giving the creditors a praetorian action in which the minutio was held as rescinded, and which the new paterfamilias was bound to defend on pain of having to give up all the estate he had acquired through the adrogation or in manum conventio. In other respects also the strict effects of this capitis minutio were attenuated or done away with by the jurists of the Empire, e.g. as regards personal servitudes.
The Law of the Family Relations.—So far as appears no serious inroad was made by the XII. Tables on the law affecting husband Law of family relations. and wife, unless in the recognition of the legality of so-called “free” marriages, i.e. entered into without any solemnity, and not involving that subjection of the wife to the husband (manus) which was a necessary consequence of the patrician confarreation and plebeian coemption. These latter were left untouched, while on the other hand acquisition of marital manus through usus was fully recognized. As formerly mentioned, it had become a practice with some of the plebeians to tie the marriage bond rather loosely in the first instance, possibly in consequence of objection by the women (as became quite general even among patricians at a later period) to renounce their independence and right to retain their own property and earnings, but more probably because taking a woman to be merely the mother of children (matrimonium) had been practically forced upon them before coemption had been introduced as a means of making her a lawful wife, and so they had become in a manner habituated to it. But the idea that, as a man might acquire the ownership of a thing to which his legal title was defective by prolonged possession of it, so he might acquire manus over the woman with whom he had thus informally united himself by prolonged cohabitation with her as his wife had probably matured and become customary law. The Tables accepted it; all that was needed was to define the conditions under which manus should be held to have been superinduced, and the wife converted from a doubtful uxor into a lawful materfamilias. Hence the provision that, if a woman, married neither by confarreation nor coemption, desired to retain her independence, she must each year absent herself for three consecutive nights from her husband's house (trinoctialis usurpatio)—twelve months' uninterrupted cohabitation being required to give him that power over her which would have been created instantly had the marriage been accompanied by either of the recognized solemnities.
Amongst the fragments of the Tables so industriously collected there is none that refers to a wife's marriage portion (dos); but it is hardly conceivable that it was as yet unknown. Justinian says that in ancient times it was regarded as a donation to the husband with his wife, rather than as a separate estate that was to be used by him while the marriage lasted but to revert to her or her representatives on its dissolution. And it is easy to see that, where there was manus, the wife becoming a member of her husband's family and everything of hers becoming his, such must originally have been its character.[1] But even then, when a man gave his daughter (filiafamilias)—who could have nothing of her own—in marriage, and promised her husband a portion with her, there must have been some process of law for compelling him to pay it; and Voigt's conjecture that an actio dictae dotis was employed for the purpose has something in its favour.[2] As regards divorce, Cicero alludes vaguely to a provision in the Tables about a man depriving his wife of the house-keys and turning her out of doors, with some such words as “take what is thine and get thee gone.” This can only refer to free or non-manus marriages, but even for hand marriages, while repudiations by husbands (but not by wives) were competent, the statement of the historians is that they were few and far between until the 6th century of the city, and that, until the same date, any man who turned his wife away, however serious the ground, without the cognition of the family council, was liable to penalties at the hands of the censors.[3]
Of the two or three provisions of the Tables, known to us that affected details of the patria potestas, which itself was assumed to be so well established by customary law as to need no statutory sanction or definition, one was in the words “si pater (familias) ter filium venum duuit, a patre filius liber esto.” This came to be construed by the pontifical lawyers as meaning that so powerful was the bond of the potestas over a son that it could not be completely loosed until the father had three times gone through the process of fictitious sale by which emancipation was effected. But the conception of the law seems to indicate that its original purpose must have been rather to impose a penalty on the father and confer a benefit on a son in potestate, by declaring him ipso jure free from it on a certain event, than to place difficulties in the way of his emancipation. “If a house-father have thrice sold his son, the latter shall be free from his father.” It reads as if the intention were to rescue the son from what, by its frequent repetition, was suggestive of a total absence of parental affection rather than reluctant obedience to overwhelming necessity. May not its object have been to restrain the practice, which did not wholly disappear even in the late Empire, of men selling their sons or giving them to their creditors in security of loans—such sales or pledges, at the time of the Tables, being effected only by an actual transfer of the child per aes et libram as a free bondman (in mancipii causa), accompanied by, in the case of a loan, a pact for reconveyance when the loan was repaid? Whatever its ratio, however, and whatever the earlier practice, it was upon this law that the interpreting pontiffs based the rules for adoptions and emancipations of filiifamilias. The usual procedure in adoptions was as follows: The natural father emancipated his son to a friend for a nominal price and the latter then manumitted him, the son thereupon reverting into his father's potestas. This was repeated a second time with the same result. After the third sale (patria potestas being extinguished) the purchaser remancipated to the parent. In the latter's hands the son was now in causa mancipii, and so in a position in which he could be permanently transferred to the adopter. This was effected by an in jure cessio, in which the adopter averred that the child was his filiusfamilias, and in which judgment was at once given in his favour on the natural parent's admission or tacit acquiescence. A similar method was followed in emancipation of a filius, except that of course there was no cessio in jure, but instead thereof the parent manumitted immediately after the reconveyance to him. Neither in adoption nor emancipation, however, was emancipation to the paterfamilias essential, though it was usual, and in the case of emancipation carried with it important rights of succession and tutory. For daughters and grandchildren the pontifical jurists by a casuistic interpretation of the said law held one emancipation to be in all cases enough to extinguish the patria potestas.
The nature of the relation between master and slave, like that of manus and patria potestas, seems also to have been too notorious to require exposition in the Tables. We find recorded only two references to it, one dealing with the case of a slave who had a conditional testamentary gift of freedom (statu liber), the other with noxal surrender (noxae deditio). The provision about noxal surrender was not limited to a slave; it was apparently to the effect that, if a member of a man's family (familiaris, i.e. a son or a daughter in potestate or a slave) committed a theft of, or did mischief to, property belonging to a third party, or a domestic animal belonging to one man did harm to another, the father of the delinquent child, or the owner of the slave or animal, should either surrender him or it to the person injured or make reparation in damages. In course of time the surrender came to be regarded as a means of avoiding the primary obligation of making reparation. But comparative jurisprudence recognizes in the enactment of the Tables a modified survival of the ancient right of an injured party to have the delinquent corpus—man, beast or thing—given up to him to wreak his revenge upon it privately, the modification consisting in the alternative of reparation offered to the owner. This noxal surrender, failing reparation, had gone out of use in the case of daughters in potestate before the time of Gaius, and in the case of sons before that of Justinian; but it was still sanctioned so far as slaves and domestic animals were concerned even in that emperor's legislation.
Guardianship and the Introduction of the Order of Agnates.—So long as Rome was patrician the gens apparently charged itself Gentile guardianship. with the guardianship of a clansman's orphan pupil children and his widow and unmarried daughters above pupillarity after his decease (tutela), as well as with that of male members of his family who were sui juris, but above the age of pupillarity, when they chanced to be lunatic, imbecile, prodigal or helplessly infirm (cura, curatio). The gens in council, in all probability, appointed one of its members to act as tutor or curator as the case might be, itself prescribed his duties, and itself called him to account for any failure in his administration.
But, as this gentile tutory could not be extended to the plebeians, among whom some law of guardianship was as much required as among their fellow-citizens of the higher order, the decemvirs found it expedient to devise a new one of universal application. The Tables contained no express authority for testamentary nomination of tutors to the widow
