Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/712

688 ROMAN LAW [JUS CIVILE. he had acquired through the adrogation or in manum con- ventio. Law of The Law of the Family Relations. So far as appears family no serious inroad was made by the XII. Tables on the law relations. a ff ec ting husband and wife, unless in the recognition of the legality of marriage entered into without any solemnity, and not involving that subjection of the wife to the hus- band (manus) which was a necessary consequence of the patrician confarreation and plebeian coemption. These were left untouched. But it seems to have become a practice with some of the plebeians to tie the marriage bond rather loosely in the first instance, possibly (as became quite general at a later period) in consequence of objection by the women to renounce their independence and right to retain their own property and earnings, more probably because taking a woman to be merely the mother of their children (matrimonium) had been forced upon them before coemption had been introduced as a means of making her a lawful wife, and so they had become in a manner habituated to it. But there seems also to have been an idea that, as a man might acquire the ownership of a thing to which his legal title was defective by pro- longed possession of it, so he might acquire manus, with all its consequences, over the woman with whom he had thus informally united himself by prolonged cohabitation with her as his wife. This had become customary law. The Tables accepted it ; all that was needed was to define the conditions under which mantis should be held to have been superinduced, and the wife converted from a doubtful uxor into a lawful materfamilias. Hence the provision that, if a woman, married neither by confarreation nor coemption, desired to retain her independence, she must periodically absent herself for three nights from her hus- band's house (trinoctialis usurpatio), twelve months' un- interrupted cohabitation being required to give him that power over her which would have been created instantly had the marriage been accompanied by either of the recognized solemnities. Amongst the fragments of the Tables so industriously collected there is none that refers to a wife's marriage portion (dos) ; but it is hardly conceivable that it was as yet unknown. Justinian says that in ancient times it was regarded as a donation to the husband with his wife, rather than as a separate estate that was to be used by him while the marriage lasted but to revert to her or her repre- sentatives on its dissolution. And it is easy to see that, where there was manus, the wife becoming a member of her husband's family and everything of hers becoming his, such must originally have been its character. But even then, when a mau gave his daughter (.filiafamilias) who could have nothing of her own in marriage, and promised her husband a portion with her, there must have been some process of law for compelling him to pay it ; and Voigt's conjecture that an actio dictae dotis was employed for the purpose has much in its favour. As regards divorce, Cicero alludes vaguely to a provision in the Tables about a man depriving his wife of the house-keys and turning her out of doors, with some such words as " take what is thine and get thee gone." This can- not have applied to confarreate marriages, which could be dissolved only by the religious ceremony of diffarreation. And even as regards other marriages the statement of the historians is that divorces were few and far between until the 6th century of the city, and that, until the same date, any man who turned his wife away, however serious the ground, without the cognition of the family council was liable to penalties at the hands of the censors. Of the two or three provisions of the Tables that affected details of the patria potestas, which itself was assumed to be so well estab- lished by customary law as to need no statutory sanction or defini- tion, one was in the words "si paterfamilias ter filium venum duit, a patre filius liber esto. " This came to be construed by the jurists as meaning that so powerful was the bond of the potestas that it could not definitively be loosed until the father had three times gone through the process of fictitious sale by which emancipa- tion was effected. But the conception of the law seems to indicate that its original purpose must have been rather to confer a benefit on a son in potestate, by declaring him ipso jure free from it on a certain event, than to place difficulties in the way of his emancipa- tion. "If a house-father have thrice sold his son, the latter shall be free from his father." It reads as if the intention were to rescue the son from what, by its frequent repetition, was suggestive of a total absence of parental affection rather than reluctant obedience to over- whelming necessity. May not its object have been to restrain the practice, which prevailed to a late period in the empire, of men giving their children to their creditors in security for their loans, a process that, at the time of the Tables, could be effected only by an actual transfer of the child per aes et libram as a free bondman (mancipii causa), under condition of reconveyance when the loan was repaid ? The nature of the relation between master and slave, like that of mamis and patria potestas, seems also to have been too notorious to require exposition in the Tables. We find recorded only two re- ferences to it, one dealing with the case of a slave who had a con- ditional testamentary gift of freedom (statu liber), the other with uoxal surrender (noxae deditio). The provision about noxal sur- render in all probability was not limited to a slave ; it was to the effect that, if a member of a man's family (familiaris, i.e., a son or a daughter in potestate or a slave) committed a theft from or did mischief to property belonging to a third party, or a domestic animal belonging to one man did harm to another, the father of the delinquent child, or the owner of the slave or animal, should either surrender him or it to the person injured or make reparation in damages. In course of time the surrender came to be regarded as a means of avoiding the primary obligation of making reparation. But comparative jurisprudence recognizes in the enactment of the Tables a modified survival of the ancient right of an injured party to have the delinquent corpus, man, beast, or thing, given up to him to wreak his revenge upon it privately, the modification con- sisting in the alternative of reparation offered to the owner. This noxal surrender, failing reparation, had gone out of use in the case of daughters in potestate before the time of Gaius, and in the case of sous before that of Justinian ; but the law remained unchanged so far as slaves and domestic animals were concerned even in that emperor's legislation. Guardianship and the Introduction of the Order of Agnates. Gent So long as Rome was patrician the gens charged itself guan with the guardianship of a clansman's orphaned pupil ian8 ^ children and his widow and unmarried daughters above pupilarity after his decease (tutela), as well as with that of male members of his family who were sui juris, but above the age of pupilarity, when they chanced to be lunatic, im- becile, prodigal, or helplessly infirm (cura, curatio, curatela). That was on the supposition, as regarded children, widow, and unmarried daughters above pupilarity, that no testa- mentary appointment of tutors by their deceased parent had displaced the gens, though whether testamentary nomi- nations were then held competent it is impossible to say. The gens in council, in all probability, appointed one of its members to act as tutor or curator as the case might be, itself prescribed his duties, and itself called him to ac- count for any failure in his administration. But, as this gentile tutory could not be extended to the plebeians, among whom some law of guardianship was as much required as among their fellow-citizens of the higher order, the decemvirs found it expedient to devise a new one of universal application. The Tables contained no express authority for testamentary nomination of tutors to the widow of the testator, or to his pupil children and grown-up unmarried daughters ; but such appointment, if unknown previously, was soon held to be justified by a liberal interpretation of the very inclusive provision, " uti legassit suae rei, ita jus esto." In the absence of testa- mentary appointment the nearest male agnates of lawful age were to be tutors. This tutory of agnates was an in- vention of the decemvirs, just as was the agnates' right of succession on intestacy. The plebeians had no gentes, at least until a much later period ; so, to make the law equal for all, it was necessary to introduce a new order of heirs and tutors. "Tutores ... ex lege XII. Tabularum in-Gu troducuntur . . . agnati" is the very notable language iau of Ulpian. And his words are very similar in speaking ' of their right of succession ; for, while he says of testament- ary inheritances no more than that they were confirmed by the XII. Tables, he explains that the legitimae hereditates of agnates and patrons were derived from them. 1 The 1 Ulp., Frag., xxvii. 5, "legitimae hereditatis jus ... ex lege Duodecim Tabularum descendit." This derivation of agnatic inherit-