which is 'repudium.' As a marriage was contracted solely by consensus of the married pair, freedom of divorce was in the older Roman Law quite without restriction, and divorce itself-apart from a marriage contracted by confarreatio"-limited to no form. Impp. Diocl. et Max.: Neque ab initio matrimonium contrahere, neque dissociatum reconciliare quisquam cogi potest. Unde intelligis, liberam facultatem contrahendi atque distrahendi matrimonii transferri ad necessitatem non oportere.C. 5, 4, 14.' Imp. Alex. Libera matrimonia esse antiquitus placuit. Ideoque pacta, ne liceret divertere, non valere, et stipulationes, quibus poenae irrogarentur ei qui divortium fecisset, ratas non haberi constat.-C. 8, 38 (39), 2.2 It was only by custom and corresponding 'notae censoriae' that frivolous divorces were repressed. An exception was alone made in respect of the marriage of a freed woman with her patron, who after the 1. Iulia et Papia could not divorce herself from him by a unilateral act. Ulp. Quod ait lex: DIVORTII FACIENDI POTESTAS LIBERTAE, QVAE NVPTA EST PATRONO, NE ESTO, non infectum videtur effecisse divortium, quod iure civili dissolvere solet matrimonium; quare constare matrimonium dicere non possumus, cum sit separatum. . . . Merito igitur, quamdiu patronus eius eam uxorem suam esse vult, cum nullo alio conubium ei est; nam quia intellexit legislator facto libertae quasi diremptum matrimonium, detraxit ei cum alio conubium: quare 1 No one can be obliged to contract a marriage at the outset, nor to renew one that has been dissolved. Therefore, you understand that, free right of contracting and of breaking up a marriage ought not to be subjected to compulsion. 2 It has been held from of old that marriages are voluntary. And so it is established law that agreements impeding divorce are invalid, and that stipulations in which penalties are imposed upon him who had made a divorce are not upheld. cuicumque nupserit, pro non nupta habebitur. QVAMDIV PATRONVS EAM VXOREM ESSE VOLET. 1. 11 pr., § 1, D. h. t.' For the repudium' an express declaration before seven special witnesses was prescribed by the 1. Iulia de adulteriis, which could be made both orally and by document (repudii libellus, or letter of divorce).« Paul. Nullum divortium ratum est, nisi septem civibus Romanis puberibus adhibitis praeter libertum eius, qui divortium faciet."-1. 9 eod.2 Gai. In repudiis autem [i.e. renuntiatione] comprobata sunt haec verba: tuas res tibi habeto,' item haec: tuas res tibi agito.'-1. 2, § I eod.3 BOOK II. a § 163 ad fir, Ulp. si divortium quidem secutum sit, verumtamen iure durat matrimonium, haec successio locum non habet. Hoc autem in huius- Sc. 'unde vir modi speciebus procedit: liberta ab invito patrono divortit,-lex Iulia de maritandis ordinibus retinet istam in matrimonio, dum eam 1 When the statute says: 'The freedwoman who has been married to her patron shall not have the power of making a divorce,' it does not seem to have rendered null the divorce which by i. c. usually dissolves marriage; and therefore we cannot say that the marriage subsists, since it is severed. . . . Justly therefore, as long as her patron wishes to have her for his wife, has she no right to intermarry with another; for since the legislator has considered that by the act of the freed woman the marriage, as it were, has been dissolved, it has taken away from her the right to intermarry with another. If, therefore, she have married whom she pleased, she shall be regarded as not married. Jul. indeed carries his opinion further: that she cannot even live in concubinage with another patron. § The statute says: As long as the patron wishes her to be his wife.' 2 No divorce is valid unless seven Roman citizens of the age of puberty have been called in, besides the freedman of him who shall make the divorce. 3 But in renunciations the following words have become established: You may keep your property to yourself;' the following likewise: You may take your property with you.' et uxor.' BOOK II. a § 54. Ibid. prohibet alii nubere invito patrono; item Iulia de adulteriis, nisi certo modo divortium factum sit, pro infecto habet.-D. 38, 11, 1. un. § I.' The consensus of the paterfamilias was requisite for the conclusion of the marriage; he could also at his own discretion dissolve the marriage of the filiusfamilias, but according to the later Law the consent of the latter was needed;" on the other hand, the approval of the paterfamilias was not necessary for the dissolution of the marriage, at least according to ante-Justinian Law. Imp. Dioclet. Dissentientis patris, qui initio consensit matrimonio cum marito concordante uxore filiafamilias, ratam non haberi voluntatem D. Marcus pater noster religiosissimus imperator constituit, nisi magna et iusta causa interveniente hoc pater fecerit.-Invitam autem ad maritum redire nulla iuris praecepit constitutio.-C. 5, 17, 5.2 Marriage continued in the Law of Justinian to be dissolved by informal private divorce, without any judicial or ecclesiastical concurrence being required; but legislation from the time of Constantine was directed to the restraint of capricious divorce by the imposition of heavy proprietary penalties for divorces that were frivo If indeed a divorce have followed, but the marriage by Law continue, this succession does not obtain. But the following case belongs to this category: a freedwoman divorces herself from her patron against his will; the l. Iulia de marit. ordin. keeps her back in the marriage, whilst it forbids her marrying another against the will of the patron; likewise the l. Iulia de adult. holds a divorce as null unless it be effected in a certain manner. 2 Our late father Marcus, a most pious emperor, directed that if a daughter under paternal power live in harmony with her husband, the desire of her father as opposed, who at first agreed to the marriage, shall be held of no effect, unless he have acted from a weighty and just cause.-But that a wife return to her husband against her will, no constitution of the Law has enjoined. a a BOOK II. Part I. lous or unjustifiable, as well as by the creation of certain grounds of divorce which alone exclude those penalties. No restraint was in the earlier period placed upon a SECOND marriage; only the widow, who married a Ulp. xiv. within the year of mourning (the Romulean of ten months) after the death of her husband, as well as the paterfamilias of such widow, her husband and his paterfamilias, became liable to the punishment of infamy.b Instead of the duty of mourning, regard ' § 57. for the avoidance of uncertainty as to children e Turbatio gradually acquired recognition as a ground of the quis de prole prohibition of second marriage, whereby such prohibi- dubitet." tion had to extend also to the marriage dissolved by divorce; the delay was later on extended from ten to twelve months.-Legislation of the Christian emperors, nevertheless, restricted the second marriage of each of the pair, by annexing to it important proprietary advantages in the interest of existing children of the former marriage. : Paul. Uxores viri lugere non compelluntur.- : Ulp. Etsi talis sit maritus, quem more maiorum lugeri non oportet, non posse eam nuptam intra legitimum tempus collocari; praetor enim ad id tempus se retulit, quo vir elugeretur qui solet elugeri, propter turbationem. sanguinis. § Pomponius eam, quae intra legitimum tempus partum ediderit, putat statim posse nuptiis se collocare; quod verum puto.-1. II, §§ 1, 2 eod.2 Husbands are not obliged to mourn for their wives. Even if he should be such a husband as by the custom of our ancestors ought not to be mourned for, she cannot be married within the statutory period; for the praetor has referred to the time during which the husband would be mourned for who by custom is mourned for, by reason of the confusion of blood. § Pomp. is of opinion that the woman who has given birth to issue within the statutory period can immediately be married; and this I think correct. sanguinis'; 'ne BOOK II. Part I. fam. see Cic. Top. 3, 14. MANUS. § 48. NATURE OF MANUS; ITS SUBJECT-MATTER. 'Manus' is the control of the husband as paterFor the mat. familias over his wife. It was originally the attribute of every 'iustum matrimonium,' and the act of contracting a marriage was at the same time an act to establish manus; later on it became an independent and unessential addition to Marriage, which had to be created by a special act of Law. With this severance from Marriage, manus was at the same time applicable and in use in artificial extension also outside of it, so that a woman, even not matrimonii causa' but for other objects, could for the time being place herself in the manus of a third party. It was in the latter form that manus lasted longest throughout the period of the Classical Law, whilst in the first form it appears as an isolated exception already at the beginning of the imperial times. The legal signification of manus is as follows. (1) The wife leaves her family for that of the husband (or the third person); to him she stands in the relation of a daughter in domestic subjection, so that in relation to the husband she is quasi filiafamilias,'' filiae loco' (or in relation to his paterfamilias, 'neptis loco '), and in relation to the children under his potestas, she is 'sororis loco;' but she retains freedom of divorce. Gai. i. 115b: si omnino qualibet ex causa uxor in manu viri sit, placuit eam filiae iura nancisci.' Ibid. i. § 136:-(mulieres, quae in manum conveiunt) potestate parentis liberantur; nec interest, an in viri sui manu sint an extranei, quamvis 1 If in any case, for whatever reason, a woman is in the manus of her husband, it has been decided that she acquires the rights of a daughter. |