Page:Harvard Law Review Volume 8.djvu/62

46 46 HARVARD LAW REVIEW. riage there was no way in which she could recover it. Everything that she acquired during coverture, also, of course, became the property of her husband. In short, as the jurists expressed it, she stood to her husband in place of a daughter {loco filiae). All his powers over her were acquired not as husband but as father. Nor is there any doubt that, in the earliest times, the authority of the man over his wife was as unlimited as his authority over his slaves or children. But great restrictions are said to have been placed upon the capricious exercise of this fearful power, even in legendary times. Romulus is credited with having forbidden the killing of a wife except for adultery or wine-drinking. He is also said to have enacted the law that whoever sold his wife should be given over to the infernal gods ; and if a wife were divorced on no just grounds, her ungrateful spouse's property was forfeit, one half to Ceres, and one half to his wife or her family. But a fragment of Cato the Censor shows what a terrible power was still wielded over the wife, even in historical times: " The husband is the judge of his wife. If she has committed a fault, he punishes her; if she has drunk wine, he condemns her; if she has been guilty of adultery, he kills her." ^ In the same fragment this perfect type of the early Romans says : " If you were to catch your wife in adultery, you would kill her with impunity without trial ; but if she were to catch you, she would not dare to lay a finger upon you, and indeed she has no right." Just as, in the opinion of the Roman jurist, consent was the essential ingredient of the marriage contract, so he considered consent necessary also for the continuance of the nuptial state, and all that was needed by him for its dissolution was an expres- sion of such a desire by one of the contracting parties. And it was not until centuries after the fall of the republic that the law ever in any way regulated divorce. It is true that even in the earliest times a ceremony was necessary to dissolve the confarreate marriage ; but this necessity was prescribed by religion and not by the civil law. Such dissolution of the marriage state was called Diffarreatio, and was the opposite process to Confarreatio. The cake was rejected in the presence of a priest and witnesses, and, instead of prayers, curses, spiteful and terrible, were pronounced by the quondam husband and wife. The marriage by Coemptio was dissolved by Remmicipatio, which 1 Fragment " De dote ; " see Cato, his Quae Extant, H. Jordan, editor, Leipsic, i860, p. 68.