BOOK II. a § 54. Ibid. prohibet alii nubere invito patrono; item Iulia de adulteriis, nisi certo modo divortium factum sit, pro infecto habet.-D. 38, 11, 1. un. § 1.' The consensus of the paterfamilias was requisite for the conclusion of the marriage; he could also at his own discretion dissolve the marriage of the filiusfamilias, but according to the later Law the consent of the latter was needed;" on the other hand, the approval of the paterfamilias was not necessary for the dissolution of the marriage, at least according to ante-Justinian Law. Imp. Dioclet. Dissentientis patris, qui initio consensit matrimonio cum marito concordante uxore filiafamilias, ratam non haberi voluntatem D. Marcus pater noster religiosissimus imperator constituit, nisi magna et iusta causa interveniente hoc pater fecerit.-Invitam autem ad maritum redire nulla iuris praecepit constitutio.—C. 5, 17, 5. Marriage continued in the Law of Justinian to be dissolved by informal private divorce, without any judicial or ecclesiastical concurrence being required; but legislation from the time of Constantine was directed to the restraint of capricious divorce by the imposition of heavy proprietary penalties for divorces that were frivo 1 If indeed a divorce have followed, but the marriage by Law continue, this succession does not obtain. But the following case belongs to this category: a freedwoman divorces herself from her patron against his will; the l. Iulia de marit. ordin. keeps her back in the marriage, whilst it forbids her marrying another against the will of the patron; likewise the l. Iulia de adult. holds a divorce as null unless it be effected in a certain manner. 2 Our late father Marcus, a most pious emperor, directed that if a daughter under paternal power live in harmony with her husband, the desire of her father as opposed, who at first agreed to the marriage, shall be held of no effect, unless he have acted from a weighty and just cause.-But that a wife return to her husband against her will, no constitution of the Law has enjoined. lous or unjustifiable, as well as by the creation of certain grounds of divorce which alone exclude those penalties. BOOK II. Part I. No restraint was in the earlier period placed upon a SECOND marriage; only the widow, who married a Ulp. xiv. within the year of mourning (the Romulean of ten months) after the death of her husband, as well as the paterfamilias of such widow, her husband and his paterfamilias, became liable to the punishment of infamy. Instead of the duty of mourning, regard ' § 57. for the avoidance of uncertainty as to children e Turbatio gradually acquired recognition as a ground of the prohibition of second marriage, whereby such prohibition had to extend also to the marriage dissolved by divorce; the delay was later on extended from ten to twelve months.-Legislation of the Christian emperors, nevertheless, restricted the second marriage of each of the pair, by annexing to it important proprietary advantages in the interest of existing children of the former marriage. Paul. Uxores viri lugere non compelluntur.- Ulp. Etsi talis sit maritus, quem more Husbands are not obliged to mourn for their wives. 2 Even if he should be such a husband as by the custom of our ancestors ought not to be mourned for, she cannot be married within the statutory period; for the praetor has referred to the time during which the husband would be mourned for who by custom is mourned for, by reason of the confusion of blood. § Pomp. is of opinion that the woman who has given birth to issue within the statutory period can immediately be married; and this I think correct. sanguinis'; 'ne quis de prole dubitet.' BOOK II. Part I. "For the mat. familias over his wife." fam. see Cic. Top. 3, 14. MANUS § 48. NATURE OF MANUS; ITS SUBJECT-MATTER. 'Manus' is the control of the husband as paterIt was originally the attribute of every 'iustum matrimonium,' and the act of contracting a marriage was at the same time an act to establish manus; later on it became an independent and unessential addition to Marriage, which had to be created by a special act of Law. With this severance from Marriage, manus was at the same time applicable and in use in artificial extension also outside of it, so that a woman, even not matrimonii causa' but for other objects, could for the time being place herself in the manus of a third party. It was in the latter form that manus lasted longest throughout the period of the Classical Law, whilst in the first form it appears as an isolated exception already at the beginning of the imperial times. The legal signification of manus is as follows. (1) The wife leaves her family for that of the husband (or the third person); to him she stands in the relation of a daughter in domestic subjection, so that in relation to the husband she is quasi filia familias,'' filiae loco' (or in relation to his paterfamilias, 'neptis loco'), and in relation to the children under his potestas, she is sororis loco;' but she retains freedom of divorce. Gai. i. 1156-si omnino qualibet ex causa uxor in manu viri sit, placuit eam filiae iura nancisci,1 Ibid. i. § 136:-(mulieres, quae in manum conveiunt) potestate parentis liberantur; nec interest, an in viri sui manu sint an extranei, quamvis If in any case, for whatever reason, a woman is in the manus of her husband, it has been decided that she acquires the rights of a daughter. hae solae loco filiarum habeantur, quae in viri manu sunt.' Gell. xviii. 6, § 9: -matremfamilias appellatam esse solam, quae in mariti manu mancipioque aut in eius, in cuius maritus, manu mancipioque esset, quoniam non in matrimonium tantum, sed in familiam quoque mariti et in sui heredis locum venisset." BOOK II. Gai. i. § 137 Sed filia quidem nulla modo patrem potest cogere," etiamsi adoptiva sit; haecba Sc. ut emanciautem virum repudio misso proinde compellere potest, atque si ei numquam nupta fuisset." petur. sc. quae in manu est. (2) The whole of her property falls by universal succession to the husband; likewise all her future § 77. acquisitions; the husband is responsible for the contractual debts she has brought to him to the extent of the property that has devolved upon him. Cic. Top. 4, 23: Cum mulier viro in manum convenit, omnia quae mulieris fuerunt, viri fiunt dotis nomine.* Gai. iii. §§ 83-84: Cum paterfamilias se in adoptionem dedit mulierve in manum convenit, omnes eius res incorporales et corporales quaeque 1 (women who fall into manus) are freed from their parents' potestas, and it does not matter whether they are in the manus of their own husband, or of a stranger; although such only are accounted in the position of daughters as are in the manus of a husband. 2 That she alone was called mat. fam. who was in the manus and mancipium of her husband, or in that of him in whose manus and mancipium her husband was; since she had entered not merely into wedlock, but into the familia also of her husband, and into the place of a suus heres.a d See § 162. 3 But a daughter, even though she be one adopted, can in no way compel her father (i.e., to emancipate her), the other (i.e., who is in manus), however, who has had a letter of divorce sent to her, can compel her husband, just as if she had never l.e., to release been married to him. 4 When a woman enters into manus to a husband, all things that have belonged to the woman become property of the husband under the name of dos. her from manus. R BOOK II. a Sce § 49. ei debitae sunt, patri adoptivo coemptionatorive adquiruntur, exceptis his quae per capitis deminutionem peruut.-Ex diverso quod is debuit, qui se in adoptionem dedit quaeque in manum convenit, non transit ad coemptionatorem aut ad patrem adoptivum nisi si hereditarium aes alienum fuerit: tunc enim, quia ipse pater adoptivus aut coemptionator heres fit, directo tenetur iure; is vero qui se adoptandum dedit quaeve in manum convenit, desinit esse heres.1 Ibid. ii. § 90: Per eas vero personas quas in manu mancipiove habemus, proprietas adquiritur nobis ex omnibus causis, sicut per eos, qui in potestate nostra sunt.2 Ibid. iv. § 80: Quod vero ad eas personas quae in manu mancipiove sunt, ita ius dicitur, ut cum ex contractu earum agatur, nisi ab eo, cuius iuri subiectae sint, in solidum defendantur, bona quae earum futura forent, si eius iuri subiectae non essent, veneant.3 Ibid. iii. § 104: Servus et qui in mancipio est 1 When the pat. fam. has given himself in adoption, or a woman has entered into manus, all their property, incorporeal and corporeal, and all that has been owing to them, is acquired by the adopting father or by the purchaser through coemption," save such things as perish by the loss of caput.—On the other hand, a debt owing by one who has given himself in adoption, or by her who enters into manus, does not pass to the coemptionator, or to the adopting father, unless it were a debt of the inheritance; for in that case, as the adopting father himself or the coemptionator becomes heir, he is directly liable; but he who has given himself in adoption, or she who has entered into manus, ceases to be heir. 2 Through such persons as we hold in manus or mancipium property is acquired for us upon any title, just as through those who are under our potestas. 3 But as regards those persons who are in manus or mancipium, the law is stated thus: that when proceedings are taken upon their contract, unless they are defended to the full amount by him to whose authority they are subject, all the property which would have been theirs, if they had not been subject to his authority, will be sold. |