Page:Harvard Law Review Volume 8.djvu/63

WOMAN IN EARLY ROMAN LAW. 47 was nothing more than a resale of the wife to her father, or some other male relative. But it is in the form of dissolving the marriage by usus that we find the real origin of the peculiar Roman laxity in regard to divorce. Here all that was necessary was simply an expression of a desire or command by the husband that the wife should no longer dwell in his house. At the time of which we are now speaking in the dissolution of the usus marriage, as well as in the dissolution of the two higher forms of union, it is obvious that the wife was utterly powerless to make any resistance to a divorce pronounced by her husband, or on her side to repudiate him.^ The theory of manus or marital power of the husband precluded all such privilege on the wife's part. For many centuries, however, the Romans seldom or never took advantage of the unjust privilege thus permitted them by law ; perhaps because the woman was so completely under subjection that no excuse was ever offered for its exercise. As a proof of the statement that divorces very unfre- quently, if ever, occurred, the old tradition that Spurius Carrilius Ruga, in the year 523 a. u. c, was the first Roman to divorce his wife, is confidently offered. For even if this story be an exaggeration, or even an untruth, the fact that it was believed by the writers of a few generations after Ruga shows that divorce must have been seldom resorted to in the early days of the repub- lic. A further proof is the unpopularity which Ruga is said to have acquired by his act. The exercise of an undoubted legal right does not often render a man unpopular, unless by such exer- cise he unfortunately happen to oppose some popular prejudice. Had it been aught else but an innovation, and one, too, condemned by the public conscience, excuses would surely have been offered for the exercise of a power which later became so congenial to the Romans, who afterwards showed astonishing leniency in judging subsequent Rugas. We must now retrace our steps and renew our acquaintance with the Roman maiden, who, in striking contrast to her unmarried English and American sisters, was subject to the same disabilities as the wife. Upon the death of the father a great change occurred in the respective conditions of son and daughter. During the life of the parent, the son's rights were merely in abeyance. Upon the death ^ " When a man makes a divorce, he, not the censor, is the woman's judge." Cato, Fragment " De dote," Jordan's edition, p, 68.