Paul Wolff
4/2/2012 10:00:00 PM
In message <jld5jp$u7b$4@news.albasani.net>, Adam H. Kerman
<ahk@chinet.com> writes
>Jerry Friedman <jerry_friedman@yahoo.com> wrote:
>
>>That's one thing everybody seems to agree on, and another is that the
>>term "common-law marriage" originated in the U.S.
>
>One of the bits I read said that the concept, man and wife pledging themselves
>to each other and living as husband and wife, originated with Rome, and
>the custom carried forward into England. No idea about Wales, and no idea
>why the case I mentioned earlier, in Scotland, that led to the 1753 law,
>would have followed Roman tradition as Rome never conquered Scotland.
I'm not sure that there ever was a Scotland in Roman times. The lowlands
of today's Scotland were Roman in the days of the Antonine wall.
But that's as may be. Relevant is that Scots law does have a Roman
element to it. I don't remember why, but it has. It may be because the
Scots looked to France in particular, but also to other continental
powers, for protection against the English, and fell under their baleful
influence.
>
>Why would it have been called common law marriage in England? As the
>common law was the law that which applied to everyone, why would any legal
>concept be called common law anything?
Since you ask: I'll guess that marriage existed before the Church; that
at some time the Church largely but not entirely took over the
performance - the solemnization - of marriage; and that the justices of
England were unwilling to cede exclusivity to the Church. But it may
also be that Parliament did attempt to hand matrimony over to canon law.
Ignore that if you like. It's uninformed speculation.
--
Paul