B Manus (marital subordination)
In early Roman law, most women entered their husband’s legal control when they married. This marital power was called manus (literally, “hand”) rather than potestas.
While not as extensive as the paterfamilias’ powers over his children, the husband’s authority over a wife under his legal power (in manu) were similar. A wiee in manu could not own property; any possessions she had when she married would henceforth belong to her husband (or to his paterfamilias, if he was still alive). She would inherit equally with her husband’s children under intestate succession. However, a husband did not have the “right of life and death” over his wife.6By the time of Augustus, “manus-marriage” had mostly disappeared [Iooper-Friedman 1987].7 Instead, almost all Roman women entered a form of marriage in which the wife remained under her father’s potestas, though she would leave her family’s home and live with her husband. Her children were in the potestas of their father (her husband), but she was still under patria potestas until her paterfamilias died, at which point she became sui iuris. The change in marriage form did not mean any more real legal independence for women, except that she might become sui iuris sooner, since fathers would probably die before husbands. Marriage without manus served the interests of a woman’s natal family, because if she remained under her father’s power, her property still legally belonged to him (just as his male children’s property did).
Because manus-marriage had disappeared hundreds of years before the Justinianic legal corpus was compiled, our only description of it in the legal sources is found in the Institutes of Gaius, written in the second century:
Gaius, Institutes I.109: But indeed, both males and females are accustomed to be in potestas; however, only women come into manus. 110: Accordingly, in the past they used to come into manus in three ways: by usus, farreum and coemptio. 111: She who remained married for a year continuously would come into manus by usus; indeed, since she was taken by usus by means of yearly possession, she would cross over into her husband's familia and would obtain the place of a daughter.
Thus by the law of the Twelve Tables it was provided that, if a woman was not willing to come into her husband's manus in this way, she was to be away every year for a period of three nights, and in this way would interrupt the usus of each year. But this whole law has partly been abolished by legal enactments and partly has fallen into oblivion by its very disuse. 112: They come into manus by farreum through a certain kind of sacrifice, which is made to Jupiter Farreus; in which bread made of emmer grain (farreus) is employed, wherefore it is also called “sharing of emmer bread” (confarreatio); many things besides this are done and occur for the purpose of establishing this legal relationship, with certain solemn words and ten witnesses being present. This law is still in use in our own times: for the greater priests, that is, the priests of Jupiter, of Mars, and of Quirinus, and likewise the kings of sacred rites, are not chosen unless they were born from farreate marriage: for not even they are able to have their priesthood without confarreatio. 113: But they come into manus by coemptio through mancipation (mancipatio), that is, through a kind of imaginary sale. For after summoning not fewer than five Roman (male) citizens and also a scaleholder, the man “buys” the woman, and she comes into his manus'8A passage in the Roman historian Tacitus suggests that by the reign of Tiberius (14—37 C.E.), confarreatio was considered a cumbersome and undesirable procedure, and that it was difficult to find candidates for the position of flamen Dialis (a priesthood of Jupiter), whose parents were supposed to have been married by confarreatio:
Tacitus, Annales IV.16 (written early 2nd c.)
Around the same time, the emperor (Tiberius) made a pronouncement about choosing a flamen Dialis in place of the late Servus Maluginensis, and at the same time about approving a new law.
For (he said), by the ancient custom, three patricians born from parents married by confarreatio were nominated together, from whom one would be chosen. But there was not, as there once had been, a plentiful supply (of candidates), because the custom of marriage by confarreatio had been abandoned or retained only among a few. He adduced several reasons for this situation, the foremost being the indifference of men and women; added to that the difficulties of the ceremony which were deliberately avoided, and the fact that the man who obtained that priesthood would escape from paternal law and the woman (his wife) would enter the manus of the flamen. Thus (the rule) should be amended by a decree of the Senate or a law, just as Augustus had turned certain practices from their uncouth antiquity to present-day usage. Therefore, after deliberating the religious practices, it was decided to depart in no way from the custom of the flamens; but a law was passed by which the flaminica Dialis (would be) in the power (potestas) of her husband in regard to religious rites, but otherwise would act by the law common to (other) women. And the son of Maluginensis was appointed in place of his father.By Gaius' time manus-marriage by usus was obsolete, and marriage by confarreatio was probably entered into by only a few members of the elite, whose families customarily held the high priesthoods at Rome which required priests to be the children of confarreatio marriage.9 All references to manus-marriage in the jurists were deleted by the sixth-century editors of the Digest.