to the other incidents of such a marriage. Only a wife married by § 97. confarreatio was protected from arbitrary divorce on the part of her husband by the necessity of a diffarreatio. The dissolution of a 'free' marriage (divortium) could be brought about either by mutual agreement between both parties or by the will of one party only. The essential element was thus the intention to dissolve the marriage. It was only for the sake of having some sure criterion of the seriousness of such an intention that Roman law required what was called a 'repudium,' i. e. an actual execution of the intention to separate by means of an express notification addressed by one spouse to the other. Such a notification might be conveyed either by word of mouth or through a messenger; the lex Julia de adulteriis, with a view to facilitating proof, required the presence of seven witnesses. Accordingly a mere agreement to dissolve a marriage was not in itself sufficient to effect the dissolution; in addition to the agreement there had to be a repudium mittere (dare) on the part of one of the spouses'. And as far as the right to bring about a divorce was concerned, the legal position of the wife was precisely the same as that of the husband. The rules of divorce which were recognized in the case of 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 operated indirectly to dissolve even marriages with manus, by compelling the husband to take all necessary steps for the purpose of extinguishing the manus on his side. And finally, when marriages with manus fell 1 The statements contained in the text are based on the arguments of K. Zeumer as set forth in his Geschichte d. westgothischen Gesetzgebung, vol. xxiv. (1899) of the Neues Archiv d. Gesellschaft für ältere deutsche Geschichtskunde, pp. 620622. The view which has hitherto prevailed, and which was adopted even in the seventh (German) edition of this work, was that divortium meant a divorce by mutual consent and repudium a divorce by unilateral act. Zeumer has clearly shown this view to § 97. into disuse altogether, the rules of the jus gentium prevailed in regard both to the conclusion and the dissolution of marriages. Freedom of divorce-i. e. the right of either party to dissolve the marriage at will by simple notice to the other party-was not formally 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 sufficient cause, she was ordered to forfeit her dos; where the husband was the offender, he was deprived of his donatio propter nuptias, in other words, he was required actually to pay over the donatio he had covenanted to pay. 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 just cause a positive proprietary benefit at the expense of her husband (p. 493). 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 § 97. sit; haec autem virum repudio misso proinde conpellere potest atque si ei numquam nupta fuisset. § 98. Second Marriages. If either parent re-married, the interests of the children of the § 98. first marriage were protected (in the later Roman Empire) by a number of legal rules the effect of which was to confer certain benefits on the children and to impose certain disabilities—the socalled 'poenae secundarum nuptiarum'-on the 'parens binubus.' The most important of these rules was one which declared that the 'lucra nuptialia,' i. e. all the property which the parens binubus had 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, and that only a usufruct should be reserved for the parens binubus. A widow was not allowed to re-marry before the expiration of her year of mourning. If she violated this rule, she suffered infamy; her rights of succession were curtailed (she being more especially disqualified from taking any property by will, cp. infra, p. 592), and her power to dispose of her property in favour of her second husband was subjected to certain restrictions. § 99. Celibacy and Childlessness. The extent to which the ancient spirit of Rome had deteriorated § 99. even in the early days of the Empire, is strikingly shown by the comprehensive series of marriage laws (the lex Julia de maritandis ordinibus 4 A.D., and the lex Papia Poppaea 9 A.D.) which the Emperor Augustus considered it necessary to enact. One of these laws prohibited senators and their children from intermarrying with freedmen or infames, and freemen from intermarrying with infames. Others-such as the law that a woman who, being an ingenua, bore K k SOHM: LEDLIE § 99. three, or, being a liberta, four children, should be free from the tutela mulierum-were deliberately designed to promote marriages and to encourage the bearing of children. The same policy found expression in the corresponding penalties imposed on celibacy and childlessness. Caelibes and orbi (i.e. persons who remained unmarried without sufficient cause and childless persons) were declared incapable-'incapaces'-of taking property under a will (infra, p. 592), caelibes being treated as totally incapable, orbi as partially incapable. It was further provided that a woman should not be allowed to take all the property given to her by a will, unless she had the 'jus trium vel quatuor liberorum,' but the emperor had the power to bestow this right by way of privilege on a woman who had not in fact the requisite number of children. A testamentary gift to an incapax becomes 'caducum,' and, as such, may be claimed by the persons taking a benefit under the will who have children, or in default of such persons by the treasury (caducorum vindicatio). The penalties on celibacy and childlessness were abolished by enactments of Constantine and subsequent emperors; Justinian did away with the above-mentioned prohibitions on intermarriages. GAJ. Inst. II § 286: Caelibes per... legem Juliam hereditates legataque capere prohibentur ; ... item orbi... per legem Papiam ob id quod liberos non habebant dimidias partes hereditatum legatorumque perdunt . . . . . . eaque translata sunt ad eos qui in eo testamento liberos habent, aut si nullus liberos habebit, ad populum. ULP. tit. 17 § 1: Quod quis sibi testamento relictum, ita ut jure civili capere possit, aliqua ex causa non ceperit, caducum appellatur, veluti ceciderit ab eo, verbi gratia si caelibi . . . legatum fuerit nec intra dies centum caelebs legi paruerit. II. PATRIA POTESTAS. § 100. The Modes in which Patria Potestas originates. $100. Patria potestas might either arise by operation of law or it might be artificially created by a juristic act. It arose by operation of law, first, in respect of children begotten in lawful wedlock (not § 100. in respect of the offspring of a concubine), and, secondly, from the legitimation of children not begotten in lawful wedlock, whether such legitimation were effected 'per subsequens matrimonium' or 'per rescriptum principis.' The juristic act by which patria potestas could be artificially created in Roman law was adoption. Of adoption there were two kinds. The person adopted might be either a paterfamilias, in which case the adoption was called 'arrogatio,' or a filiusfamilias, in which case it was called adoption, in the narrower sense of the term '. In either case the person adopted underwent capitis deminutio minima, because he changed his agnatic family (p. 189). 1. Arrogatio. According to the old law every arrogatio required a preliminary investigation by the pontifices and a decree of the comitia curiata. At a subsequent period arrogatio by imperial rescript came into use, and in the later stages of Roman law this was the only form employed in ordinary cases. At no time, however, could an arrogatio be effected by a mere private juristic act. A change of family relations such as was involved in an arrogatio was regarded as a matter of public concern. Hence the necess: y for ceremonies of a public character. No one, however, could be adopted by arrogatio in the comitia curiata, unless he was himself capable of declaring his assent to the arrogatio in the popular assembly. Since every arrogatus was a party to the act of arrogatio as carried out in the comitia, it followed that he must have the necessary qualifications to enable him to participate in that act in the comitia curiata. Consequently there could be no arrogatio of an impubes or of a woman. An impubes was legally disqualified from giving any valid assent at all, and women were incapable of appearing in the popular assembly. Antoninus Pius, however, permitted the arrogatio of an impubes under certain conditions, viz. that it should prove to be for the benefit of the impubes, that it should be agreed As to the meaning of the terms paterfamilias (homo sui juris) and filiusfamilias (homo alieni juris: a son, daughter, grandchild in paternal power) |