Roman Law

Divorce was always possible at the instance of the husband in cases of marriage with manus, and in marriage without manus it was free to either party to put an end to the relation ship at will; a letter of repudium was usual, but any manifestation of intention to end the relationship made clear to the other party and accompanied by actual parting was all that was legally neces sary (see E. Levy, Der Hergang bei der romischen Ehescheidung). The Christian emperors imposed penalties on those who divorced without good reason, but the power of the parties to end the mar riage by their own act was not taken away. Concubinatus was recognized in the empire as a sort of morganatic marriage, differ ing from marriage only by the different intentions of the parties, and excluding marriage, for a man could not have both a wife and a concubine. Constantine first enacted that the children of such unions might be legitimated by the subsequent marriage of their parents, a rule which the mediaeval civil law extended to all illegitimate children.

(c) Guardianship.—(1) Of children. Persons under the age of puberty (14 for males, 12 for females) needed tutores if they were not under patria potestas. Such tutors could be appointed under the will of the pater familias; failing such appointment the guardianship went to the nearest agnates (see p. 453 "Succes sion") until Justinian gave it to the next of kin whether agnatic or cognatic ; if there were no qualified relation the magistrates made an appointment.

(2) Of women. Originally all women not under patria potes tas or manus needed tutores, who were appointed in the same way as those for children. In classical times already this perpetua tutela mulierum was little more than a burdensome technicality and it had long disappeared from Justinian's law.

(3) Of lunatics and spendthrifts. Originally such persons were ' placed under the cum of their agnates; later, magistrates ap pointed curators.

(4) Of minors. Originally children were considered adult when of the age of puberty, but, by a long development, it became usual for those above puberty and under 25 to have curatores who were always magisterially appointed.

The most striking thing to an English lawyer accustomed to the complexities of English real property law is the absence of any fundamental distinction between the treatment of land and the treatment of movables. Both can, in the law as we know it, be owned absolutely by individuals, though there may have been a time at Rome as elsewhere when land was subject to communal ownership of some sort. This conception of absolute ownership

(dominium) is also characteristically Roman, as opposed to the relative idea of ownership as the better right to possession which underlies the Germanic systems, which also, originally, under lay that of Rome. This can be seen by comparing the form of a vindicatio (the claim of an owner out of possession) under the legis actio system of procedure with that which it later assumed under the formulary system. In the earlier system the plaintiff first makes his assertion of ownership ("I say that this thing is mine") and then the defendant makes a similar assertion. Finally, the thing goes to the one whose assertion is based on the better right. Under the later system there is no assertion by the de fendant at all ; the index is instructed to condemn the defendant if it appears to him that the thing belongs to the plaintiff, other wise to absolve the defendant. Hence, unless the plaintiff makes good his title absolutely, the defendant, though he may have no title at all, remains in possession.

A great part of what the jurists have to say on the subject of property comes under the heading "methods of acquiring owner ship." These were divided into two classes according as they fell under the ius civile or the ius gentium.

I. Methods of the Ius Civile

(a) Mancipatio.—This was a ceremonial conveyance needing for its accomplishment the pres ence of the tranferor and transferee, five witnesses (Roman citi zens of full age) a pair of scales, a man to hold them (libripens) and an ingot of copper. The transferee grasped the thing and said : "I assert that this thing is mine by Quiritarian law; and be it bought to me with this piece of copper and these copper scales." He then struck the scales with the ingot which he handed to the transferor "by way of price." Clearly this was, as Gaius says, a "symbolical sale," and the relic of a real sale. Originally, when money was unknown, the price in uncoined copper had been really weighed out to the vendor. When this became unnecessary there was still a pretence of weighing, but the price was paid separately, and the form could be used as a conveyance where it was not intended that a price should be paid at all, e.g., because the transferor was making a gift to the transferee.

(b) In lure Cessio.—This was a conveyance in the form of a lawsuit. The transferee claims before the magistrate that the thing is his, and the transferor who is the defendant, admits the claim. The magistrate then adjudges the thing to the transferee.