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DE MANV. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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§ 108.Nunc de his personis uideamus quae in manu nostra sunt. quod | et ipsum ius proprium ciuium Romanorum est.
§ 109. Sed in potestate quidem et masculi et feminae esse solent; in manum autem feminae tantum conueniunt.
§ 110. Olim itaque tribus modis in manum conueniebant, usu farreo coemptione.
§ 111. Usu in manum conueniebat quae anno continuo nupta perseuerabat; quia enim ueluti annua possessione usucapiebatur, in familiam uiri transibat filiaeque locum optinebat. itaque lege xii tabularum cautum est, ut si qua nollet eo modo in manum mariti conuenire, ea quotannis trinoctio abesset atque eo modo 〈usum〉 cuiusque anni interrumperet. sed hoc totum ius partim legibus sublatum est, partim ipsa desuetudine oblitteratum est.
§ 112. Farreo in manum conueniunt per quoddam genus sacrificii, quod Ioui Farreo fit; in quo farreus panis adhibetur, unde etiam confarreatio dicitur; conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus uerbis praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est; nam flamines maiores, id est Diales Martiales Quirinales, item reges sacrorum nisi ex farreatis nati non leguntur; ac ne ipsi quidem sine confarreatione sacerdotium habere possunt.
§ 113. Coemptione uero in manum conueniunt per mancipationem, id est per quandam imaginariam uenditionem; nam adhibitis non minus quam v testibus ciuibus Romanis puberibus, item libripende, emit is mulierem, cuius in manum conuenit.
§ 114. Potest autem coemptionem facere mulier non solum cum marito suo, sed etiam cum extraneo; scilicet aut matrimonii causa facta coemptio dicitur aut fiduciae; quae enim cum marito suo facit coemptionem, 〈ut〉 apud eum filiae loco sit, dicitur matrimonii causa fecisse coemptionem; quae uero alterius rei causa facit coemptionem aut cum uiro suo aut cum extraneo, ueluti tutelae euitandae causa, dicitur fiduciae causa fecisse coemptionem:
§ 115. quod est tale: si qua uelit quos habet tutores deponere et alium nancisci, illis auctoribus coemptionem facit; deinde a coemptionatore remancipata ei cui ipsa uelit, et ab eo uindicta manumissa incipit eum habere tutorem, 〈a〉 quo manumissa est; qui tutor fiduciarius dicitur, sicut inferius apparebit.
§ 115 a. Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio; tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuissent: sed hanc necessitatem coemptionis faciendae ex auctoritate diui Ha|driani senatus remisit.
§ 115 b. —|NA femina—fi|duciae causa cum uiro suo fecerit coemptionem, nihilo minus filiae loco incipit esse; nam si omnino qualibet ex causa uxor in manu uiri sit, placuit eam filiae iura nancisci.
§ 108. Let us next proceed to consider what persons are subject to the hand, which also relates to law quite peculiar to Roman citizens.
§ 109. Power is a right over males as well as females: hand relates exclusively to females.
§ 110. In former days there were three modes of becoming subject to hand, use, confarreation, coemption.
§ 111. Use invested the husband with right of hand after a whole year of unbroken cohabitation. Such annual possession operated a kind of usucapion, and brought the wife into the family of the husband, where it gave her the status of a daughter. Accordingly, the law of the Twelve Tables provided that a wife who wished to avoid subjection to the hand of the husband should annually absent herself three nights from his roof to bar the annual usucapion: but the whole of this law has been either partly abolished by statute, or partly obliterated by mere disuse.
§ 112. Confarreation, another mode in which subjection to hand originates, is a sacrifice offered to Jupiter Farreus, in which they use a cake of spelt, whence the ceremony derives its name, and various other acts and things are done and made in the solemnization of this disposition with a traditional form of words, in the presence of ten witnesses: and this law is still in use, for the functions of the greater flamens, that is, the flamens of Jove, of Mars, of Quirinus, and the duties of the ritual king, can only be performed by persons born in marriage solemnized by confarreation. Nor can such persons themselves hold a priestly office if they are not married by confarreation.
§ 113. In coemption the right of hand over a woman attaches to a person to whom she is conveyed by a mancipation or imaginary sale: for the man purchases the woman who comes into his power in the presence of at least five witnesses, citizens of Rome above the age of puberty, besides a balance holder.
§ 114. By coemption a woman may convey herself either to a husband or to a stranger, that is to say there are two forms of coemption, matrimonial and fiduciary. A coemption with a husband in order to acquire the status of daughter in his house is a matrimonial coemption: a coemption for another purpose, whether with a husband or with a stranger, for instance, for avoiding a guardianship, is a fiduciary coemption.
§ 115. This is accomplished by the following process: the woman who desires to set aside her present guardians and substitute another makes a coemption of herself to some one with their sanction: thereupon the party to this coemption remancipates her to the person intended to be substituted as guardian, and this person manumits her by the form of vindicta, and in virtue of this manumission becomes her guardian, being called a fiduciary guardian, as will hereafter be explained.
§ 115 a. In former times testamentary capacity was acquired by fiduciary coemption, for no woman was competent to dispose of her property by will, with the exception of certain persons, unless she had made a coemption, and had been remancipated and then manumitted: but this necessity of coemption was abolished by a senatusconsult made on the motion of Hadrian, of divine memory.
§ 115 b. Even if a woman makes only a fiduciary coemption with her husband, she acquires the status of his daughter, for it is held that from whatever cause a woman is in the hand of her husband, she acquires the position of his daughter.
In early Roman law a woman on marriage necessarily passed out of her own agnatic family into that of her husband, taking the place of a filiafamilias in it. If her husband was paterfamilias, she came into his hand, if he was filiusfamilias into that of his father. This power (manus) was the same in its nature as patria potestas. By manus the husband, or the husband’s father, had power of life and death over the wife, Livy, 39, 18; Tac. Ann. 13, 32; and all the property of the wife, even more absolutely than by the common law of English jurisprudence, vested in the husband or his paterfamilias, 2 § 98.
The patriarchs of the Roman nation could probably not conceive of the conjugal union as disjoined from manus. Yet at a very early period of Roman history these were recognized as separable, and in later times they were almost universally dissociated, and wedlock was unaccompanied by manus. In a marriage celebrated without confarreation and without coemption before the expiration of the first year of cohabitation, there was civil wedlock without manus, and the Twelve Tables provided a method (trinoctio abesse) by which this state could be indefinitely prolonged, § 111: and as soon as gentile marriages were recognized by the law the Romans were still more familiarized with the spectacle of lawful matrimony without manus. As the ages advanced the wife acquired more and more independence; manus was almost obsolete in the time of Gaius, and it has quite vanished from the legislation of Justinian. (For a detailed account of the law of marriage see Sohm, pp. 470-498.)
Confarreation was a form of marriage which made the issue eligible for certain high sacerdotal functions, and may therefore be regarded as characteristic of the patrician caste. Originally it probably produced marital power in its full extent; but when Augustus, b. c. 10, after a vacancy of seventy-five years, renewed the priesthood of Jove (flaminium diale) he limited by statute the legal effect of confarreation in that particular instance, § 136; and Tiberius, a.d. 23, extended the limitation to all future cases of confarreation, Tac. Ann. 4, 16. Henceforth it only operated a change of family in respect of sacred rites (sacra): the woman ceased to have the domestic gods and domestic worship of her father, and took in exchange the domestic gods and domestic worship of her husband. But in secular matters her family was unchanged: she remained, if filiafamilias, subject to patria potestas, and did not become quasi filiafamilias in the household of her husband: her old ties of agnation in her father’s family were not snapped, and no new ties of agnation in her husband’s family were acquired. Divorce (diffarreatio, Festus, s.v.) was almost impossible, and this indissolubility of the connexion contributed to the unpopularity of confarreatio. Moreover, it was a religious ceremonial, requiring the presence of the pontifex maximus and flamen dialis, and as such it vanished with vanishing paganism. The ten witnesses apparently represented the ten curiae of which the tribe was composed, or the ten gentes of which the curia was composed, or, if the decimal division continued further, the ten families of which the gens was composed.
The purchase of the wife by the husband, a widespread custom in a primitive state of society, was no doubt one of the ways in which Roman marriage originated. The exact nature of Coemption, in consequence of the defective state of the Veronese manuscript, must, however, remain a mystery. Coemption was a form of mancipation, § 113, but in virtue of the provision of the Twelve Tables, Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, the nature of every mancipation depended on the mancipii lex, the accompanying nuncupation or verbal declaration of its condition, intentions, purposes; as in English conveyancing the nature of a grant is limited and determined by the habendum and tenendum of the deed. We are informed that in coemption, the formula was not the same as in other mancipations, § 123, but we are not informed what it was. Even in Cicero’s time many advocates were ignorant of the legal effect of a coemption because they were ignorant of the precise terms of the formula in which it was concluded, De Orat. 1, 56. The word itself may suggest a conjecture that it was a conveyance of the husband to the wife as well as of the wife to the husband; and this is supported by Servius on Georgics, 1, 34, and Isidorus, 5, 24, no great authorities, but who quoted apparently from Ulpian: ‘An ancient nuptial form wherein husband and wife made a mutual purchase, to bar the inference that the wife became a slave.’ Plutarch informs us that the wife asserted her equality by the terms, Ubi tu Caius, ego Caia, Quaest. Rom. 28: ‘Where thou art master, I am mistress.’ Boethius on Cicero, Topica, 3, 14, quoting from Ulpian, says: ‘The man and woman interrogated one another. He asked her if she wished to be mother of his household; she answered, Yes. She asked him if he wished to be father of her household; he answered, Yes. And thus the woman passed into the hand of the man, and was called the mother of his household, with the status of filiafamilias.’ According to Cicero, the wife was only called materfamilias when subject to hand: Genus est uxor; ejus duae formae; una matrumfamilias, eae sunt, quae in manum convenerunt, altera earum quae tantummodo uxores habentur, Top. 3, 14. Gellius says the same, 18, 6, 7: Tradiderunt matremfamilias appellatam esse eam solam quae in mariti manu mancipioque aut in ejus, in cujus maritus manu mancipioque esset. Boethius (in Cic. Top. 3, 14) further limits the title to a wife who has become subject to manus by coemption: Quae autem in manum per coemptionem convenerant, hae matresfamilias vocabantur, quae vero usu et farreatione, minime, ibid. However this may have been, in one sense the name was a misnomer, for a wife subject to hand was not sui juris (materfamilias), but alieni juris (filiafamilias): and that materfamilias denoted a woman sui juris, whether married or unmarried, as opposed to a filiafamilias or woman alieni juris, appears from Ulpian (4, 1): Sui juris sunt familiarum suarum principes, id est paterfamiliae itemque materfamiliae. (See Muirhead’s Roman Law, App. B.)
If the wife was subject to the power of her father, she required his sanction before she could make a coemption with her husband. If the wife was independent of parental control, she required the sanction of her guardians, who under the old law would have been her nearest agnates.
Coemption was sometimes employed for other purposes than matrimony, and was then called fiduciary coemption. Sometimes the intention was to extinguish the obligation of onerous sacred rites attached to the estate of an heiress: Jure consultorum ingenio senes ad coemptiones faciendas interimendorum sacrorum causa reperti sunt, Cic. Pro Murena, 12, § 27. ‘Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.’ Savigny (Verm. Schr. 1, 190) gives the following conjectural explanation of the process. The obligation to the sacra belonged to the Quiritary ownership of the universitas of the woman’s estate. This, by the effect of coemption, vested in the coemptionator, an old man approaching dissolution (senex coemptionalis), with whom a fictitious marriage was contracted, and who took the estate as universal successor. He forthwith dismissed the woman from his manus by remancipation and manumission: and then, according to covenant, restored to her the estate in portions; that is, released from the ritual obligations, which only attached to the universitas. On his death, as Quiritary owner of the empty universitas, the obligation to the rites was extinguished: for the succession (hereditas) to the coemptionator did not pass to the woman, as she by remancipation had ceased to be [such was the hypothesis of Savigny before the discovery of Gaius: instructed by Gaius we must rather say, as mere fiduciary coemption had not the effect of making her] his filiafamilias and sua heres. The phrase senex coemptionalis denotes a slave. From which it may be inferred that a slave, useless for any other purpose, and therefore very cheap, was sometimes bought and manumitted to serve as coemptionator. In such a case the whole transaction would be very inexpensive, if not very decorous. This mode of getting rid of sacred rites is compared by Ihering, § 58, with the institution of a slave as heir to bear the infamy of bankruptcy instead of the deceased testator, 2 § 154. Universal succession was an institution which Roman law only admitted in certain cases, 2 § 98, including the cases of Manus and Adrogatio. If universal succession was required for the purpose of extinguishing the obligation to sacred rites attaching to the estate of an heiress, we might have supposed that Adrogatio would have been a less offensive mockery than a fictitious marriage (fiduciary coemption); adrogatio, however, was inapplicable, because, as we have seen, up to a late period of Roman law women were incapable of being adrogated. Moreover, the Pontifices, who had a veto on adrogations, were not likely to lend themselves readily to the extinction of sacred rites. (Comments of other modern writers on this subject are noticed in Roby’s Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. ‘There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgement were placed by our ancestors under a guardian’s control: jurists invented a kind of guardian subject to female dictation.’ (Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a; Cic. Top. 4, 18. The coemptionator (party to the coemption) in virtue of the manus thereby acquired was able, and by a fiducia or trust was bound, to sell the woman into bondage as if she were filiafamilias: accordingly he remancipated her to a third person, who by manumitting her in accordance with another fiducia became her patron, and as patron, in accordance with the Twelve Tables, §§ 165, 166, her statutory guardian (tutor legitimus), and, as having acted under a fiducia, her fiduciary guardian, § 115. It may occur to us that as coemptio required the sanction of a father or guardian, this process could not be of much use in getting rid of a guardian or defeating the claims of agnatic guardians to a woman’s intestate succession; but it must be remembered that the nearest agnate, who alone was heir and guardian, was a variable person, and that a given nearest agnate might be not indisposed to allow a woman to acquire the free disposition of her property and to defeat the claims of those who, after his death, would be nearest agnates and presumptive heirs. At all events, however indisposed the guardian might be to such a course, a period at last arrived when the auctoritas of the guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 190.
Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and thus the woman would be free from the control of an interested guardian in the disposition of her property during her lifetime. She would still however have had little more than a life interest until she acquired the power of testation. For when wills could be only executed in the comitia, 2 § 101, she would be excluded from testation, as well as from adrogation, by exclusion from the comitia: and after the introduction of the mancipatory will she was still barred by her agnates’ indefeasible claims to her reversion. Agnation itself, however, was defeasible by means of coemptio and remancipatio and the consequent capitis minutio; and when the auctoritas of the guardian for these proceedings could be extorted, § 190, the woman had practically acquired power of testation, although its exercise was hampered by a tedious formality, which was not abolished by the emperor Claudius when he abolished agnatic guardianship. It was not till the senatusconsult of Hadrian that the rupture of the ties of agnation by means of coemptio ceased to be necessary to the validity of a woman’s will, § 115 a; 2 §§ 112, 118; though it had probably been previously a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) even before the time of Claudius. As we learn from the text coemption had not been required previously in the case of certain privileged women. Cf. §§ 145, 194; 3 § 44; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation, by which the party to whom the mancipation was made undertook to remancipate under certain conditions. Besides its use in coemption, it was employed, as we shall see presently, in emancipation and adoption, and was the earliest form of constituting the contracts of deposit and mortgage, 2 §§ 59, 60; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts were defined, must not be identified with nuncupatio. Nuncupatio forms an integral part of Mancipatio, and what was declared in it would constitute a title under the law of the Twelve Tables. Pactum fiduciae, on the other hand, never coalesces with Mancipatio, but remains a separate adjunct, originally only morally binding on the transferee, but afterwards forming an obligation of jus gentium, and affording ground to support a bonae fidei actio. Herein Mancipatio is contrasted with Tradition and the dispositions of natural law. Conventions accompanying Tradition unite with it, and form a single consolidated disposition; and the pacts annexed (pacta adjecta) to any contract of natural law (venditio, conductio, mandatum, &c.) become integral parts thereof, and are enforced by the action brought on the principal contract. Stipulatio, as a civil disposition, seems to have originally resembled Mancipation in this respect: at least it was a late period of the law when the rule was clearly established that: Pacta incontinenti facta stipulationi inesse creduntur, Dig. 12, 1, 40, i. e. Pacts made contemporaneously with a stipulation are deemed to be portions of the stipulation. Savigny, § 268. It is true that a Pactum adjectum respecting interest and annexed to the gentile disposition Mutuum could not be enforced by an action brought upon the Mutuum: but that was a consequence of the nature of the action (condictio certi) whereby Mutuum was enforced, and which could not embrace any sum beyond the original subject of the Mutuum; 3 §§ 90, 91, comm.