The Roman family is purely patriarchal; if there ever was a time when the more primitive matrilinear system prevailed among any part of the population it has left no traces in the legal system, and Roman law is indeed characterised by the exceptionally great power which it allows to the father as head of the family. Originally, no doubt, this power was a general, rather vaguely conceived, supremacy, but by the time of the XII Tables it has crystallised and become differentiated, so that its name varies according to the persons over whom it is exercised. Over the wife and the sons' wives it is manus, over the children and slaves potestas, patria potestas in the former, dominica potestas in the latter case, while the bondsmen are said to be in mancipio.
- Marriage
The normal marriage at this period is accompanied by manus, i.e. the woman passes out of her father's family and comes under the despotic rule of her husband. It appears, however, that already by the time of the XII Tables this was not necessarily the case. Apart from the question of manus, marriage was to the Romans, as to the other peoples of antiquity, a de facto rather than a de jure matter, in the sense that two people were held to be married, not because they had gone though any particular ceremony, but because they in fact lived together as man and wife. This state of affairs begins ordinarily with the bringing of the bride to the house of the bridegroom (domum deductio), but no special legal significance attaches to this proceeding, except in so far as it is in fact the beginning of conjugal life. As we shall see, however, manus would in early times normally result in such conjugal life were continued for a period, and thus it may properly be said that marriage with manus was the rule at the time of the XII Tables. Manus may arise in any one of three ways, by confarreatio, coemtio, or usus.
Confarreatio was a religious ceremony in which the essential point was the transfer of the woman from the domestic cult of her father's family to that of her husband's. It was almost certainly confined to patricians. Gaius says that the name comes from the use of a cake of spelt (far) in the sacrifice made to Jupiter Farreus, that there must be ten witnesses and that certain solemn words had to be spoken. From another source we know that the pontifex maximus and the flamen Dialis (priest of Jupiter) were also present. In Gaius' time it was still necessary that the rex sacrorum and the greater priests should be born of confarreate marriages and themselves be married in this way.
Coemtio, as opposed to confarreatio, is a secular form of marriage and is open to plebeians; the husband acquires manus over the wife by mancipation, i.e. by the formal act of purchase with the scales and copper in the presence of five citizen witnesses of full age, in the same way as a man acquires ownership over certain kinds of property, but the words used differ from those of an ordinary mancipation.
There are two main views as to the original nature of this institution: Some scholars hold that it never was a real purchase but only came into existence after mancipation had become a "fictitious sale", and was introduced by the plebeians in order that they might acquire rights over their wives similar to those which confarreatio gave the patricians. According to this view the marriages of plebeians had hitherto been unrecognised by the civil law and the object for which the plebeians introduced coemptio was to obtain such recognition, and thus counter the patrician argument that persons born of unrecognised unions were not fit for the high offices of state. In support of this view it is urged that coemptio is too purely secular an institution to belong to the earliest stratum of Roman law. The second view is that coemptio is simply the Roman form of the widely spread institution of marriage by purchase, and that originally some real consideration was given to her father or guardian in exchange for the bride, or more probably, as the analogy of Germanic law suggests, for the power (manus) over her. It is true that in historical times the bride regularly appears as a party to the transaction herself –it is she who "makes the coemptio", i.e. "sells" herself –but this is presumably a later development–. On the face of it, this second view seems preferable; marriage by purchase is so common among other races that it would be almost surprising if the Romans had not known it, and, above all, the hypothesis of a deliberate introduction of a new form of marriage for a political purpose is contrary to all that we know of primitive legal conservatism; there is no branch of the law in which deliberate innovation is less likely to take place than in that of the family.
+ Usus
Gaius says that if a woman "remained married" (nupta perseverabat –it is important to notice the words–) to a man for an unbroken year she came under his manus and that it was provided by the XII Tables that if she did not wish this to happen, she could prevent manus from arising by absenting herself for three nights in each year. This, then, was a third method of contracting marriage with manus –uninterrupted cohabitation as man and wife for a year–. The details and history of the institution present considerable difficulty, and we can again say that the views of scholars fall into two main groups:
. According to the first opinion usus was not originally a separate form of contracting marriage at all, but arose simply from the principle that any defect in either of the other forms would be cured provided that the de facto relationship of man and wife continued for a certain time. Confarreatio and coemptio were both complicated ceremonies in which a slip might easily occur; such a slip would invalidate the ceremony, but if the parties lived together for a year the defect would be cured and the manus which the ceremony had been intended to create would arise, just an in an ordinary mancipation of property, if there were a slip in the ritual, ownership would not pass at once, but would arise after a year (in the case of movables) by usucapion if the transferee remained in possession for that period. Now between a defective ceremony and no ceremony at all it is impossible to draw any hard and fast line, so that, as a further step, it perhaps became the rule that if two people lived together with the intention of being married they would, even without any ceremony at all, become married with manus after the end of a year. Once this was recognised there had come into existence a new and informal method of contracting marriage with manus. But what was the position before the year was out? It is clear that manus did not arise, but was not the woman considered to be already married nevertheless? Gaius, it must be remembered, speaks of her "remaining married" (not merely cohabiting) for a year before manus arises, so that it is clear that he at least considered that she was already married before the year was up. If we suppose that he is correctly reproducing the law as it stood at the time of the XII Tables, then we have here the beginnings of marriage without manus such as became common in the later republic. Presumably the position of the woman who availed herself of the rule about the three nights' absence was similar; Gaius speaks as if this prevented her from falling under manus but did not affect the existence of the marriage. Indeed, as Karlowa points out, the provision in the XII Tables was probably intended to have precisely this effect, i.e. that by the mere formality of absenting herself the wife could prevent manus, although she had every intention of returning. No doubt previously wives had often been away from their husbands for longer periods than three nights, but if they intended to return, this was no interruption of the time of prescription; the novelty was that an absence which did not affect the existence of the marriage should interrupt the prescription and save the woman from falling into manus.
. The other main view is that usus was already in its origin a separate method of contracting marriage, a kind of marriage on approval, comparable to the "handfast" marriages found at one time in the north of England and in Scotland, which became permanent if the woman bore a child or became pregnant within a year and a day, but might be dissolved if she did not. It is also suggested that usus may be connected with marriage by capture, the idea being that if the union lasted for a year the father lost his right to the woman. There is, to a modern mind, the apparent difficulty about this second view, that there would be no clear line between marriage and concubinage, and that a man's concubine might become his wife without his desire, if the cohabitation lasted for a year. But this objection would not have the same force to a Roman who was used to regarding marriage as a de facto relationship distinguishable from concubinage, not by legal ceremonies, but by the attendant circumstances, such as preceding betrothal and the customary festivities. There would be no more difficulty in early times than there was under the later system, when free marriage had become the rule, in ascertaining the intentions of the parties, and of course only where marriage was intended would usus operate to produce manus.
+ Divorce
Whether confarreate marriage was dissoluble at all in the earliest times is a matter of doubt. In historical times, the marriage of the flamen Dialis alone was indissoluble, while for other cases a reverse ceremony with the cake of spelt, called diffarreatio, was available. It may well be that this ceremony was a comparatively late invention of priestly jurists, and that originally no divorce at all was possible in this sacred form of marriage.
For the purposes of the other types of marriage with manus, it is as well to distinguish, even in this early period, between the ending of the manus and the ending of the marriage itself, though the two, no doubt, would almost always terminate together. The marriage itself, being a de facto relationship, would terminate by the actual breach of conjugal life –the parting between husband and wife in such a manner that they did not intend to come together again–. So long, of course, as manus exists, such a parting is only possible at the instance of the husband, because the manus gives him control over the wife. She cannot go unless he sends her away, and for this sending away there appear to have been traditional formulae, mentioned even in the XII Tables, though it can hardly be that the use of these formulae was ever legally necessary. The manus, on the other hand, could only be broken by a legal act, a re-mancipation of the wife to her father, or to some other person who could then set her free, with the result that she became sui iuris. In the comparatively rare cases where there was no manus, such re-mancipation would, of course, be un-necessary. The Roman husband was, however, not able to use his powers of divorce lightly. Custom required that, before sending his wife away, he should summon a family council on which the wife's relatives must be represented, and a good cause for his action shown. The reasons which would justify divorce are said to have been adultery, wine drinking, tampering with keys and witchcraft. Divorce on insufficient grounds might involve punishment by the censors or possibly something more severe in very early times, but it would be contrary to the whole trend of Roman thought to suppose that it would be invalid.
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- The law of the family and of succession at the time of the XII Tables
+ Patria potestas
+ Guardianship
+ The agnatic family
+ Intestate succession
+ Testamentary succession
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 112 - 118.
