guarded against by the rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his child, maternal as well as paternal. Even the incapacity of the children of the family to acquire property of their own cannot in those times have been regarded as any serious hardship; for, though the legal title to all their acquisitions was in the house-father during his life, yet in truth they were acquired for and belonged to the family as a whole, and he was little more than a trustee to hold and administer them for the common benefit.
The patria potestas, unless the paterfamilias voluntarily put an end to it, lasted as long as he lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potestate. On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born fell under that of their paternal grandfather; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights that he had over his sons and unmarried daughters. But there was this difference, that, when the pater-familias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potestas of their grandfather into that of their father.
The acquisition of domestic independence by the death of the family head frequently involved the substitution of the Guardianship of tutors. guardianship of tutors (tutela) for the potestas that had come to an end. This was so invariably in the case of females sui juris, no matter what their age: they remained under guardianship until they had passed by marriage in manum mariti. It was only during pupillarity, however, that males required tutors, and their office came to an end when puberty was attained. It is improbable that during the regal period a testamentary appointment of tutors by a husband or parent to wife or children was known in practice. In the absence of it the office devolved upon the gens to which the deceased paterfamilias belonged.
Family Organization among the Plebeians.—If perfect identity of customs cannot be assumed to have existed amongst the Plebeian family. patrician gentes in the regal period of Rome, far less can it be supposed to have existed amongst the heterogeneous population (Latins, Etruscans, Greeks, &c.) of which the plebs was constituted. Nevertheless, contiguity of residence and community of interests tend inevitably to unify customs and cause dissimilarities to disappear, and the plebeians must have not only gradually brought their own customs into unison inter se, but adapted them at the same time in many respects to those of the patricians. Even to those of non-Latin race manus over their wives and potestas over their children would become a desideratum. Though the plebeians seem to have been always excluded from confarreation, and their matrimonial unions must have been at first informal and irregular from the point of view of the Quirites, two civil modes of acquiring marital manus were available to them after they obtained citizenship, viz. coemptio and usus. Some writers hold that neither of these modes was legally recognized prior to the XII. Tables.[1] This may be so, but it is improbable. As the plebeians obtained by the Servian constitution full capacity for quiritarian ownership, it was at once open to them to adapt the modes sanctioned for acquiring property to the acquisition of marital manus. Coemptio was just a simple adaptation of emancipation above referred to (see also infra, p. 540). It was, as we may infer from what we know of it at a later time, a sale of the woman to the man per aes et libram for a nominal price. The price being fictitious, a piece of copper (raudusculum) was used to represent it, and this was handed over to the seller, who would ordinarily be the woman's paterfamilias, or, if she were sui juris, her gentile tutor. The nuncupatory words used in the ceremony have unfortunately not been preserved; necessarily, of course, they varied from those of an ordinary emancipation of property.[2] Though called by the jurists a mode of constituting marriage, coemptio, as we know it, was strictly a mode of creating manus; for, though usually contemporaneous with, it might, as Gaius informs us, follow the marriage at any distance of time, and was not dissolved by divorce, but required a separate act of remancipation. Students of comparative law have observed that in coemptio there are clear traces of earlier bride purchase, so common even nowadays among uncivilized tribes, where a real price in cattle or sheep, and not a mere nominal one, has to be paid for the bride. Usus, on the other hand, was a mode of acquiring marital manus by possession of the woman as wife for a certain period of time—long cohabitation.[3] Whether this was recognized by the law prior to the XII. Tables depends probably upon whether usucaption, as a mode of acquiring property, was settled by custom earlier than the Tables. Some writers, however, think it older than coemptio, and as a de facto relation prolonged cohabitation as man and wife must have existed from very early times. Comparative historians with good reason trace in usus the relics of primitive bride capture. Both coemption and usus, from the time they were first recognized by the jus Quiritium, undoubtedly created patria potestas and agnatic rights.
Law of Property.[4]—The history of the early Roman community, like many other primitive communities, is marked by Property in land.—Patricians. the disintegration of the gentes and the growth of individual property. Yet the distribution of land amongst the early Romans is one of the puzzling problems of their history. The Servian constitution apparently classified the citizens and determined their privileges, duties and burdens according to the extent of their lands; and yet we know nothing for certain of the way in which these were acquired. All is conjectural. We have indeed a traditional account of a partition by Romulus of the little territory of his original settlement into three parts, one of which was devoted to the maintenance of the state and its institutions, civil and religious, the second (ager publicus) to the use of the citizens and profit of the state, and the third (ager privatus) subdivided among his followers. Varro and Pliny relate that to each paterfamilias among his followers he assigned a homestead (heredium) of two jugera, equal to about an acre and a quarter. These heredia were to be held by him and his heirs for ever (quae heredem sequerentur); Pliny adding that to none did the king give more. This can only be accepted as a partially correct account of what may have taken place at some early period during the kingly régime. There can be little doubt that a portion of the Roman territory, gradually augmented through new conquests, was early reserved by the state as ager publicus; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians. It is also probable that heredia (i.e. plots of land within the city) may have been granted to the heads of the gentile families, many of whom would be living in pagi on their respective gentile lands outside the city. Such heredia became family property, administered as such by the paterfamilias, but inalienable by him. In this respect the position would be very similar to what existed among the ancient Germans and exists to-day in India among the Hindus. Even late in the Republic, when the idea of
- ↑ See as to coemptio, Cuq, Institutions juridiques, 2nd ed., i. p. 62.
- ↑ One or two writers of the later Empire (e.g. Servius, in Georg. i. 31) describe coemptio as a mutual purchase, the man and woman taking alternately the position of emptor and using nuncupatory words as such; but this seems to be a misapprehension and not consistent with what Gaius says. See the ar uments in favour of it in Muirhead, Historical Introduction, 2nd ed. pp. 414-415. Girard, Manuel, 4th ed. p. 150, gives a probable explanation of the mistake of these late authors.
- ↑ It would thus cure defects in a coemption just as usucaption did defects in mancipation.
- ↑ See Giraud, Recherches sur le droit de propriété chez les Romains (Aix, 1838); Macé, Histoire de la propriété &c., chez les Romains (Paris, 1851); Hildebrand, De antiquissimae agri Romani distributionis fide (Jena, 1862); Cuq, Instit. jurid., 2nd ed., vol. i. pp. 72 seq.; Beaudouin, La Limitation des fonds de terre (1894), pp. 259 seq.
