« PreviousContinue »
procreaverimus. Nuptiae autem sive matrimonium est viri et 1 mulieris coniunctio, individuam consuetudinem vitae continens/
an independent person. But without doubt the chief reason why it had never been found necessary to cut short, by legislative interference, the duration of patria potestas at puberty or majority was the fact that to public matters it had no relation whatever. In respect of all public functions the filiusfamilias was an independent person : in the field of private law he was incapable of right, or power, or authority on his own account, but in all other matters he was as capable of right as his father: 'filiusfamilias in publicis causis loco patrisfamilias habetur, si magistratum gerat, vel si tutor detur' Dig. 36. 13. 5, 'quod ad ius publicum attinet, non sequitur ius potestatis' ib. 14; cf. Maine's Ancient Law p. 139.
At first, perhaps, there was little to distinguish the power of a father over his children from that of a master over his slaves, except the fact that the filiusfamilias was always recognised as a 'persona ;' accordingly, though his pater could sell him, the purchaser could not own him as he could own a slave, but could only hold him in mancipio. The absolute control which the father possessed over him is best appreciated by considering the former's powers over his person, and the son's own position in respect of property, contract, and capacity to sue.
Originally the paterfamilias had ius vitae necisque over those in his power, so that, as Mr. Poste remarks, the lex Pompeia de parricidiis, B.C. 52 (Bk. iv. 18. 6 inf.) omits the father from the list of persons who could be guilty of 'parricide': a fortiori, he possessed the right of uncontrolled corporal chastisement. But under the Empire these powers had dwindled to the mere right of bringing serious domestic offences under the cognisance of the magistrate, though in trifling matters the father might still take the law into his own hands. The killing of a child was first made 'parricide' by Constantine; in the time of Hadrian a father who had acted thus under great provocation had been deported to an island. From Plautus (Plut. Amphitruo. i. 3. 3) it seems to have then been common for parents to expose their infants to perish of cold and hunger; this was strictly prohibited A. D. 374 (Cod. 8. 52. 2) and a law of Diocletian and Maximian forbade children to be sold, pledged, or given away by their pater, though Constantine permitted their sale immediately after birth in cases of extreme poverty, reserving, however, an 'equity of redemption' which could in no way be forfeited. Justinian (Nov. 134. 7) found it necessary to repeat the prohibition of childpledging, and increased the penalties against creditors who attempted to enforce rights thus acquired; his abolition of noxal surrender of filiifamilias has been noticed on Tit. 8 pr. supr. So, too, the pater could originally marry his son or daughter to whomsoever he pleased, and divorce them at pleasure, besides transferring them to another family by adoption ; 'but later in the imperial period the privilege of dictating marriage had declined into a conditional veto; and adoption itself, destined to lose almost all its ancient importance in the reformed
2 Ius autem potestatis, quod in liberos habemus, proprium est civium Romanorum: nulli enim alii sunt homines, qui talem
system of Justinian, could no longer be effected without the assent of the child transferred to the adoptive parentage' (Maine, Ancient Law p. 138). By a constitution of Marcus Aurelius the pater was forbidden to divorce a son or daughter in his power without the latter's consent . Accordingly, Ulpian says in Dig. 43. 30. 1. 5 'si quis filiam suam, quae mihi nupta sit, velit abducere, vel exhiberi sibi desideret, an adversus edictum exceptio danda sit, si forte pater concordans matrimonium, forte et liberis subnixum velit dissolvere? Et certo iure utimur, ne bene concordantia matrimonia iure patriae potestatis turbentur.'
In the field of property, the original rule was that the filiusfamilias could have no proprietary rights, and whatever he acquired by gift, inheritance, or otherwise, belonged to his father only. This doctrine was not broken in upon till the Empire, when, by the institution of peculium castrense, the son was enabled to own property acquired in certain modes. For this, and the later history of his proprietary rights, see Bk. ii. 9. 1, and notes inf.
In respect of contract the filiusfamilias had always been in a different position from a slave. A slave could be a party to a contract, and any advantage which was to be derived belonged to the master (Bk. iii. 17 inf.) ; but if he attempted to bind himself by a promise the resulting obligation was 'naturalis' only, and neither he nor his master could be sued upon it : 'melior conditio nostra per servos fieri potest, deterior non potest' Dig. 50. 17. 133. Some alteration, however, was made in this latter point by the introduction of the actiones adiectitiae qualitatis, Bk. iv. 7 inf. But the promise of a filiusfamilias had always given rise to civilis obligatio: 'filiusfamilias ex omnibus causis tanquam paterfamilias obligatur, et ob id agi cum eo tanquam cum patrefamilias potest' Dig. 44. 7. 39. Thus, on the son's contracts, the pater took all the gains, while for the debts the son was liable to be sued, the pater not. But it is not to be supposed that people would be over ready to contract with a person who had no means wherewithal to satisfy the judgment in case he was condemned ; hence we may say generally that, in Roman law, though the capacity to validly bind oneself by contract does not go hand in hand with proprietary capacity, yet the practical exercise of that capacity probably did: and accordingly it was not until the filiusfamilias had acquired proprietary rights through the development of the doctrine of peculium, and the introduction of the actiones adiectitiae qualitatis had to some extent rendered a pater liable on his son's engagements, that the latter's contractual capacity was often called into exercise.
As the filiusfamilias had no rights of property, so he could have no rights of action in respect thereof, and therefore could not, as a rule, sue in his own name in a court of justice. To this there were a few exceptions: 'filiusfamilias suo nomine nullam actionem habet nisi iniuriarum, in liberos habeant potestatem, qualem nos habemus. Qui 3 igitur ex te et uxore tua nascitur, in tua potestate est: item qui ex filio tuo et uxore eius nascitur, id est nepos tuus et neptis, aeque in tua sunt potestate, et pronepos et proneptis et deinceps ceteri. qui tamen ex filia tua nascitur, in tua potestate non est, sed in patris eius.
Iustas autem nuptias inter se cives Romani contrahunt, qui secundum praecepta legum coeunt, masculi quidem puberes
et quod vi aut clam, et depositi et commodati ut Iulianus putat' Dig. 44. 7. 9. For an explanation of this anomaly see Mr. Poste on Gains i. 55.
Patria potestas could originate in three ways: (1) by birth, as mentioned in this Title; (2) children not in the father's power at birth might be afterwards subjected to it by legitimation or some analogous process, Tit. 10. 13, and notes, inf. ; (3) by adoption, Tit. 11 inf.
§ 3. Grandchildren by a son are in the power of their grandfather only if their father was himself subject to it at the time of their conception: if, before that time, he had been emancipated, they are born in his potestas, not in that of their grandfather: so too with great-grandchildren by a grandson, and so on. The children of a daughter, or of a granddaughter by a son, etc., were never in the power of her father or grandfather, but in that of their own father or paternal grandfather. This was expressed in the maxim 'mulier familiae suae et caput et finis est' Dig. 50. 16. 195. 5 ; cf. Maine, Ancient Law p. 148.
Tit. X. Nuptiae, matrimonium, or marriage, has been defined in the preceding Title as 'viri et mulieris coniunctio, individuam vitae consuetudinem continens.' This definition was borrowed by Justinian from Modestinus, who says (Dig. 23. 2. 1), 'nuptiae sunt coniunctio maris et feminae, et consortium omnis vitae, divini et humani iuris communicatio.' The last words remind us that in the earliest days of Rome marriage was a holy relation. In whatever form it took place, and not only in that of confarreatio, it founded a religious communion between husband and wife, and therefore received at its commencement a religious sanction. But in his own age Modestinus' words were a mere reminiscence of the primitive practice, and must not be understood to express the Christian conception of the married state, Christianity not having become the national religion till many years afterwards.
Iustae nuptiae, legitimum matrimonium, or marriage which would give patria potestas over the issue, required one special condition besides those necessary for marriage in general, viz. connubium, and this belonged to Roman citizens only, with the exception of certain communities on whom it had been bestowed as a special boon (' connubium feminae autem viripotentes, sive patres familias sint sive filii familias, dum tamen filii familias et consensum habeant
concessum' Ulpian, reg. 5. 4). After Caracalla (211-217 A.D.) had conferred the civitas on all free subjects of the empire, of course absence of connubium was rather the exception than the rule.
Apart from this, the general conditions of marriage were as follow. (1) Certain persons were absolutely incapable of marriage, viz. slaves, castrati, persons below the age of puberty, those already married, and women whose husbands had not yet been dead a certain time fixed by law. (2) The parties must not stand within certain degrees of relationship to one another, §§ 1-11 inf., and must (3) themselves consent to the marriage: 'nuptias non concubitus sed consensus facit' Dig. 23. 2. 30. (4) They must, if alieni iuris, have the consent of the persons in whose power they are: cf. with this paragraph Dig. 23. 2. 2 'nuptiae consistere non possunt, nisi consentiant omnes, id est, qui coeunt, quorumque in potestate sunt.' For exceptional cases, in which the parents'consent was required for the marriage even of emancipated daughters, see Livy 4. 9, Cod. 5. 4. 1, 18. 20. (5) Marriage was forbidden by positive law between the members of certain ranks or orders of society: e. g. between ingenuus and infamis, between senators and liberti, members of the dramatic profession, etc., by the lex.Iulia et Papia Poppaea. Other enactments of a similar kind were made by Constantine, Cod. 5. 27. 1, Leo and Anthemius (Nov. Anthem. 1), and Justinus, Cod. 5. 4. 23. On the religious ground marriage was forbidden between Jew and Christian, and on account of official relation between the praeses and his provincial subjects, between the tutor and his female ward, etc. (6) Persons convicted of adultery with one another might not subsequently marry (Nov. 134. 14), and the same rule applied in cases of abduction, Cod. 9. 24. 1, Nov. 143. 150.
Marriage was contracted merely by consent, and no form was prescribed by law. It is true that in the earlier period marriage was usually accompanied by manus, which, as we have seen, was not completely obsolete even in the time of Gaius; but the former was independent of the latter, which was superimposed on it by some additional ceremony or fact—confarreatio, coemptio, or usus. The agreement to marry was usually entered into by mutual promises (sponsalia), originally made by sponsio and restipulatio, Dig. 23. 1. 2, a form which would always support an action, so that we may believe that (in an indirect way) the action for breach of promise of marriage was not unknown to the early Romans; i. e. though they never allowed a direct action on the promise to marry, they allowed the stipulation of a penalty in case of breach, and this could be recovered. Finally, however, even this indirect form of compulsion came to be deemed contra bonos mores, and by the introduction of an exceptio doli even the exaction of the penalty was prevented, Dig. 45. 1. 134; and from this time onward the betrothal by stipulation seems to have been discontinued in favour of an informal engagement, and the principle was established, sufficit nudus consensus ad parentum, quorum in potestate sunt, nam hoc fieri debere et civilis et naturalis ratio suadet in tantum, ut iussum parentis
constituenda sponsalia. In earnest of the engagement mutual gifts (arrha sponsalicia) were usual, which were forfeited by a defaulting party, who had also to restore those given by the other side ; and this forfeiture seems, with the exception of some social disapprobation, to have been the only penalty incurred for breach in the time of the classical jurists.
The transition from the state of betrothal to that of actual marriage was not effected by any necessary form, religious or otherwise, but by actual cohabitation, as evidenced by the wife going to live with the husband, accompanied by maritalis affectio, of which the deductio in domum, or taking home of the woman by the man, was regarded only as a proof. By Nov. 74.4. 5, Justinian introduced a compulsory form for the marriage of imperial officials, but for the rest of the Roman world the old rule was left standing.
From iustae nuptiae one has to distinguish nuptiae simply. Originally the former was the only kind of marriage known at Rome. Even, however, in the time of the Republic there had grown into almost equal recognition a matrimonium iuris gentium, a lawful wedlock of persons between whom there was not connubium, which, inferior to iustae nuptiae only in not creating patria potestas, was held in great favour under the empire. In Justinian's time every free subject of the empire practically had connubium, so that the distinction between nuptiae and iustae nuptiae, important before the edict of Caracalla, had ceased to have any significance.
The marriage state was terminated (1) by either party dying or becoming a slave. Where the slavery resulted from captivity, postliminium had not originally the effect of restoring the married condition, but a fresh consensus was required if the parties still wished to be husband and wife, Dig. 49. 15. 14. 1. This rule, however, underwent a gradual change, and eventually captivity was regarded as in no way different from ordinary absence, proof being required of the absent party's death before the other could contract another marriage, Nov. 117.11. (2) By 'incestus superveniens;' e.g. if a man adopts his daughter's husband, the latter thereby becomes his own wife's brother, Dig. 23. 2. 67. 3; cf. this Title, passim. (3) Dy divorce. Upon this the Romans held that as the essence of marriage lay in the maritalis affectio, it could be terminated by the mere mind of either party no longer to live in wedlock with the other; the continuance of the marriage depended on that of the affectio. Either party was thus free to terminate the connection at pleasure, and agreements surrendering this privilege were void: 'libera matrimonia esse antiquitus placuit, ideoque pacta ne liceat divertere non valere constat' Cod. 8. 39. 2. If the separation was effected by mutual arrangement, it was usually called divortium, if by the act of one party only, repudium: 'in repudiis vero, id est, renunciatione, comprobata sunt haec verba: tuas res tibi habeto: item haec, tuas res tibi agito' Dig.