rriage of richer
people, therefore, had a guarantee which had no place between those who
had no occasion for such documents. Life with a woman of good reputation
and honorable life created a presumption of marriage. The church
enforced this as a conscience marriage, which it was the man's duty to
observe and keep.

+421. Marriage in Roman law.+ In the _corpus juris civilis_ there are
two passages which deserve especial attention. In Dig., I, xxiii, 2, it
is said: "Nuptials are a conjunction of a male and a female and a
correlation (_consortium_) of their entire lives; a mutual interchange
(_communicatio_) of rights under both human and divine law." In the
_Institutes_ (sec. I, i, 9) it is said: "Nuptials, or matrimony, is a
conjunction of a man and a woman which constitutes a single course of
life (_individuam vitae consuetudinem_)." These are formulas for very
high conceptions of marriage. They would enter easily into the notion of
pair marriage at its best. The former formula never was, amongst the
Romans, anything but an enthusiastic outburst. Roman man and wife had no
common property; they could make no gifts to each other lest they should
despoil each other; their union, in the time of the empire, was
dissoluble almost at pleasure; the father and mother had not the same
relation to their children; the woman, if detected in adultery, was
severely punished; the man, in the same case, was not punished at all.
The "correlation of their entire lives" was, therefore, very imperfect.
The sense of _individuam vitae consuetudinem_ is very uncertain. It
could not have meant merely the exclusive conjugal relation of each to
the other, although such was the sense given to the words in the church.
The law contained no specification of the mutual rights and duties of
the spouses. These were set by the mores and varied very greatly in
Roman history. _Affectus maritalis_ (the disposition of a husband to a
wife) and _honore pleno deligere_ (to distinguish with complete honor)
are alone emphasized as features of marriage which distinguished it from
concubinage.[1335] Roman jurists took marriage as a fact, for at Rome
from the earliest times, it had been a family matter, developed in the
folkways. The civil law defined the rights which the state regarded as
its business in that connection, and which it would, therefore,
enforce.[1336]

+422. Roman "free marriage."+ The passages quoted in the last paragraph
refer to "free marriage"