Page:Harvard Law Review Volume 8.djvu/61

WOMAN IN EARLY ROMAN LAW. 45 undisturbed possession thereof for one year. The Twelve Tables, however, raised the wife so far above the chattel as to permit her, by absence from her husband's house for three consecutive nights each year, to defeat the usus} and thus paved the way for the sub- sequent, gradual, yet steady amelioration of woman's place in law. Yet it is almost incredible that, among a people who used the highest form of marriage known to antiquity, there should also arise a form of union fit only for barbarians of the lowest type. Stranger still, within the lowest form were the germs of a better and brighter future for woman. The immediate results, however, of the higher forms of marriage were the same as those of the lower one of ownership by prescription. This anomaly of a high conception of the sacredness of the marriage tie, as illustrated by the Confarreatio ceremony, joined to such a low conception of the wife's legal rights, to which conception was due the two lower forms of marriage, can be explained only by those peculiar reli- gious beliefs of the primitive Italians to which we have so often adverted. For had the husband's superior physical strength, as is often urged, and not his religious supremacy, been the cause of this unlimited control over the wife's person, the latter would have been looked upon simply as a slave to be used merely for the gratification of the master's pleasures. Far otherwise, however, was the Roman wife. She was the means by which the religion was to be kept alive; and, as we shall hereafter see, her social position was far better and happier than her legal rights, or her want of legal rights, would lead us to expect. Upon marriage, the wife, as we have intimated, was entirely freed from her father's control. But she merely exchanged one master for another. She passed into her husband's manus or, if he were in potestate, under the same control as he himself was. She was as incapable of performing a legal act as an inanimate object, with the single exception that, upon her husband's death, she inherited his estate equally with her children. But this advantage was offset by the fact that she was incapable of inheriting anything from her father. Indeed she was no longer regarded as a relative of her blood father; but was considered as much a member of her husband's family as if she had been born in it. All her own property, which, at this early date, was doubtless very little, vested absolutely in her husband, and upon the dissolution of the mar- 1 Table VI.