of the Roman law of marriage, now became a mere accessory, the § 92. absence of which in no way affected the validity of a marriage*. The development we have just described was completed as early as the Republic. During the Empire informal 'free' marriages definitely superseded marriages with manus. Coëmtio and confarreatio disappeared. Usus had lost its effect, and the trinoctium was therefore no longer required. In Justinian's law the rule was that a marriage could be concluded by any declaration of consensus, whatever the form of such declaration might be-consensus facit nuptias-provided only that what the parties to the declaration contemplated was an immediate entry upon the married state; that is to say, the consensus, in order to be operative, must be carried into effect at once by means of an actual commencement of matrimonial cohabitation-a commencement which was usually solemnized by a formal 'deductio in domum.' In Roman law a marriage is concluded by consensus nuptialis, and not by consensus sponsalicius, i. e. not by an agreement to marry at some future time. Engagements to marry were contracted by means of a stipulatio (sponsio, sponsalia). In Rome, however, stipulationes of this kind were never actionable (cp. p. 401, n. 1), though their actionability came to be recognized in the rest of Latium". 'Concubinatus' was the name applied to certain quasi-matrimonial relations which, though involving some legal disabilities, were nevertheless acknowledged by the legislation of the Empire (since Augustus) as constituting likewise a mode of lawful union between a man and a woman for the purpose of permanent mutual companionship. A concubine however was not called uxor, nor did she share the rank and position of the man. Nor again did the offspring of such a union (technically called 'liberi naturales ') fall under the patria potestas of their father. A man who was married could not have a concubine at the same time. For concubinage, like full marriage, See Karlowa's account of this subject in his Röm. RG., vol. ii. pp. 167, 168. The views there expressed differ in some respects from those embodied in the text. 5 Cp. A. Pernice, Sitzungsberichte d. Berliner Akademie, vol. li. p. 1194. A different view is taken by Karlowa, op. cit., vol. ii. p. 178. § 92. was in its nature monogamous, and was therefore incompatible with any other relation of a similar character. 'Contubernium' was the marriage of slaves. Such a union, though practically the same as a marriage, was not recognized by law as a marriage. § I. de patr. pot. (1, 9): Nuptiae autem sive matrimonium est viri et mulieris conjunctio, individuam consuetudinem vitae continens. L. D. de ritu nupt. (23, 2) (MODESTIN.): Nuptiae sunt con- CICERO Top. c. 3: Genus enim est uxor; ejus duae formae, PAULI Sent. II tit. 20: Eo tempore quo quis uxorem habet Eod. tit. 19 § 6: Inter servos et liberos matrimonium contrahi § 92. non potest, contubernium potest. L. 30 D. de R. I. (50, 17) (ULPIAN.): Nuptias non concubitus, sed consensus facit. 893. Marital Power. Manus mariti is the marital power of the old type. It represents § 93. a particular form of the general power exercised by the head of a household over its members-a kind of counterpart of the patria potestas. An uxor in manu (materfamilias), being by virtue of the manus a member of her husband's household (a sua '), stands legally 'filiaefamilias loco.' The relations between her and her husbandboth as regards her person and her property-are governed by the same rules of law as govern the relations between father and 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, just as he may chastise or kill his child. He may even sell her, as he may sell a child, into bondage. In cases of a very grave character he is required-not, however, by the law, but solely by custom and tradition to consult a family council (judicium propinquorum). But even in these cases 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 lawthe tendency of which was, generally speaking, to improve the position of filiifamilias-that the effect of manus, like that of patria potestas, was stripped of much of its harshness. On the other hand, as regards the wife's property, the rule is the same as in the case of a child in power, viz. whatever the wife acquires she acquires for her husband, and any property she may have at the time of her marriage passes in its entirety (per universitatem) to her husband by the necessary operation of law (infra, p. 480). And since the wife by marrying with manus becomes a member of a different household (viz. the familia of her husband), it follows that she changes her agnatic family and undergoes capitis deminutio minima in consequence of the conventio in manum (supra, p. 189). § 93. 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 (supra, p. 466), 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 general authority of the head of the household, the same patria potestas, as they are. The mother can never be the head of an agnatic family, that 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 differentiating between the several 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 within the law of parent and child. The entire law of husband and wife acquires a very different aspect when viewed with reference to '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 as the head of the household. She ceases to change her agnatic family, and con 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 necessarily corresponded to their legal status as regarded from the formal point of view of the ancient marriage law. sequently ceases to suffer capitis deminutio. If she was sui juris § 93. 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, though the effect of this patria potestas is annulled, wherever it conflicts with the power of the husband. 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. 185). A free marriage is not however, by any means, a marriage without marital power. Indeed, 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 undeveloped condition), the marital power (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 2. With the husband's right to the companionship of his wife is connected his right to decide all questions incident to the married life. It is he, for example, who determines where they shall reside, for the wife ipso jure shares her husband's domicile; 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 This interdict, it is true, belongs to the post-classical law; it is referred to by Hermogenianus (i. e. in the middle of the fourth century). See the passage quoted at the end of this section. The only interdict on this subject that occurs in the praetorian edict is the 'interdictum de liberis exhibendis, item ducendis ' |