Gaius. Institutes. I.108-115

108. Nunc de his personis videamus, quae in manu nostra sunt. Quod et ipsum ius proprium civium Romanorum est. 109. Sed in potestate quidem et masculi et feminae esse solent; in manum autem feminae tantum conveniunt. 110. Olim itaque tribus modis in manum conveniebant: usu, farreo, coemptione.
111. Usu in manum conveniebat, quae anno continuo nupta perseverabat; quia enim velut annua possessione usucapiebatur, in familiam viri transibat filiaeque locum optinebat. Itaque lege duodecim tabularum cautum est, ut si qua nollet eo modo in manum mariti convenire, ea quotannis trinoctio abesset
atque eo modo cuiusque anni usum interrumperet. Sed hoc totum ius partim legibus sublatum est, partim ipsa desuetudine obliteratum est. 112. Farreo in manum conveniunt per quoddam genus sacrificii, quod Iovi Farreo fit; in quo farreus panis adhibetur, unde etiam confarreatio dicitur; complura
praeterea huius iuris ordinandi gratia cum certis et sollemnibus verbis praesentibus decem testibus aguntur et fiunt. Quod ius etiam nostris temporibus in usu est: Nam flamines maiores, id est Diales, Martiales,
Quirinales, item reges sacrorum, nisi ex farreatis nati non leguntur: Ac ne ipsi quidem sine confarreatione sacerdotium habere possunt. 113. Coemptione vero in manum conveniunt per mancipationem, id est per quandam imaginariam venditionem: Nam adhibitis non minus quam V testibus civibus Romanis
puberibus, item libripende, emit vir mulierem, cuius in manum convenit. 114. Potest autem coemptionem facere mulier non solum cum marito suo, sed etiam cum extraneo; scilicet aut matrimonii causa facta coemptio dicitur aut fiduciae; quae enim cum marito suo facit coemptionem, ut apud eum
filiae loco sit, dicitur matrimonii causa fecisse coemptionem; quae uero alterius rei causa facit coemptionem aut cum viro suo aut cum extraneo, velut tutelae evitandae causa, dicitur fiduciae causa fecisse coemptionem. 115. Quod est tale: Si qua velit quos habet tutores deponere et alium nancisci, illis auctoribus coemptionem facit; deinde a coemptionatore remancipata ei, cui ipsa velit, et ab eo vindicta manumissa incipit eum habere tutorem, a quo manumissa est; qui tutor fiduciarius dicitur, sicut inferius apparebit. 115a. Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio: Tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent
remancipataeque et manumissae fuissent; sed hanc necessitatem coemptionis faciendae ex auctoritate divi Hadriani senatus remisit. * 115b. fiduciae causa cum viro suo fecerit coemptionem, nihilo minus filiae loco incipit esse: Nam si omnino qualibet ex causa uxor in manu viri sit, placuit eam filiae iura nancisci.

Gaius. Institutes. I.108-115

108. Now let us consider the position of those persons who are in marital power, which is a right peculiar to Roman citizens. 109. But, though persons of both sexes may be in power, women only are subject to marital power. 110. Formerly they might fall under this power in one of three ways, viz., by use, by the ceremony of the spelt cake, and by fictitious purchase. 111. Use brought a woman under the marital power when she continued as a married to occupy her husband's house for a whole year without interruption, for she was then, as it were, acquired by uninterrupted user through one year's possession, passing into her husband's family and filling the place of a daughter. And, therefore, the Twelve Tables provided that if she was unwilling to fall in this way under the marital power of her husband, she should absent herself three nights every year,* (Table VI.4) and thus the acquisition by use of each year would be interrupted. But these regulations have been abolished, partly by legislation and partly by disuse. 112. Marital power results from the ceremony of the spelt cake by way of a kind of sacrificial offering to Juppiter Farreus in which spelt cake is used, and hence the ceremony is also called marriage by the spelt cake. Besides this, many other things are done and observances gone through, with a set form of solemn words, in the presence of ten witnesses, for the purpose of carrying out this form of proceeding; and this rite is practiced, even in our times; for the greater flamens, the priests of Jupiter, Mars, and Quirinus, as also the sacrificial priests, unless they are the issue of a marriage by the spelt cake ceremony, cannot be selected, nor can they hold office unless their own marriage was contracted in the same way. 113. Women fall under marital power through a fictitious purchase made by means of the process of formal conveyance, that is, a kind of imaginary sale, in which, in the presence of not less than five witnesses, Roman citizens, above the age of puberty, and a scale bearer, the husband buys the woman, who falls into his marital power. 114. But a woman may go through the fictitious purchase, not only with her husband, but also with a stranger, and hence it is said that the fictitious purchase may be made either for a matrimonial or fiduciary purpose; for a woman who goes through the fictitious purchase with her husband in order that she might stand related to him as a daughter, is said to have gone through the ceremony for a matrimonial purpose, whereas she who goes through the fictitious purchase with her husband, or with a stranger for some other object, is said to have gone through the fictitious purchase for a fiduciary purpose, as for example to escape from guardianship. 115. And this is effected thus: if a woman desires to set aside her present guardians in favor of others, she goes through the forms of the fictitious purchase by the authority of these guardians, and then she is again formally sold by the fictitious purchaser to him whom she wishes to have as guardian, and being released from power by the process of fictitious vindication by this last person, he becomes her guardian, and is called a fiduciary guardian, as will appear below (cf. 195a). 115a. Formerly a fiduciary fictitious purchase was resorted to for the purpose of making a testament. For, at that time, with exception of certain persons, women had not the right of making a testament unless they had gone through the fictitious purchase, and had been again formally sold, and afterwards released from power. But in the reign of the late Emperor Hadrian, the senate dispensed with the necessity of going through the fictitious purchase . . . (two lines illegible). 115b. But, though the woman has gone through a fictitious purchase with her husband for a fiduciary purpose, nevertheless, she, from that time, occupies the place of a daughter, for no matter what may be the reason which has brought the wife under the marital power of her husband, it is settled that her rights which then commence are those of a daughter.