Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
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THE LAW OF PERSONS |
Many of the settlements in North America out of which the United States have grown were in existence long before the Act of 1753 which abolished 'common law marriage', i.e. marriage by mere declaration per verba de praesenti, and they had taken the conception of common law marriage with them. They were not affected by the Act of 1753, and such marriages are still possible in some States. But the legislation of the States is extremely variable. Some Southern States have dealt with * marriages' of slaves before they were emancipated, and Roman texts provide a parallel for this.1 In Oregon, marriage was at one time presumed from one year's cohabitation, whether marriage was intended or not, which obviously recalls the old marriage by manus resulting from one year's cohabitation.2 Moreover English courts will recognise as valid a marriage contracted in accordance with common law requirements in any British territory where the common law still prevails, and in addition in a foreign country where compliance with the local law is impossible or where the local law does not apply to the parties because they had not subjected themselves to it, whether the parties are of British or of foreign nationality.3
The effects of marriage are widely different in the two systems. At Rome if there were children there were important rights and duties relative to them. But apart from this the union in itself created hardly any immediate rights and duties. Adultery, though it was a crime, was not a civil wrongSuch duties as there were, so far as enforceable
1D. 23. 3. 39, 67.
2Vernier, American Family Laws, i. Sect. 26.
3See Hall, Foreign Jurisdiction of the British Crown, pp. n o - n 4 ,
194; Halsbury,vol. 19^1317; Cheshire, Private International Law, 6th ed. pp. 344—7. For survival of the common law marriage in American jurisdictions, see Vernier, loc. cit. Another American author, Keezer, Marriage and Divorce, 2nd ed. Sect. 81, suggests that in States in which common law marriage is legal marriages by telephone would be valid; and there is clear authority for the validity of marriages by mail.
MARRIAGE |
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at law, were few and subsidiary. Indeed the texts repeatedly insist on the notion of liberum matrimonium and freedom from legal rule.1 It has often been pointed out that marriage or no marriage was a question of fact in the same sense as the question, possession or not, was one, though, as was inevitable, both notions became somewhat sophisticated in the hands of the lawyers. The immediate effects were so slight that the question whether marriage was a contract or a conveyance is almost meaningless for Roman law. Marriage carried with it the possibility of a doS) a fund provided by or for the wife and vested in the husband during the marriage,2 as a contribution to the joint expenses, the destiny of the fund when the marriage ended being regulated in classical and later law by highly technical rules varying with the circumstances. But dos was not necessary to marriage. Apart from dos and, in late law, donatio ante nuptias, a similar fund provided by the husband, the finances of the parties were quite distinct. The husband acquired nothing through the wife: what came to her was hers. He was in no way liable for her debts of any kind. She could not pledge his credit. Such a status as feme coverte is wholly alien to Roman notions.
The common law conception of marriage, which made the parties one person for many purposes of property law, is in sharp contrast with the Roman view, under which, apart from manus> the marriage produces no effect whatever on property relations.3 Both systems still agree in excluding proceedings for theft between the spouses, though in England theft can occur when they are not living together or when the property is taken with a
1See, e.g., Buckland, Text-book, p. 106.
2It seems fairly clear that the classical jurists regarded the husband as dominuSy but Justinian recognised something very like the English distinction between the legal estate and the equitable interest, the husband having the former and the wife the latter. See Pringsheim, 59 L.Q.R. p. 244; and p. 82, post.
3Statute has practically abrogated the common law doctrine.
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view to their ceasing to live together.1 The underlying reason in both systems is probably the unseemliness of such proceedings, but the difference in the effect of marriage on the property relations makes the rules work out differently. The common law doctrine was that no theft was conceivable between persons married to each other and thus even an accomplice of the dishonest spouse could not be liable, since there was no theft.2 The Roman view was that there might well be a theft, as their properties were distinct, but no proceeding of an infaming character, such as the actio furti^ could be allowed between them. The result was that if there had been an accomplice he was liable, though the spouse was not,3 without reference to any question of adultery determining the wife's power of dealing with the property.4
4. THE FAMILY
The rubric of family law is prominent both in the modern Roman law and in our own law: in the Roman law of the Romans it can hardly be said to find a place. There is indeed what may be called a constitutional law of the family, that is to say, rules as to the constitution of the family and the ways in which it can be entered and left, but there is very little more. The reason for this is to be found in the patria potestas.5
The immense power of the paterfamilias', coupled with his right to determine the relation at any time, makes the Roman family a very different thing from ours. At
1 Married Women's Property Act, 1882, Sect. 12, and Larcency Act, 1916, Sect. 36, as amended by the Law Reform (Married Women and Tortfeasors) Act, 1935, and the Law Reform (Husband and Wife) Act, 1962.
2R. v. Avery (1850), Bell. 150.
3D. 25. 2. 29; there was machinery for recovery of the property,
D . 25. 2; C. 5. 21, actio rerum amotarum,
4Cf. R. v. Mutters (1865), Le. and Ca. 511.
5See Pound, Spirit of the Common Law, p. 27, for an interesting comparison of this with our feudal conception and its reciprocal duties.
THE FAMILY |
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common law the father, as guardian of his legitimate child, enjoyed the exclusive right to custody and could determine the child's religion and education. His rights ceased at latest when the child reached full age and in some circumstances earlier. But practically all the rights are now shared equally by the parents (except that the mother has a prima facie right to custody of an illegitimate child) though parental rights have also been largely subordinated to the welfare of the child itself.1 And, while these parental rights can be forfeited in certain circumstances, it seems that the parents cannot rid themselves by their own volition of their obligations in respect of infant children. The child's property is his own: anything given to him by the parent or from outside vests in him, though his powers of administration are very limited in infancy. A parent is not liable upon any of those contracts which an infant may validly make for himself or in respect of any tort which he may commit; but, of course, the parent may have constituted the relationship of principal and agent, or of master and servant, with the child, and thus, since an infant can act as agent or servant, become liable by virtue of one of these relationships. Moreover, parents who give to their infant children, or allow them to use, dangerous toys, such as air-guns, with resulting damage, may find themselves held liable for their own negligence.
In general the consent of parents or guardians is required for the marriage of an infant,2 but our law lacks the courage of its convictions, since an infant's marriage contracted without such consent may nevertheless be valid.3
1 |
Guardianship of Infants Act, 1925. |
2 |
Marriage Act, 1949, Sect. 3 and Schedule 2. |
3 |
This is the view of the canon law, even since the Council of Trent. |
The French monarchy refused to accept the Tridentine decree on this point and acted with peculiar savagery against anyone who married a girl without her parents' consent; and the courts treated the marriage as tainted with violence and therefore void. See Colin et Capitant, TraitJ de Droit Civil (1957), i. 973. In England the requirement of consent is
4O THE LAW OF PERSONS
The picture in Roman law is very different. Within the family the paterfamilias enjoyed a lifelong despotism, tempered till the Empire by an obligation, in serious cases, to consult a family council, whose advice he was in no way bound to follow, and later, more effectually, by the criminal law. The paterfamilias could control a son of any age. He could forbid his marriage at any age: in the earlier classical law, and possibly later, he could compel him to divorce. In the Republic, and perhaps later, he could force a marriage on him.1 His children had no rights against him, and, though there was a shadowy condominium^ in historical times they could own no property, whatever their age: everything was his. A son was, in this matter, like a slave: all that he acquired vested in the father, except in the Empire his earnings, etc., on military service and in the later Empire his earnings in some other public services. It was not till the fifth century that ordinary acquisitions from outside benefited him in any way in law, and even then the father enjoyed them for his life. The son, like a slave, might have a peculium and the father's liabilities on the son's contracts were the same as those on a slave's. For delicts (torts) committed by the son the father was liable in classical law, with the right, similar to that in the case of a slave, of surrendering the son, i.e. letting the injured person take him as a quasi-slave, instead of paying the damages (noxal surrender). Tlie children of the son were in the potestas of the grandfather so long as he lived. Apart from noxal surrender and the position of her children, a daughter
normally observed as a result of the publicity ensured by the triple publication of banns of marriage or of the requirement of a sworn statement in the presence of a surrogate, in the case of marriages according to the rites of the Church of England, or of the requirement of a solemn declaration in writing in the case of a marriage solemnised on the authority of a superintendent registrar's certificate (Marriage Act, 1949,
ss.3, 16, 28).
1His power to compel him to divorce or to marry is denied by Volterra,
Revue Internationale des Droits de PAntiquitiy i. p. 213.
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was in much the same position, but her children were in the family group of their father. Further, in both cases, the father could at any moment end his rights and liabilities by emancipating the child, though the Praetor remedied this to some extent by giving the child so emancipated a certain right of succession. All this seems rather intolerable, but in practice it was not as harsh as it seems. To give the son a.peculium with power of administration was normal. The son was capable of civil rights and liabilities and could bring some actions, though the limits of this power were narrow. Emancipation was usual, and was often accompanied by a gift of money. In fact, it seems that by Justinian's time jiliifamilias were or might be practically independent as regards their finances, though this result is not fully stated in the texts.
It will be seen from what has been said that the position of the son in classical Roman law was, except that the relation was terminable at the discretion of the paterfamilias', very much that of the wife in the unadulterated common law; while, on the other hand, the wife, except in the ancient marriage with manus^ which put her in the position of a daughter, but was rare even in early classical law and totally obsolete in later law, was not for legal purposes a member of the family at all. This difference in the way of looking at the family relation is strongly brought out in the law of succession. This will be discussed later.1 It is worth mentioning here that while our earlier law gave the widow one-third of the personal property absolutely as against children and a life interest in one-third of the real property, the legislation of 1925 gave her a life interest in one-half of the whole property, real and personal. It may be that here our law learnt something from the Roman, for this is exactly the change made by Justinian in another connexion. When a father emancipated a son, the law of the late Empire before Justinian gave the father the right to
1 Pp. 183-185,/w/.
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THE LAW OF PERSONS |
retain absolutely one-third of those acquisitions from outside (bona adventitid) in which he had a life interest, but Justinian altered this to a usufruct, i.e. a life interest, in one-half.1
5. ADOPTION AND LEGITIMATION
Adoption in Roman law was a very ancient institution, having its roots in ancestor worship. The maintenance of the family sacra, observances in honour of the ancestors of the family, was regarded as of the highest importance, and when a man was old and was likely to die without issue to carry on these observances, he was allowed to 'adrogate* some other independent citizen, a paterfamilias, and thereby make him a son. But as this necessarily ended the familia of the adopted paterfamilias it was allowed only under the supervision of the civil and religious authorities, the latter, the pontifices, satisfying themselves that the provision was necessary, that it worked no injustice and that it left persons qualified to carry on the sacra of the family from which the adopted paterfamilias had sprung. This method of adoption continued in use throughout Roman history, and though the religious aspect of it had disappeared in later times, the control by the State was always preserved. But at some time early in the Republic another form of adoption was devised, by which Jiliifamilias in other families could be adopted. This had not necessarily any connexion with the sacra and was not supervised by the State, though there was a formal participation. Both brought the adoptatus into the family as a filius (or filid) familias exactly like any other child, except that, if the relation was terminated, as it might be, by emancipation, the Praetor did not interfere to give rights of succession as he did in the case of natural-born children so dealt with.
1 The claims of spouses and children as against wills excluding them will be more conveniently dealt with under the law of succession, pp. 167,
183 sqq.y post.
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Later law severely cut down the rights of the adrogator in the property which had belonged to the adrogatus^ and Justinian, in all cases of adoption of afiliusfamiliaswhere there was no close tie independent of the adoption, limited the effects of the adoption. There was no change of family and the adoptatus acquired only a right of succession on intestacy, with no ground of complaint if he was passed over in the will.
With these institutions in existence there was no great need for any system of legitimation, since a man, at least if he had no other children, could always adrogate his own illegitimate child. When the Empire became Christian a system of legitimation per subsequens matrirnonium was introduced, but only as regards children then born; it became ultimately a standing rule. The fifth and sixth centuries introduced other methods. They differed in their effects, into which it is impossible to go in detail,1 but some points must be stated. Till Justinian it was not allowed if there were any legitimate children, and in one of the methods in his time it was not allowed even then. If it was by subsequent marriage, or under petition in the father's will where circumstances had made the marriage impossible, e.g. the woman had died, the child was legitimated for all purposes. But if it was by another authorised method, i.e. per oblationem curiae, it was complete so far as the family itself was concerned, but created no relationship or rights as between the child so legitimated and remoter relatives of the father. It was of narrow scope. It seems
to have applied mainly, perhaps (notwithstanding loose language in some of the enactments) only, to children born of concubinage, which was a permanent connexion differing from marriage only in that there was no intent to be married. The woman must have been one whom the father could have married at the time of conception. Thus it did not apply to children born of incest or adultery, or to a
1 See, e.g., Buckland, Text-book, p. 128.
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child born of promiscuous intercourse, or, till very late, to a child by a slave woman, though some of these cases could be dealt with by adoption.1
The common law in its original home recognised, till recently, neither adoptio nor legitimatio as legal institutions. Both of them are however now admitted. A system of adoption was introduced by statute in 1926.2 But the system so introduced differs fundamentally from that of the Roman law, at any stage. There were however a few similarities. In adrogatio as in English adoption the approval of the State was needed: thus in Rome the supreme authority or a magistrate, and with us the court, has discretion to refuse to allow the adoption if in the circumstances it thinks it undesirable. The consent of persons interested is generally required in both systems.3 But here all resemblance ceased between the Roman institution and the English institution as originally established by the Act of 1926. There was, and is, no question in our law ofpatria potestas, and as the father has not the absolute ascendency of the paterfamilias', the consent of both parents is needed and also that of the adopter's spouse. Either parent can adopt and either spouse can adopt separately. No married person and no one over 21 can be adopted. It is essentially adoption of children. The adoption transfers the rights of the parents to the adopter but the rights transferred are merely those of custody and recovery, with the correlative duties of maintenance, education, and so forth. Until 1949, adoption affected no rights of property or succession: the adopted child gained no right of succession on intestacy in the new family, and
1 It is impossible to state the effect of this complex and copious legislation both shortly and correctly. See, for the full story, P. Meyer, Derrbmische
Konkubinat, pp. 125 sqq,
2 |
Adoption of Children Act, 1926 (16 and 17 Geo. V, c. 29). |
3 |
A further point of resemblance under the Act of 1926 (removed by |
that of 1958) was the requirement that, in general, such a difference of age was necessary that the adopter might have been the natural parent.
ADOPTION AND LEGITIMATION |
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retained those he had in the old, i.e. the main characteristic and purpose of Roman adoption did not appear at all in the English system. Moreover, it does not appear that it set up any quasi-blood relationship, such as it did in Roman law, so as to constitute a bar to marriage.1 However, the Adoption of Children Act, 1949,2 brought the English institution more in line with the Roman. It has, for instance, enacted that adoption shall bring the adopter and the adopted child, for purposes of marriage, within the prohibited degrees of consanguinity, and that this effect shall survive any further adoption of the adopted child by another person. Moreover, the Act assimilated adopted children to actual children for the purpose of the devolution or disposal of real and personal property; thus they have rights of succession on intestacy, and ordinarily the term 'children* will be held to apply to them when used in any instrument inter vivos or a will. Thus it is no longer possible to say that in our law the relationship of adopter to adopted child is little more than a special form of guardianship, as it was described to be by the Committee on Child Adoption, which recommended it ;3 it is contemplated that the adopted child should be assimilated, for most purposes, to an actual child of the adopter.
Legitimation was also introduced into our law by a Statute of i926.4This is a good deal more like the Roman institution in its rules and its effects, though unlike the Roman it now extends to children of an adulterous connexion. Like the Roman in its latest state it creates the same parental rights and duties as in the case of legitimate birth, though they are very different in the two cases. It gives the same rights of succession, both ways, as to all rights accruing after the date oflegitimation,* as the Roman
1 Clarke Hall, Law of Adoption, p. 37.
2Now replaced by the Adoption Act, 1958.
3Clarke Hall, cit. p. 36.
4Legitimacy Act, 1926, now amended by Legitimacy Act, 1959, s. 1.
5Except a dignity or title of honour, or any property settled to go with it.