Page:The early history of the property of married women.djvu/13

9 herself for a definite period from her husband's domicile, to protect herself from his acquisition of paternal power over her person and property. The exact duration of the absence necessary to defeat the Usucapion—three days and three nights—is provided for in the ancient Roman Code, the Twelve Tables, and doubtless the appearance of such a rule in so early a monument of legislation is not a little remarkable. It is extremely likely, as several writers on the ancient law conjectured, that the object of the provision was to clear up a doubt, and to declare with certainty what period of absence was necessary to legalise an existing practice. But it would never do to suppose that the practice was common, or rapidly became common. In this, as in several other cases, it is probable that the want of qualification in the clause of the Twelve Tables is to be explained by the reliance of the legislature on custom, opinion, or religious feeling to prevent the abuse of his legislation. The wife who saved herself from coming under marital authority no doubt had the legal status of wife, but the Latin antiquarians evidently believed that her position was not at first held to be respectable. By the time of Gaius, however, any association of imperfect respectability with the newer form of marriage, was decaying or had perished; and, in fact, we know that marriage "without coming under the hand," became the ordinary Roman marriage, and that the relation of husband and wife became a voluntary conjugal society, terminable at the pleasure of either party by divorce. It was with the state of conjugal relations thus produced that the growing Christianity of the Roman world waged a war ever increasing in fierceness; yet it remained to the last the basis of the Roman legal conception of marriage, and to a certain extent it even colours the canon law, founded though it be, on the whole, on the sacramental view of marriage.

For our present purpose, it is necessary to regard this newer marriage just when it had superseded the ancient and stricter usages of wedlock, and just before it began to be modified by the modern and much severer principles of Christian community. For at this point in the history of marriage, we come upon the beginnings of that system of settling the property of married women which has supplied the greatest part of Continental Europe with its law of marriage settlement. It appears an immediate consequence from thoroughly ascertained legal principles that, as soon as the wife ceased to pass by marriage