§ 95. it was where the dissolution of the marriage was caused by the misconduct of the wife. The actio rei uxoriae became transmissible, i. e. it was granted not only to the wife, but also to her heir, though the heir was excluded in favour of a person who had given a dos profecticia, if any such person survived the wife. A right of retainer could only be claimed by the husband propter impensas necessarias, i. e. on the ground of expenses which were necessary for the preservation of the dotal property. For the rest, immovables had to be returned at once, movables within a year. The husband was, moreover, liable to pay compensation if he had alienated any of the movables, or if any of the res dotales had been damaged through want of proper care on his part. Thus in Justinian's law the right to claim a return of the dos had become a definite proprietary right, and the statutory claim had been assimilated to the contractual one. Only a few traces of the old actio rei uxoriae remained. Justinian himself says that it was the object of his enactment to grant a statutory actio ex stipulatu in lieu of the actio rei uxoriae, but an actio ex stipulatu which should be bonae fidei in so far as it preserved (in regard to divorce, compensation, and impensae) certain features borrowed from the old actio rei uxoriae. Justinian, however, went a step further. If the action for the recovery of the dos was brought by the wife herself (not by her heirs or by the person who gave the dos), she (the wife) was primâ facie entitled to sue as owner in respect of such of the res dotales as were, for the time being, in the possession of her husband. For the purpose, moreover, of securing the wife her legal right to recover the dos, Justinian gave her a privileged hypothec over the entire estate of her husband. In the event of the husband becoming impoverished, the wife was entitled to enforce her rights at once, even during the continuance of the marriage. The upshot of these reforms in the law was that, on the dissolution of the marriage, the husband practically ceased to be owner of the dotal property. His estate became subject in all cases to a charge to secure the return of the dos, and, as against the wife, the termination of the marriage had the effect of extinguishing his ownership. In all these rules as to the dos-in the rule prohibiting the § 95. alienation and mortgaging of dotal land and the rule requiring the husband to exercise care in regard to the dotal property, on the one hand, and in the rules concerning the restitution of the dos as shaped by Justinian's legislation, on the other hand-we can trace the gradual recognition by the law of a truth which had long been acknowledged in practice, the truth namely that the dos belonged in substance to the wife and only in form to the husband, the truth, in other words, that the dos was neither more nor less than a portion of the wife's property—res uxoria—which was entrusted for a certain time to the husband. The husband's ownership was thus reduced in law as well as in fact to a mere form; practically speaking, it only entitled him to enjoy the dotal property for as long as the marriage relation subsisted'. ULP. tit. 6 § 1: Dos aut datur aut dicitur aut promittitur. § 2: §3 eod. Dos aut profecticia dicitur, id est, quam pater mulieris L. 14 C. de jure dot. (5, 12) (DIOCLET. et MAXIMIAN.): Mater ULP. tit. 6 13: Mariti mores puniuntur in ea quidem dote quae a die reddi debet, ita ut propter majores mores prae • The lines upon which the development of the Roman law of dos proceeded were largely determined by the influence of Greek law, according to which the wife was the owner, as against both her husband and her father, of the $95. § 96. sentem dotem reddat, propter minores senum mensum die; in ea autem quae praesens reddi solet, tantum ex fructibus jubetur reddere quantum in illa dote quae triennio redditur repraesentatio facit. § 29 I. de action. (4, 6): Fuerat antea et rei uxoriae actio ex bonae fidei judiciis. Sed cum, pleniorem esse ex stipulatu actionem invenientes, omne jus quod res uxoria ante habebat, cum multis divisionibus in ex stipulatu actionem quae de dotibus exigendis proponitur transtulimus, merito rei uxoriae 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. § 96. Donatio propter Nuptias. In Roman law a gift by a man to his betrothed was, on principle, undoubtedly valid, just as a gift by a husband to his wife was, on principle, undoubtedly void (p. 483). A donatio ante nuptias was therefore 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 behalf of the intending husband) to the future wife with the express object of making provision for the pecuniary demands of the marriage state, and thereby enabling the marriage to take place. A donatio ante nuptias was 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 pecuniary means'. And it It was in the Eastern Empire that the development of donatio ante nuptias as a legal institution took place. There a donatio ante nuptias had all along been regarded as an essential require ment of a valid marriage, having originated in the bride-price which the intending husband was expected to pay to the bride's father. As in German law, so here, what had at first been a was this fact—the fact that donationes ante nuptias were intended to § 96. The Emperor Justinus, Justinian's father, ordained that a donatio gift to the bride's father, became a gift Cp. H. Brunner, Die fränkisch- vol. xxix. (1894), P. 545 ff. Branner has shown that the dos we read of in M § 97. 897. The Termination of Marriage. A marriage is terminated by the death of either party. In Roman law a marriage could also be dissolved by means of a juristic act on the part of the husband and wife. A civil law marriage by confarreatio could only be dissolved by means of a formal act. The form which the pontifices adopted was modelled on the principle of 'contrarius actus' (cp. supra, p. 450). That is to say, the parties who desired to dissolve a confarreate marriage by their own act, were required to resort to a 'diffarreatio,' i. e. to a counter-sacrifice offered with certa-but 'contraria '—verba to Jupiter, the god of marriage. The co-operation of the pontiffs was as essential to the counter-sacrifice of diffarreatio as it was to the original sacrifice 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 co-operate 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, were dissolved by remancipatio, i.e. by a fictitious sale into 'mancipium,' or bondage, followed by manumission on the part of the fictitious vendee. The remancipatio of a materfamilias was precisely identical with the emancipatio of a filiafamilias (infra, p. 507). In this, as in other respects, the 'purchased' wife in manu was legally in the same position as a child. A paterfamilias might discharge (i. e. emancipate) his wife from his power in the same way as he might discharge his child. In its formal aspect a remancipatio was not so much an act of divorce, as an act of discharge, or repudiation. Here again the law recognized no difference between an uxor in manu and a child. A wife in manu was as little a free party to the act of divorce as a child was a free party to the act of emancipation. In the old law, therefore, the consent of the wife was not necessary. She had neither the power to require nor the power to prevent a divorce. The husband's legal authority in regard to the dissolution of a marriage with manus was as absolute as it was in regard |