Marriage was contracted by the simple consent of the parties, though in early times, equality of condition was required. The lex Canuleia, A. U. C. 309, authorized connubium between patricians and plebeians, and the lex Julia, A. U. C. 757, allowed it between freedmen and freeborn. By the conventio in manum, a wife passed out of her family into that of her husband, who acquired all her property; without it, the woman remained in the power of her father, and retained the free disposition of her property. Poligamy was not permitted; and relationship within certain degrees rendered the parties incapable of contracting marriage, and these rules as to forbidden degrees have been substantially adopted in England. Celibacy was discouraged. The law of Augustus Julia et Papia Poppaea contained some seven regulations against it, which were abolished by Constantine. Concubinage was allowed, if a man had not a wife, and provided the concubine was not the wife of another man. This heathenish custom was abrogated by Justinian. [Footnote: D. 25. 7. C. 5, 26.] The wife was entitled to protection and support from her husband, and she retained her property independent of her husband, when the conventio was abandoned, as it was ultimately. The father gave his daughter, on her marriage, a dowry in proportion to his means, the management of which, with its fruits during marriage, belonged to the husband; but he could not alienate real estate without the wife's consent, and on the dissolution of marriage the dos reverted to the wife. Divorce existed in all ages at Rome, and was very common at the commencement of the empire. To check its prevalence, laws were passed inflicting severe penalties on those whose bad conduct led to it. Every man, whether married or not, could adopt children, under certain restrictions, and they passed entirely under paternal power. But the marriage relation among the Romans did not accord after all with those principles of justice which we see in other parts of their legislative code. The Roman husband, like the father, was a tyrant. The facility of divorce destroyed mutual confidence, and inflamed every trifling dispute, for a word, or a message, or a letter, or the mandate of a freedman, was quite sufficient to secure a separation. It was not until Christianity became the religion of the empire, that divorce could not be easily effected without a just cause.
[Sidenote: Paternal power.]
Nothing is more remarkable in the Roman laws than the extent of paternal power. It was unjust, and bears the image of a barbarous age. Moreover, it seems to have been coeval with the foundation of the city. A father could chastise his children by stripes, by imprisonment, by exile, by sending them to the country with chains on their feet. He was even armed with the power of life and death. "Neither age nor rank, nor the consular office, could exempt the most illustrious citizen from the bonds of filial subjection. Without fear, though not without danger of abuse, the Roman legislators had reposed unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master." [Footnote: Gibbon, c. xliv.] By an express law of the Twelve Tables a father could sell his children as slaves. But the abuse of paternal power was checked in the republic by the censors, and afterwards by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. [Footnote: Ch. iv. 17.] The rigor of parents in reference to the disposition of the property of children, was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war. Under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this patria potestas was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and severer than is ever seen in the modern world. [Footnote: Maine, Ancient Law, p. 143.] No one but a Roman citizen could exercise this awful paternal power, nor did it cease until the father died, or the daughter had entered into marriage with the conventio in manum. Illegitimate children were treated as if they had no father, and the mother was bound to support them until Justinian gave to natural children a right to demand aliment from their father. [Footnote: N. 89, ch. xii.] Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents in want. These reciprocal duties, creditable to the Roman law-givers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers, which the Roman fathers had not power to do. [Footnote: Lord Mackenzie, p. 142.] The age when children attain majority among the Romans, was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person, and the right to manage his estate, although the tutor could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.
[Sidenote: Real rights.]
The Institutes of Justinian pass from persons to things, or the law relating to real rights; in other words, that which pertains to property. Some things, common to all, like air, light, the ocean, and things sacred, like temples and churches, are not classed as property. Originally, the Romans divided things into res mancipi, and res nec mancipi. The former comprehended houses, lands, slaves, and beasts of burden, and could only be acquired by certain solemn forms, which, if not observed, the property was not legally transferred. The latter included all other things, and admitted of being transferred by simple tradition.
[Sidenote: Occupancy.]
Occupancy, one of the original modes of acquiring property, was applied to goods and persons taken in war; to things lost by negligence, or chance, or thrown away by necessity; to pearls, shells, and precious stones found on the sea-shore; to wild animals, to fish, to hidden treasure.
Acquisition, by accession, pertained to the natural and industrial fruits of the land, the rents of houses, interest on money, the increase of animals, lands gained from the sea, and movables.
[Sidenote: Transfer of property.]
[Sidenote: Testaments and legacies.]