art master, I am mistress.' Boethius on Cicero Topica, 3, 14, quoting from Ulpian, says: Sese in coemendo invicem interrogabant, vir ita: an sibi mulier materfamilias esse vellet? illa respondebat velle. Item mulier interrogabat, an vir sibi paterfamilias esse vellet? ille respondebat velle. Itaque mulier viri conveniebat in manum, et erat mulier materfamilias viro, loco filiae. "The man and woman interrogated one another. He asked her if she wished to be mother of his household; she answered, Yes. She asked him if he wished to be father of her household; he answered, Yes. And thus the woman passed into the Hand of the man, and was called the mother of his household, with the status of filiafamilias.' According to Cicero, the wife was only called materfamilias when subject to Hand: Genus est uxor, ejus duae formae, una matrumfamilias, quae in manum convenerant, altera earum quae tantummodo uxores habentur, Top. 4. Gellius says the same: Idonei vocum antiquarum enarratores tradiderunt . . . . matremfamilias appellatam esse eam solam quae in mariti manu mancipioque, aut in ejus in cujus maritus manu mancipioque esset, quoniam non in matrimonium tantum sed in familiam quoque mariti et in sui heredis locum venisset, Gellius, 18, 6. Competent interpreters of the ancient language say that materfamilias was a title only given to a wife in the hand and mancipation of her husband, or of the person who held her husband in hand and mancipation, as she was not only a wife, but a member of the family of the husband, having acquired therein the status of self-successor.' Boethius further limits the title to a wife who has become subject to manus by coemption: Quae autem in manum per coemptionem convenerant, hae matresfamilias vocabantur, quae vero usu et farreatione minime, ibid. However this may have been, in one sense the name was a misnomer, for a wife subject to hand was not sui juris (materfamilias), but alieni juris (filiafamilias).

If the wife was subject to the power of her father she required his consent (auctoritas) before she could make a coemption with her husband: Secundo capite legis Juliae de adulteriis permittitur patri si in filia sua quam in potestate habet, aut in ea quae eo auctore, cum in potestate esset, viro in manum convenerit, adulterum domi suae generive sui deprehenderit, isque in eam rem socerum adhibuerit, ut is pater eum adulterum sine fraude sua occidat, ita ut filiam in continenti occidat, Collatio, 4, 22. The second section of the lex Julia on adultery permits a father who finds his daughter,

who is in his power or with his consent in the hand of her husband, committing adultery in his house or in the house of her husband, if called in for the purpose by his son-in-law, to kill the adulterer with impunity, provided that at the same time he also puts his daughter to death.' If the wife was independent of parental control, she required the sanction of her guardians, that is, her agnates, before she could make a coemption with her husband: In manum convenerat usu an coemptione? Usu non potuit, nihil enim potest de tutela legitima nisi omnium tutorum auctoritate deminui. Coemptione? omnibus ergo auctoribus, Cic. Pro Flacco, 34. Had the wife become subject to marital power by cohabitation or by coemption? Certainly not by either, for the rights of agnatic guardians cannot be defeated without the concurrence of all the guardians.'

He

Coemption was sometimes employed for other purposes than matrimony, and was then called fiduciary coemption. Sometimes the intention was to extinguish the obligation of onerous sacred rites attached to the estate of an heiress: Jure consultorum ingenio senes ad coemptiones faciendas interimendorum sacrorum causa reperti sunt, Cic. Pro Murena, 12. Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.' Savigny gives the following conjectural explanation of the process. The obligation to the sacra attached to the Quiritary ownership of the universitas of the woman's estate. This, by the effect of coemption, vested in the coemptionator, an old man approaching dissolution (senex coemptionalis), with whom a fictitious marriage was contracted, and who took the estate as universal successor. forthwith expelled the woman from his manus by remancipation and manumission, and then, according to covenant, restored to her the estate in portions, that is, released from the ritual obligations, which only attached to the universitas. On his death, as Quiritary owner of the empty universitas, the obligation to the rites was extinguished, for the succession (hereditas) to the coemptionator did not pass to the woman, as she by remancipation had ceased to be [such was the hypothesis of Savigny before the discovery of Gaius: instructed by Gaius we must rather say, as mere fiduciary coemption had not the effect of making her] his filiafamilias and sua heres. Universal succession was an institution which Roman law only admitted in certain cases: as operated by contract it was only admitted in case of Manus and Adoptio. If universal succession was required for the purpose of extinguishing the obligation to

sacred rites attaching to the estate of an heiress, we might have supposed that adrogatio would have been a less offensive mockery than a fictitious marriage (fiduciary coemption); adrogatio, however, was inapplicable, because, as we have seen, up to a late period of Roman law women were incapable of being adrogated. At other times coemption was employed to enable a woman to select a guardian, § 195, or by breaking the ties of agnation to acquire testamentary capacity, § 115 a. The coemptionator (party to the coemption) in virtue of his manus could sell the woman into bondage as if she were filiafamilias: accordingly, he mancipated her to a third person, who, by manumitting her, became her patron, and, as patron, in accordance with the Twelve Tables, § 165, her statutory guardian, and was called her fiduciary guardian, § 115. It may occur to us that as coemptio required the sanction of a father or guardian, this process could not be of much use in getting rid of a guardian or defeating the claims of agnatic guardians to a woman's intestate succession; but it must be remembered that the nearest agnate, who alone was heir and guardian, was a variable person, and that a given nearest agnate might be not indisposed to allow a woman to acquire the free disposition of her property and to defeat the claims of those who, after his death, would be nearest agnates and presumptive heirs.

Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and the rupture of the ties of agnation by means of coemption ceased to be necessary to the validity of a woman's will by a senatusconsult of Hadrian, § 115 a.

The origination of manus by length of continuous possession (usus), i. e. by usucapion, shows plainly enough that early Roman law regarded the wife as a mere chattel of the husband. The law of the Twelve Tables allowed the wife to bar the usucapion by an absence for three nights in each year, which gives rise to a question of computation. The Roman year consisted of 365 days; the day of 24 hours was measured from midnight to midnight. Where the expiration of a certain term was an element of Title, the following distinction was observed: if a right was to be acquired by the expiration of a certain period, it was acquired as soon as the last day of the period began; for instance, if the period was a year, the right was acquired immediately after midnight of the 364th day. This applied to acquisition of ownership by usucapion, Dig. 44, 3, 15, and Dig. 41, 3, 6; acquisition of testamentary capacity by

attaining to years of puberty, Dig. 28, 1, 5; acquisition of manumissive capacity, Dig. 40, 1, 1; acquisition by a Latin of the franchise by bringing up a yearling (anniculus) issue of a lawful marriage, Dig. 50, 16, 132. Anniculus trecentesimo sexagesimo quinto die dicitur, incipiente plane, non exacto die, quia annum civiliter non ad momenta temporum sed ad dies numeramus, Dig. 50, 16, 134. A child is said to be a yearling on its 365th day, at the beginning, not at the close of the day; for civil computation of the year does not recognize the minor subdivision into minutes or hours, but only reckons by whole days.'

When, on the contrary, a right was forfeited or extinguished by lapse of a certain period, as in the loss of a right of action under a statute of limitations, Dig. 44, 7, 6, the period was not completed until the last day was ended. The following passage from Gellius shows that the vesting of manus by cohabitation was regarded as a loss of independence by the wife, not as an acquisition of power by the husband, for the latter computation was employed. Q. quoque Mucium jure consultum dicere solitum legi, lege non isse usurpatum mulierem, quae, quum kalendis Januariis apud virum matrimonii causa esse coepisset, ante diem quartum kalendas Januarias sequentes usurpatum isset: non enim posse impleri trinoctium, quod abesse a viro usurpandi causa ex duodecim tabulis deberet, quoniam tertiae noctis posteriores sex horae alterius anni essent qui inciperet ex kalendis, 3, 2. 'I have read that, according to Quintus Mucius, the statutory requirements for the interruption of usucapion are not satisfied if a woman married on the 1st of January and did not leave her husband's house until the 29th of December, as she could not then be absent for three days before the end of the year, the interval required by the Twelve Tables, because the last six hours of the third night belong to the first day of the following year.' This implies that the year of cohabitation was not completed before midnight of the 31st of December, and that the wife could satisfy the law by leaving on the 28th. If the vesting of manus had been regarded as an acquisition of a right by the husband, the year would have been complete immediately after midnight of December 30, and the wife could not have accomplished a sufficient interruption of possession (usurpatio) unless she left her husband's house before midnight on the 27th.

§ 114. Fiducia was a declaration of the conditions, purposes, and trusts of a mancipation. Besides its use in coemption, it was employed, as we shall see presently, in emancipation and adoption,

and was the earliest form of constituting the contracts of deposit and mortgage, 2, § 59.

DE MANCIPIO.