474 HARVARD LAW REVIEW SIM duci a marito non posse: deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium matrimonii J' According to this passage a man who was away from home might marry a woman by letter or messenger, but marriage could not be contracted in this manner by a woman who was absent from the man's place of residence. The reason for this difference between the man and the woman resulted from the requirement of the Roman law that the wife be led to the husband's home {deductio in damnum mariti). Marriage was considered in the late Roman law as based solely upon the agreement of the parties to take each other from that moment as husband and wife.^ This consent might be expressed, with the reservation above made, by letter or by agent {per nuntium vel epistulam) as in all ordinary consensual contracts. The Canon Law accepted as its fundamental doctrine the princi- ple that consensus facit nuptias. Gratian ^ insisted that there was no marriage unless the agreement of the parties to take each other as husband and wife was followed by cohabitation, but this require- ment did not prevail. Peter Lombard, professor at the University of Paris, and later ordained bishop, suggested a distinction in this regard between sponsalia de praesenti and sponsalia per verba de future, requiring cohabitation only for the validity of the latter. Through the influence of Alexander III the church accepted this distinction toward the end of the twelfth and at the beginning of the thirteenth centuries.^ Parties declaring in words of the present tense that they take each other from that moment as husband and wife were regarded as legally married.^ The only dijfference between a marriage that was consummated through cohabitation and one that was not so consummated was that the latter might be dis- solved by entering religion and was subject to the papal power of dispensation.^ From the earliest times the church had insisted that the parties should exchange matrimonial consents in face of the church and should get their union blessed by the church, but a failure to observe
- Nuptias eotm non coNCtrBiTXJS, sed consensus facit, D. 35, i, 15; D. 50, 17, 30.
- I EsMEiN, Le Mariage en Droit Canonique, 109; i Howabd, History of
, Matrimonial Institutions, 336.
- I Esmein, 5M/>ra, 127.
"^ I Howard, supra, 337; 3 Boehmer, Jus Ecclesiasttcum Protestantum, 3 ed., Bk. 4, Tit. I, No. 13. 8 2 Pollock and Maitland, History of English Law, 368; i Esmein, supra, 130.
