CASE 38: The Wife's Property
Gaius, Institutiones 2.98
Si cui heredes facti sumus, sive cuius bonorum possessionem petierimus, sive cuius bona emerimus, sive quem adoptaverimus, sive quam in manum ut uxorem receperimus, eius res ad nos transeunt.
Cicero, Topica 23
Cum mulier viro in manum convenit, omnia quae mulieris fuerunt viri fiunt dotis nomine.
(Gaius in the second book of his Institutes)
If we are made heirs to someone or sue to acquire a (deceased) person’s estate or buy an (insolvent) person’s estate or adopt someone or take a woman into manus as a wife, that person’s property passes to us.
(Cicero in his Topics)
When a woman comes into her husband’s manus, everything that belonged to the woman becomes her husband’s as a dowry.
1. “All Her Property.” Gaius is firm in stating that when a sui iuris woman enters into a manus marriage, all her property becomes her husbands.
More precise is Gaius, Inst. 3.83: “For when... a woman enters into manus, all her property both incorporeal and corporeal, as well as what is owed to her,... is acquired for (her husband), except for those things lost through her change of (family) status”; see also 3.84 and 4.38 (creditor protections preventing her marriage from discharging her prior obligations). This would seem to indicate that she loses the property utterly. By contrast, Cicero, writing in the late Roman Republic, speaks of this property becoming her dowry; this should mean that she can recover the property if, for instance, the marriage ends through her husbands death. Is this possibly a historical development related to the decline of manus marriage? If so, why would Gaius (writing ca. A.D. 150) retain the older view?2. Dowry for Women in Manus Marriages. The historical process whereby dowry developed is poorly known, although most of the basic elements were probably in place by the mid-second century B.C. In 230 B.C. a Roman senator named Sp. Carvilius Ruga divorced his wife because she had not born him a child and was apparently sterile. The marriage evidently was with manus. It was hotly disputed whether Ruga’s excuse was acceptable; but the more important point is that he seems to have succeeded in retaining his wife’s dowry. This should indicate that in manus marriages the dowry belonged outright to the husband unless the giver (the wife’s family) had received a specific promise of its return, a point that was made two centuries later by the jurist Servius (whose views are reported in Gellius, Noctes Atticae 4.3.2). Eventually the return of dowry became a right that the woman (or her family) could sue for (see Case 82).