation
to things (rights ) that "belong to the house", the family, and
sacred rites that are performed in the family circle.
The concept of marriage, identically spelled out in all editions of the Nomocanon
in Russian, served as one of the theoretical sources for the formation of the
institution of marriage in civil law. The most important stage in this
development was the publication of the Code of Civil and Boundary Laws of 1832.
The code of laws regarding family law united the norms established by
separate resolutions in the XVIII century, but the earliest is the rule adopted
from the Council Code of 1649, which remained in force until the reform of
1861. The norms of the Code of 1832 show that marriage and family law to a
noticeable extent passed into the jurisdiction of the secular authorities, and
there was a partial deviation from the principles established in the Pilot Book
(Nomocanon).
The monogamous nature of marriage was not explicitly spelled out
anywhere in the Code, but was implied primarily insofar as marriage was
attributed to the powers of the Church. However, «Each tribe and people,
including pagans, is allowed to marry according to the rules of their law…»
(Article 70 of the Code of 1832). «Whoever wants to get married must notify the
priest of his parish» - the only direct indication of the initiator of the
marriage as a male person (Article 18 of the Code). Also, in some articles, the
subjects of marital relations were spelled out - wives and husbands, bride and
groom. In the section “On the rights and obligations arising from matrimony” it
was stated that «a wife is obliged to obey her husband as the head of the
family» (Code ..., Art. 78, 79).
The bodily connection of husband and wife as a sign of marriage is not a
self-sufficient circumstance even among the reasons for termination specified
in the Code (before 1850), but the obligation is imposed to live together,
while the wife follows her husband. Marriage, according to the Code, lasts for
life, however, the possibility of its dissolution is provided, which is
permissible in only three cases: exile, unknown absence (over five years) and
divorce. Divorce is made according to the rules of the Church, followed by the
approval of the Synod (Code ..., Art. 29 - 37).
So, it is obvious that the basic principles of marriage relations and
the signs of the concept of marriage, laid down in the era of the creation of
the Nomocanon of the XIV chapters and dating back to the era of Modestin, were
perceived and preserved in the Russian marriage legislation of the early XIX
century with some deviations and changes.
Changes in the civil marriage legislation were carried out throughout
the XIX century, but by the beginning of the XX century, the main provisions
remained unchanged. The effect of the Code of Laws of the Russian Empire as a
national normative act remained until 1918.