Chapter VI: Later Law. Pecuniary Relations of the Consorts

This curiously detached position of the two consorts expressed itself in their pecuniary relations. Each had complete disposal of his or her property by will as well as during life, though the wife needed, down to a comparatively late time, the authority of her guardian[175]. Neither had originally any right of succession to the other in case of intestacy, nor had the wife any right of intestate succession to her children nor they to her, except that which the Praetor gave them among the blood relatives (_cognati_) generally, after the agnates (persons related through males). A state of things so inconsistent with natural feeling could not however always continue, so the Praetor created a rule of practice whereby each consort had a reciprocal right of succession to the other. But even in doing so, he placed this succession after that of other blood relations, as far as the children of second cousins. This postponement of a consort to blood relatives was carried even further by Justinian’s legislation, for that emperor extended the category of relatives who could succeed in case of intestacy, and made no provision for the wife (beyond that which the Praetor had made), except to some small degree in case of a necessitous widow. The relationship of mother and child received a somewhat fuller recognition, for laws (_Senatus Consultum Tertullianum_, _Sc. Orphitianum_) of the time of Hadrian and Marcus Aurelius gave the mother and the children reciprocal rights of inheritance[176], which, finding a place in the general scheme of succession based on consanguinity which Justinian established, have passed into modern law.

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Footnote 175:

The guardianship of women of full age seems to have died out after
women received power to select a guardian for themselves, a change
which of course made his action purely formal.

Footnote 176:

The mother’s succession was originally granted only where she had
borne three children (if a freed-woman, four).

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Distinct as were the personalities of the two consorts in respect of property, the practical needs of a joint life recommended some plan under which a provision might be made for the expenses of a joint household. This sprang up as soon as marriages without the concomitant creation of the Hand power had grown common. It became usual for the wife to bring with her land or goods, either her own, if she were independent, or bestowed by her father or other relative. This property, which was destined for the support of the married pair and their children, was called the _Dos_, a term which, since it denotes the wife’s contribution to the matrimonial fund, must not be translated by our English word Dower, for that term describes the right of a wife who survives her husband to have a share in his landed estate. Many rules sprang up regarding the _Dos_, rules probably due in the first instance to custom, for as the instruments of marriage contracts were usually drawn on pretty uniform lines, these lines ultimately became settled law[177]. The general principle came to be that property given from the wife’s side, whether by her father, or by herself, or by some of her relatives, became subject to the husband’s right of user while the marriage lasted, as enabling him to fulfil his obligation to support wife and children, but at the expiry of the marriage by the death (natural or civil) of either party, or by divorce, reverted to the wife or her heirs[178]. If, however, the property had been bn 414.png given by the wife’s father, he might, if still living, reclaim it[179]. The _Dos_ is said by the Romans to be given for the purpose of supporting the burden of married housekeeping, and therefore the administration and usufruct of it pertain to the husband, while the ultimate ownership remains in the wife, or in the father who constituted it, as the case may be. In the later imperial period a sort of second form of matrimonial property was introduced, called the gift for the sake of marriage (_donatio propter nuptias_). It was made by the husband, and remained his property both during and after the marriage. So far, as it was only theoretically separated from other parts of the husband’s estate, it might seem to have no importance. But if he became insolvent, it did not, like the rest of his property, pass to his creditors, but went over to the wife, just as the _Dos_, although administered by the husband, remained unaffected by his insolvency. And just as the husband was entitled, where a divorce was caused by the wife’s fault, to retain a part of the _Dos_, so if a divorce was caused by the husband’s fault, the _donatio propter nuptias_, or a part of it, might be claimed by the injured wife. The similarity of some of these arrangements to the practice of English marriage settlements will occur to every one’s mind, though in England settlements are always created and governed by the provisions of the deeds which create them, whereas in Rome, although special provisions were frequently resorted to, there arose a general legal doctrine whose provisions were applicable to gifts made upon or in contemplation of marriage.

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Footnote 177:

The ‘custom of conveyancers’ has worked itself into English law in a
somewhat similar way.

Footnote 178:

This was the rule as settled by Justinian. Before his time, the
husband took the _Dos_ at the wife’s death unless it had been given by
her father.

Footnote 179:

There are many less important rules regarding the extent of the
husband’s interest and the form in which the property is to be
restored at the end of the marriage, which it is not necessary to set
forth, as they do not affect the general principle. Indeed generally
through these pages I am forced, for the sake of clearness and
brevity, to omit a number of minor provisions.

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One further point needs to be mentioned. It was a very old customary (or, as we should say, common law) rule of Roman law that neither of the wedded pair could during the marriage bestow gifts upon the other, the reason assigned being the risk that one or other might by the exercise of the influence arising from their relation be deprived of his or her property to his or her permanent damage (_ne mutuato amore invicem spoliarentur_). This principle, which protects the wife from being either wheedled or bullied out of her separate property, and may be compared with the English restraint on alienation or anticipation applied to a wife’s settled property, was also held to be occasionally needed to protect the husband’s interests, and those of the children, from suffering at the hands of a grasping wife. It issues from the view which the Roman jurists enounce that affection must not be abused so as to obtain pecuniary gain; and one jurist adds that if either party were permitted to make gifts the omission to make them might lead to the dissolution of the marriage, and so the continuance of marriages would be purchasable[180]. Such gifts were accordingly held null and void, the only exception being that where property actually given had been left in the donee’s hands until the donor’s death, the heir of the donor could not reclaim it from the surviving donee. Needless to say that the rule only covered serious transfers of property, and did not apply to gifts of dress or ornaments or such other tokens of affection as may from time to time pass between happy consorts.

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Footnote 180:

‘Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset
ut discuterentur matrimonia si non donaret is qui posset atque ea
ratione eventurum ut venalicia essent matrimonia.’ This view was
sanctioned by the Emperor Caracalla in his speech to the senate, which
introduced the exception next mentioned in the text; _Dig._ xxiv. 1.
2.

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