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 belonged 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 dismissed 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. In Plautus, Bacchides, 4, 8, 52, and Cicero ad diversos: Sum enim χρήσει μὲν tuus, κτήσει δὲ Attici nostri. Ergo fructus est tuus, mancipium illius; quod quidem si inter senes coemptionales proscripserit, egerit non multum, 7, 29: the phrase senex coemptionalis denotes a slave. From which it may be inferred that a slave, useless for any other purpose, and therefore very cheap, was sometimes bought and manumitted to serve as coemptionator. In such a case the whole transaction would be very inexpensive, if not very decorous. This mode of getting rid of sacred rites is compared by Ihering, § 58, with the institution of a slave as successor to bear the infamy of bankruptcy instead of a bankrupt

testator, 2 § 154. 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. Moreover, the Pontifices, who had a veto on adrogations, were not likely to lend themselves readily to the extinction of sacred rites.

At other times Coemption was employed to enable a woman to select a guardian, § 195. Nam quum permulta praeclare legibus essent constituta, ea jureconsultorum ingeniis pleraque corrupta ac depravata sunt. Mulieres omnes propter infirmitatem consilii majores in tutorum potestate esse voluerunt: hi invenerunt genera tutorum quae potestate mulierum continerentur, Cic. Pro Murena, 12.

There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgment were placed by our ancestors under a guardian's control: jurists invented a kind of guardian subject to female dic

tation.'

The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a. The coemptionator (party to the coemption) in virtue of the manus thereby acquired was able, and by a fiducia or trust was bound, to sell the woman into bondage as if she were filia familias: accordingly he remancipated her to a third person, who by manumitting her in accordance with another fiducia became her patron, and as patron, in accordance with the Twelve Tables, § 165, her statutory guardian, and, as having acted under a fiducia, 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. At all

events, however indisposed the guardian might be to such a course, a period at last arrived when the auctoritas of the agnatic guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 195.

Agnatic guardianship of female wards was abolished by a lex Claudia, § 171, and thus the woman would be free from the control of an interested guardian in the disposition of her property during her lifetime. She would still however be a mere usufructuary or tenant for life, being devoid of the power of testation. For when wills could be only executed in the comitia, 2 § 101, she would be excluded from testation, as well as from adrogation, p. 90, by exclusion from the comitia: and after the introduction of the mancipatory will she was still deprived of testamentifactio by her agnates' indefeasible claims to her reversion. Agnation itself, however, was defeasible by means of coemptio and remancipatio and the consequent capitis minutio; and when the auctoritas of the agnates for these proceedings could be extorted, § 195, the woman had practically acquired power of testation, although its exercise was hampered by a tedious formality, which was not abolished by the emperor Claudius when he abolished agnatic guardianship. It was not till the senatusconsult of Hadrian that the rupture of the ties of agnation by means of coemptio ceased to be necessary to the validity of a woman's will, § 115 a; though, as already suggested, it had probably been a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) long before the time of Claudius.

Thering, § 29, explains why capitis minutio was deemed to be a title that conferred upon a woman a right to make a will, a phenomenon that certainly requires explanation, by supposing that the rule was at first adopted in the interest of a married woman's original family and gens. A woman, who after marriage and subjection to manus and consequent change of family had by the death of her husband become sui juris, would, by dying intestate, leave her property to be inherited by the members of her new family; that is by her husband's agnates and gentiles. Accordingly the power of making a will was given, in the first instance, to the genuine widow in the interest of her original agnates, to enable her to divert the devolution of her property from the members of her husband's family and gens to the members of the family and gens of her father. Afterwards, when this exceptional privilege of

married women had once been recognized, simulated or fictitious marriage (coemptio) was employed as an artifice for giving testamentifactio even to unmarried women, and certainly not in the interest of their agnates.

The origination of Manus by length of continuous possession (usus), i.e. by usucapio, 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 this usucapion by an absence for three whole nights in each year. A movable day consists of 24 hours measured from any given moment: A calendar day consists of 24 hours measured from midnight to midnight. A year consists of 365 days; a movable year begins on any given day, a calendar year on the 1st January. The wife's interruption of. the husband's usucapio seems a fitting occasion for some explanation of the different modes of measuring time in Roman jurisprudence. There were three modes of computing a movable year.

(1) Computatio naturalis. A year beginning at a certain hour of a certain day of a certain month ends at the same hour of the same day of the same month when they next recur on the calendar. Thus a year beginning at 11 a.m. 1 Jan. 1800 is completed at 11 a.m. 1 Jan. 1801. This mode of computation is said to be ad momenta, by moments (computatio a momento ad momentum), where momenta as opposed to dies means hours, minutes, seconds, i. e. any subdivisions of the day. This mode of computation, requiring exact chronometric instruments, is quite exceptional in Roman law, and is only expressly applied to the determination of Majority or the age of 25 years, D. 4, 4, 3, 3. Thus a man born 11 a.m. 1 Jan. 1800 attains his majority at 11 a.m, 1 Jan. 1825, and if he makes any contract at 10 a.m. of that morning is entitled to restitution as a minor. Savigny supposes that the same rule would be applied in determining the limits of tutela and curatela,

Computatio civilis. The imperfection of chronometric instruments caused the subdivisions of the day to be neglected in ordinary legal computations and only whole days to be counted: in other words the jurist only regarded calendar days, 24 hours from midnight to midnight, not movable days, 24 hours beginning and ending at any moment. Accordingly the first day of the year was always assumed to have begun at the first moment of the calendar day, but the treatment of the last day varied.

(2) It was either considered as completed the moment after it

began thus a year of 365 days beginning at any moment of 1 Jan. is completed a moment after the midnight which separates Dec. 30 from Dec. 31. This computation was employed when a right was to be acquired on the expiration of å certain term.

(3) Or the last day was not counted at all until its actual termination, so that the year beginning at any hour of 1 Jan. is not completed till the midnight which separates 31 Dec. from 1 Jan. This mode was employed when a right was to be lost on the expiration of a certain term

If a right was to be acquired on 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

mediately 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.

Such is Vangerow's doctrine, § 196. So deficient, however, in precision is the Latin language when it attempts to define periods of time, that Savigny, with the same passages before him, makes the civil year one day longer, both when a right is acquired and when a right is extinguished; that is, he makes the first of the 365 days which compose the year to be the day after the day on which occurs the event that forms the starting point of the year; whereas Vangerow includes within the year the day on which the limiting event occurred. Thus Savigny would make an annual usucapion beginning 1 Jan. end a moment after the midnight separating 31 Dec. from the next 1 Jan., and the prescription of a right of action commencing to run from a 1 Jan.