Page:Harvard Law Review Volume 8.djvu/60

44 44 HARVARD LAW REVIEW. about 700 A. U. C, shows conclusively that, in his time, at least, such a contract was actionable. Upon the marriage of a daughter, the father's power over her was merely transferred to the husband. It was then called manus, and could arise only from a marriage sanctioned by law (^justum fnatrimonium). Under the kings, and during the earliest days of the republic, there was but one form of marriage in which the patrician, then the only Roman citizen, would permit himself to take part. This was the marriage sanctioned by the old religion already spoken of. It was called Confarreatio. It took place in presence of the pontifex maximus, and of ten witnesses, probably representative of the ten curies or wards of ancient Rome. In the words of Gaius, it was " a ceremony in which they used a cake of spelt (^farreus panis), whence the name is derived, and various acts are required to be done with a traditional form of words." ^ It was entirely a matter of religion ; and, doubtless, in the belief of the devotees of that ancient ancestral worship, it was the only ceremony by which the wife could be initiated into the mysteries of the family altar, and bear children to perpetuate the race, to keep alive the sacred fire, and to make prayers and offerings to the ancestral dead. Another form of marriage, at first probably peculiar to the plebeians, was also recognized by the law as capable of conferring maims over the wife, and potestas over the children, though, most likely, not until after the passage of the Lex Camuleia, in the year 308 A. U. C, repeahng that enactment of the Twelve Tables ^ which forbade marriage between a patrician and a plebeian. This marriage was called Coemptio, defined by Gaius as " an imaginary sale, in the presence of at least five witnesses, Roman citizens above the age of puberty, besides a balance-holder. "^ In its ori- gin it was, undoubtedly, not an imaginary sale but a real one. Still another form of marriage, or more properly, another method of conferring on the husband power over his wife and children, was that peculiar acquisition — it can hardly be called ceremony, for there was but little ceremony about it — of the wife known as usus. The husband, after a year of continuous cohabi- tation, acquired over his wife all marital powers. In other words, the husband gained the ownership of the wife by prescription, just as he would have done in the case of any movable chattel by the 1 Gaius I., 112. 2 Table XI. » Gaius I., 113.