§ 82.

actione sublata, ex stipulatu, quae pro ea introducta est, naturam bonae fidei judicii tantum in exactione dotis meruit, ut bonae fidei sit. Sed et tacitam ei dedimus hypothecam ; praeferri autem aliis creditoribus in hypothecis tunc censuimus, cum ipsa mulier de dote sua experiatur, cujus solius providentia hoc induximus.

L. 75 D. de jure dot. (23, 3) (TRYFONIN.): Quamvis in bonis mariti dos sit, mulieris tamen est.

§ 83.

§ 83. Donatio propter Nuptias.

In Roman law a gift by a man to his betrothed is, on principle, as undoubtedly valid as a gift by a husband to his wife is, on principle, undoubtedly void (p. 371). A donatio ante nuptias, therefore, is essentially different from a gift made after the marriage. In the later empire the term 'donatio ante nuptias' was applied, in a special technical sense, to a gift made by the intending husband (or by some other person on his behalf) to his betrothed, such gift being conditional on the marriage taking place, and being expressly designed to meet the pecuniary demands of the marriage. A donatio ante nuptias is thus primarily, not a gift in consideration of natural affection, but a gift with a perfectly definite material object-the object, namely, of endowing the future marriage with the requisite means. And it is this fact-the fact, namely, that donationes ante nuptias are intended to satisfy a specific material object—that distinguishes such gifts from ordinary gifts between betrothed persons. The ultimate purpose is to make a proper provision for the wife in the event of the dissolution of the marriage. If the wife is divorced from her husband through no fault of hers, or if she survives him, she hassave in certain exceptional cases where the law gives her a right of succession (sup. p. 370)—no legal claim against his estate except one for the restoration of her dos. It becomes, therefore, an object of importance to strengthen, as it were, her claim to the dos, and it is for this purpose that the donatio ante nuptias, in its technical sense, is employed. As a rule, the donatio ante nuptias is constituted in an amount equal to that of the dos, and Justinian gave statutory force to

this rule by means of his 97th Novel. If the wife is divorced from § 83. her husband without her fault, she is entitled by law to the donatio ante nuptias. She is equally entitled to it, though by special agreement only, in the event of her surviving her husband. The practical result in such cases is that the wife can claim payment of double the amount of her dos (cp. also inf. p. 383). During the continuance of the marriage ownership in the donatio ante nuptias vests in the husband, but where the gift includes land, the husband is prohibited, by an enactment of Justinian (Novel 61), from validly alienating or mortgaging it.

The Emperor Justinus, Justinian's father, decreed that a donatio ante nuptias might be validly increased even after the conclusion of the marriage. Justinian went a step further, and provided that a donatio ante nuptias might even be validly constituted after the marriage. The traditional name having thus become a misnomer, Justinian ordered that such gifts should in future be called donationes propter nuptias.

§ 84. The Termination of Marriage.

Marriage is terminated by the death of either party. In Roman § 84. law a marriage may also be dissolved by means of a private juristic act of the husband and wife.

In the case of a civil law marriage by confarreatio a divorce is a formal act. The form which the pontifices adopted was modelled on the principle of 'contrarius actus' (cp. sup. p. 341). A marriage by confarreatio can only be dissolved by 'diffarreatio,' i. e. by a sacrifice offered to Jupiter, the god of marriage, with certa (viz. contraria) verba. The co-operation of the pontiffs is as essential to the sacrifice of diffarreatio as it is to that of confarreatio. This would seem to be the explanation of the fact that a marriage by confarreatio could not be dissolved at will, for the pontiff might decline to cooperate where there was no ground which the jus sacrum recognized as sufficient to justify a divorce.

Marriages by coëmtio and usus, on the other hand, are dissolved by remancipatio, i.e. by a fictitious sale into 'mancipium' or bondage,

§ 84. followed by manumission on the part of the fictitious vendee.

The remancipatio of a materfamilias is precisely identical with the emancipatio of a filiafamilias (inf. p. 393). In this, as in other respects, a wife in manu who has been 'purchased' is legally in the same position as a child. Just as a paterfamilias may discharge (i.e. emancipate) his child from his power, so he may discharge his wife. In its formal aspect a remancipatio is not so much an act of divorce, as an act of discharge. The rules by which an uxor in manu is treated precisely as though she were a child in power, receive here a further illustration. A wife in manu is as little à free party to the act of divorce as a child is a free party to the act of emancipation. In the old law, therefore, the consent of the wife is not necessary. She has neither power to require nor to prevent the divorce. The law gives the husband absolute authority in regard to the dissolution as well as the other incidents of a marriage with manus. Only a wife married by confarreatio is protected from arbitrary divorce on the part of her husband by the necessity of a diffarreatio.

In the jus gentium, on the other hand (i. e. in the case of free marriages), divorce is an informal act. The lex Julia de adulteriis, indeed, required the presence of seven witnesses, but the object of this provision was merely to secure clear evidence, in all cases, that the intention to separate was a deliberate one. Free marriages can be terminated by an agreement between husband and wife (divortium), or by one-sided notice on the part of either (repudium). In both cases the wife is a free party to the act of divorce, and, as such, has the same rights as the husband.

The rules of divorce as applied to free marriages were afterwards extended to marriages with manus. A wife in manu could not, it is true, directly effect the extinction of manus by means of a repudium. Nevertheless, according to the view of the later times, the wife's repudium (or divortium) operated indirectly to dissolve even marriages with manus. The husband, namely, was thereby compelled to take all necessary steps for the purpose of extinguishing the manus on his side. And finally, when marriages with manus fell into disuse altogether, the rules of the jus gentium prevailed in regard not only to the conclusion, but also to the dissolution of marriages.

Freedom of divorce by notice from either party was not formally § 84. abolished even by the legislation of the Christian empire. However causeless the repudium, its effect was to terminate the marriage. It was, however, provided that where a marriage was dissolved without any statutory ground of divorce, the offending party should suffer certain penalties. Thus where a wife repudiated the marriage without just cause, she was ordered to forfeit her dos, and where the husband did so, he was deprived of his donatio propter nuptias; in other words, he was required to pay over, not only the dos, but also the donatio propter nuptias. And in the Christian empire it was the primary purpose of a donatio ante (propter) nuptias to confer on a wife who was divorced without cause a positive proprietary benefit at the expense of her husband (p. 381). This was the reason why, on the conclusion of every marriage, the husband was required to contribute a donatio ante nuptias corresponding to the dos contributed on the part of the wife. Both parties, as it were, gave a pledge for the maintenance of the matrimonial tie-a pledge which seemed necessary in order to counterbalance the freedom of divorce allowed by the law.

L. 2 C. de inutil. stip. (8, 38) (ALEXANDER): Libera matrimonia esse, antiquitus placuit: ideoque pacta, ne liceret divertere, non valere et stipulationes, quibus poenae inrogarentur ei, qui divortium fecisset, ratas non haberi constat.

L. 9 D. de divortiis (24, 2) (PAULUS): Nullum divortium ratum est, nisi septem civibus Romanis puberibus adhibitis praeter libertum ejus, qui divortium faciet.

FESTUS: Diffarreatio genus erat sacrificii, quo inter virum et mulierem fiebat dissolutio; dicta diffarreatio, quia fiebat farreo libo adhibito.

GAJ. Inst. I § 137: Mancipatione desinunt in manu esse, et si ex ea mancipatione manumissae fuerint, sui juris efficiuntur, (ea, quae cum viro suo coëmptionem fecit, virum suum) nihilo magis potest cogere, quam et filia patrem. Sed filia quidem nullo modo patrem potest cogere, etiam si adoptiva sit; haec autem virum repudio misso proinde conpellere potest, atque si ei numquam nupta fuisset.

§ 85.

§ 86.

§ 85. Second Marriages.

In the event of a person marrying a second time, the interests of the children of the first marriage were, in the later Roman empire, protected by a number of legal rules which conferred certain advantages on these children, and imposed certain disadvantages on the 'parens binubus' (the so-called 'poenae secundarum nuptiarum '). This was more particularly the object of the rule that the so-called 'lucra nuptialia,' i. e. all the property which the parens binubus acquired gratuitously from his or her deceased spouse (whether by way of gift, dos, donatio propter nuptias, or testamentary disposition) should become ipso jure the property of the children of the first marriage at the moment of the conclusion of the second marriage, a usufruct only being reserved for the parens binubus.

A widow is not allowed to re-marry before the expiry of her year of mourning. If she violates this rule she suffers infamy: her rights of succession are curtailed (she being more especially disqualified from taking any property by will), and her power to dispose of her property in favour of her second husband is subjected to certain restrictions.

§ 86. Celibacy and Childlessness.

The extent to which the ancient spirit of Rome was tending to decline even in the early days of the empire, is strikingly attested by the comprehensive legislation on the subject of marriage (lex Julia de maritandis ordinibus 4 A. D., and the lex Papia Poppaea 9 A. D.) which the Emperor Augustus considered it necessary to carry out. It was under these statutes that senators and their children were forbidden to intermarry with freedmen or infames, and freemen to intermarry with infames. And, at the same time, a deliberate attempt was made to promote marriages and the bearing of children by legislative enactment, by providing, amongst other things, that a woman, who, being an ingenua, bore three, or, being a liberta, four children, should be free from the tutela mulierum. The same policy finds expression in the corresponding penalties imposed on celibacy and