conveniebat, quae anno continuo nupta perseverabat. Quae § 79. enim veluti annua possessione usucapiebatur, in familiam viri transibat, filiaeque locum optinebat. Itaque lege XII tabularum cautum est, ut si qua nollet eo modo in manum mariti convenire, ea quotannis trinoctio abesset, atque eo modo usum cujusque anni interrumperet. Sed hoc totum jus partim legibus sublatum est, partim ipsa desuetudine oblitteratum est. § 112: Farreo in manum conveniunt per quoddam genus sacrificii, quod Jovi farreo fit, in quo farreus panis adhibetur; unde etiam confarreatio dicitur. Conplura praeterea, hujus juris ordinandi gratia, cum certis et sollemnibus verbis, praesentibus decem testibus, aguntur et fiunt. Quod jus etiam nostris temporibus in usu est. Coëmptione vero in manum conveniunt per mancipationem, id est per quandam imaginariam venditionem; nam adhibitis non minus quam quinque testibus civibus Romanis puberibus, item libripende, emit is mulierem, cujus in manum convenit. PAULI Sent. II tit. 20: Eo tempore, quo quis uxorem habet, concubinam habere non potest. Concubina igitur ab uxore solo dilectu separatur. Eod. tit. 19 § 6: Inter servos et liberos matrimonium contrahi non potest, contubernium potest. L. 30 D. de R. I. (50, 17) (ULPIAN.): Nuptias non concubitus, sed consensus facit. § 80. Marital Power. Manus mariti is the marital power of the old type. It is in its § 80. nature analogous to patria potestas. An uxor in manu (materfamilias) stands legally, by virtue of the manus, 'filiaefamilias loco.' The relations between her and her husband-both as regards her person and her property-are governed by the same rules of law as apply to the case of a child. As to his power over her person, the husband has full authority to chastise his wife, and, in some cases, even to kill her, in the same way as he might chastise or kill his child. He may even sell her, like a child, into bondage. In cases of a very grave character he is required to consult a family council § 80. (judicium propinquorum), but this restriction on his power is based solely on custom and tradition. And even then the power to which the wife is subject in respect of life and death is the private power of her husband and his family. It was only in the course of the subsequent development of the law-the tendency of which was, generally speaking, to improve the position of filiifamilias-that the effect of manus, like the effect of patria potestas, was stripped of much of its harshness. On the other hand, as regards the power of the husband over his wife's property, the rule is the same as in the case of a child in power, viz. whatever she acquires she acquires for her husband, and any property which she possesses on her marriage passes in its entirety (per universitatem) to her husband by the necessary operation of the law (inf. p. 369). And inasmuch as, by marrying with manus, the wife becomes legally the child of another, i. e. passes under a different patria potestas, the consequence is that she changes her agnatic family (because she changes her patria potestas), and thereby, at the same time, undergoes capitis deminutio minima (p. 124). The relations between a wife in manu and her children are governed by the same rules as apply between brothers and sisters. In an agnatic family, the source and foundation of which is patria potestas (sup. p. 356), the wife can never, in point of law, be the mistress of the house, nor can she even share the headship of the family with her husband. In the house of her own husband she is, legally speaking (i. e. as far as the agnatic relationship is concerned), nothing more than the sister of her children, since she is subject to the same patria potestas as they are. The mother can never be the head of an agnatic family, such a position being reserved for the father alone. In the eye of the law the wife is, like the children, merely one of the subjects of the agnatic household. It is but a crude kind of family law, this family law where marriage is always accompanied by manus. It is incapable of drawing any distinction. between the different cases of family power. It knows of no special law of marriage corresponding to the relationship of husband and wife, the law of husband and wife being included in the law of parent and child. The entire law of husband and wife acquires a very different § 80. aspect when viewed in the light of 'free' marriages, or marriages without manus. The principle of subordination disappears and the principle of equality takes its place: man and wife are regarded as partners. Marriage law becomes something more than a particular application of the law of parent and child. The two are now clearly differentiated. The position of the wife as companion of her husband and joint-ruler of the household, which voluntary custom assigned to her even under the old marriage law', gradually finds legal expression. The law comes to recognize the distinction between the relationship of husband and wife, on the one hand, and father and child on the other. The law of husband and wife becomes a special branch of family law. The wife ceases to be subject to the paternal power of her husband. She ceases to change her agnatic family, and consequently ceases to suffer capitis deminutio. If she was sui juris prior to her marriage (because, say, her father was dead), she continues to be sui juris after her marriage. If she was in her father's power prior to her marriage, she remains in the same patria potestas after her marriage (except that, wherever such patria potestas conflicts with the power of the husband, its effect is annulled). An uxor in manu, on the other hand, is always alieni juris, because she is always in the patria potestas of her husband or of the person in whose patria potestas her husband is (p. 121). A free marriage does not however, by any means, imply that the husband has no marital power. It would be more correct to say that a free marriage is the only marriage where there is a genuine marital power, i. e. a power which, instead of being a mere copy of patria potestas, is a special power peculiar to a husband as such. In a free marriage the husband has the marital power of the jus gentium, i. e. of Roman law in its advanced state of development; in the jus civile on the other hand (i. e. in Roman law in its un 1 Cp. Jhering, Geist. d. röm. Rechts, vol. ii. part I (4th ed.), p. 203 ff. The author justly points out the fallacy of supposing that the actual (i.e. the social) position of wives in ancient Rome neces- § 80. developed condition) the marital power (viz. manus) is nothing more than a form of patria potestas. The marital power in a free marriage consists in the husband's right to the companionship of his wife. If a third party deprives him of his wife's society-even though it be the wife's own father, acting by virtue of his patria potestas-the husband has the interdictum de uxore exhibenda ac ducenda. Coupled with this right to the companionship of his wife, the husband has also the right to decide all questions incident to the married life. It is he, for example, who determines where they shall reside (the wife shares her husband's domicile by force of law); it is he who decides on the education (including the religious education) of the children and on the nature and extent of the household expenditure. Thus even free marriages involve the principle of the wife's subordination to the will of her husband, but it is a subordination differing in kind from the subordination of children, and modified by a fusion of the principles of subordination and partnership. The marriage with manus realizes the conception of the agnatic family. The father alone stands legally at the head of the household. The free marriage, on the other hand, realizes the conception of the cognatic family of the jus gentium. Both father and mother stand legally, as well as socially, at the head of the household. In spite of the fact that an uxor who married without conventio in manum was denied the honourable title of materfamilias-in clear token of the original view according to which marriages without manus were not perfect marriages at all-it was nevertheless precisely through the position she occupied in the Roman household that the rights of the mother as such obtained the express recognition of the law. She alone is legally-though indeed only according to the jus gentium— not the sister, but the mother of her children. A mother as such is 2 This interdict, it is true, belongs to the post-classical law; it is referred to by Hermogenianus (i. e. in the middle of the 4th century). See the passage quoted at the end of this section. The only interdict on this subject found in the praetorian edict was the 'interdictum de liberis exhibendis, item ducendis ' (§ 88). We are told however that Antoninus Pius (in the middle of the 2nd century), ' bene concordans matrimonium separari a patre prohibuit' (Paulus, Sent. v. 6, § 15). Cp. Lenel, Edictum, p. 391, n. 4. unknown to the jus civile. It was the jus gentium which, so to § 80. speak, discovered her and introduced her into Roman law. L. 2 D. de lib. exhib. (43, 30) (HERMOGENIAN.): De uxore exhibenda ac ducenda pater etiam, qui filiam in potestate habet, a marito recte convenitur. § 81. The Proprietary Relations between Husband and Wife. (1) Marriage with Manus. In a marriage with manus the proprietary relations between husband and wife were, as already observed (§ 80), the same as those between a paterfamilias and his children in power. Whatever the wife possessed at the time of her marriage passed to the husband by the necessary operation of the law, and the same rule applied to all property acquired by her after her marriage, whether by gift, devolution, personal services, or otherwise. The wife stood absolutely filiaefamilias loco.' As regards her liabilities, the husband was on principle as little answerable for them as he was for the liabilities contracted by his children. It was only in those particular and exceptional cases where the praetorian law fixed the father with liability for the contracts of his children, that a husband could be similarly sued by an actio adjecticiae qualitatis (sup. § 75) on a contract concluded by his wife. It was, however, considered unfair that the husband should acquire all his wife's antenuptial property without being answerable for her debts. Hence, if he refused to pay debts validly contracted by the wife prior to her marriage, the praetor would direct bankruptcy proceedings to be taken in respect of the wife's antenuptial property, thereby treating the marriage as non-existent as far as such antenuptial property was concerned. The wife's delictual liabilities had the same effect as those of a filiusfamilias, i. e. the husband became liable to a noxal action (sup. §73). If he was unwilling to take upon himself the consequences of his wife's delict (i. e. pay the damages or the penalty), he could deliver his wife into mancipium (servae loco, inf. p. 390) to the plaintiff. This was one of the cases where the husband's right to sell his wife into bondage acquired practical importance. Bb § 81. |