III.
As is natural, we also meet with the same phenomena in the history of the family, from which the civil law is to a great extent derived. In fact, whoever contemplates the primitive Roman family, at once recognises it as the basis upon which the future juridical and political greatness of Rome was erected. The family is sacred; the father is absolute master of the goods, the liberty and the life both of his wife and of his children. He is priest, judge, supreme arbiter: wife, children, and grandchildren form with him a single joint society, one legal entity of which he is the representative. The woman may be bartered away, killed, or sold in execution; freed by marriage from the despotic control of her father, she at once falls under that of her husband; her legal incapacity lasts through her whole life. But primitive customs so temper this harsh law that we find no other people of antiquity so observant of the sanctity of family, or showing so much respect to woman. Matrimony is styled "consortium omnis vitæ, divini et humani iuris communicatio." Divorce on the part of the husband (repudium) is not forbidden by law, but any man who repudiates his wife is dishonoured by the Censor, excommunicated by the priest, and for a period of five centuries few cases of repudiation are recorded. In ancient Greece some traces of oriental polygamy are still discernible, but in Italy monogamy is coeval with Rome itself. Natural children, as such, never rank as members of the family, but they may be legitimated. Adoption is a solemn act, the moral propriety of which is referred to the decision of the pontifex, as the guardian of the sanctity of the family, and is thus submitted to the popular sanction. The woman is never seen in places of public resort, nor does she attend popular gathering; but within doors she is domina, and the husband addresses her by that title. The Atrium is the centre and sanctuary of the house. Here relations, friends, and strangers meet together; here stand the domestic hearth, the altar dedicated to the Lares, and all those objects which the family holds sacred: the nuptial coach, the ancestral likenesses moulded in wax from the faces of the dead, the matron's rock and spindle, the chest containing the household records and monies. All these possessions are entrusted to the care and superintendence of the mother of the family, who, together with her husband, sacrifices to the gods and assists him in the management of the common patrimony: she directs all domestic work, and watches over the education of her children. In the annals and legends of Rome the name of some heroine, such as Virginia or Lucretia, is indissolubly linked with the chief glories of the Eternal City. It is not so in Greece. In instituting and sanctifying the family, the Romans laid the foundation-stone of the Capitol. But to maintain this primitive nucleus of Roman society firm and compact, the law must always watch with vigilance and multiply its ordinances. The property of the family must be kept together as strictly as possible and for the longest possible time. The father is its sole master and arbiter; but on his death the patrimony is equally divided between sons and daughters. The unity of the family must also be guarded and defended by the law, since there is serious danger that a woman marrying may carry away from the family an interest in the family property. She is accordingly subjected by the law to a perpetual tutelage which prevents her from disposing at will of her own property. On the death of her father the woman comes under the tutelage of the agnati. In Cicero's day, when as Vico has noted, the true significance of primitive Roman law had been lost, lawyers believed that this tutelage of women had been established on account of the weakness of the sex, propter sexus infirmitatem. But Gaius refers to this opinion as a plausible and prevalent error, and maintains that the restriction was instituted in the interest of the agnati, so that the woman, whose presumptive heirs they were, should have no power to alienate, diminish, or otherwise defraud them of their inheritance.[370]
So long as the woman remained under the tutelage of her father, inasmuch as she had not yet inherited, the law allowed her to incur legal obligations. The danger for the family began when, on her father's death, she became an heir. It was from that precise moment, accordingly, that she came under the tutelage of her own heirs the agnati, and could no longer bind herself without their consent. This tutelage, therefore, became not merely a duty on the part of the agnati, but was also a right and privilege. Where the agnate was a minor, of weak mind, or otherwise incapacitated, he did not forfeit this right, but it had to be exercised by a third party. The tutor fixed the dowry to be given with the woman on her marriage; but the remainder of her patrimony had to be preserved intact, that it might return afterwards to the agnati. No woman could make a will, that she might not have it in her power to defraud the family. On passing in manus viri, the woman underwent a capitis diminutio. She entered another family, as it were, loco filiæ, and her new relations became her lawful heirs. Under these circumstances the law permitted her to make a testamentary disposition, whereby, notwithstanding her new relationships, she might restore her patrimony to her own original family.
When the woman was under the manus of her husband, she was emancipated from the paternal authority and from the tutelage of her agnates. The displeasure thereby caused to her own family was so great that, before long, marriage by simple consent was resorted to, according to which the woman became personally subject to her husband's authority, but he had no right of manus over her, and consequently no power over her property. In this way the woman remained under the power of her father or of the agnates, and at the same time came under the authority of her husband, an arrangement that inevitably led to many collisions, and hastened the advent of the most radical change in the Roman family—the complete independence of woman. But, before reaching this point, disputes were for a long time kept in check and efficaciously remedied by the mediating influence of a most important institution—the domestic tribunal. This family council, regulated by usage, not law, was composed of agnates, cognates, relations, and sometimes also of friends. It presided at espousals and at the assumption of the toga virilis; it protected orphans; it aided the head of the family in adjudicating and in awarding punishment, and acted as a restraint on his authority. By law, the father could act even without the co-operation of the Council; but by doing so, he exposed himself to being publicly blamed and noted with ignominy by the Censor, who, if necessary, might accuse him before the people. The marriageable maiden was subject to and protected by this Council.
Becoming a wife by that form of marriage which brought her in manus viri, she left her own family to become member of another; but if not married under that form, she still remained subject to the family Council, in which her husband was now included.