If the wife was subject to the power of her father, she required his sanction before she could make a coemption with her husband. If the wife was independent of parental control, she required the sanction of her guardians, who under the old law would have been her nearest agnates.
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, § 27. ‘Juristic ingenuity invented coemptions with aged men for extinguishing sacred rites.’ Savigny (Verm. Schr. 1, 190) 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. He 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. 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 heir to bear the infamy of bankruptcy instead of the deceased testator, 2 § 154. Universal succession was an institution which Roman law only admitted in certain cases, 2 § 98, including the cases of Manus and Adrogatio. 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. (Comments of other modern writers on this subject are noticed in Roby’s Roman Private Law, 1, 71, n. 1.)
At other times Coemption was employed to enable a woman to select a guardian, §§ 115, 195 a. Cic. Pro Murena, 12 § 27. ‘There are many wise legal provisions that juristic ingenuity has defeated and perverted. All women on account of their weakness of judgement were placed by our ancestors under a guardian’s control: jurists invented a kind of guardian subject to female dictation.’ (Cf. Sohm, 103, n. 2.)
The latest employment of Coemption enabled a woman to break the ties of agnation and thus acquire testamentary capacity, § 115 a; Cic. Top. 4, 18. 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 filiafamilias: 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, 166, her statutory guardian (tutor legitimus), 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 guardian, though still required as a formality, could be extorted, if not yielded voluntarily, by appeal to the magistrate, § 190.
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 have had little more than a life interest until she acquired 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, by exclusion from the comitia: and after the introduction of the mancipatory will she was still barred 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 guardian for these proceedings could be extorted, § 190, 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; 2 §§ 112, 118; though it had probably been previously a mere formality (the woman having power to extort at pleasure the auctoritas of the agnatic guardian) even before the time of Claudius. As we learn from the text coemption had not been required previously in the case of certain privileged women. Cf. §§ 145, 194; 3 § 44; Ulp. 29, 3.
§ 114. Fiducia was a declaration of the trusts of a mancipation, by which the party to whom the mancipation was made undertook to remancipate under certain conditions. Besides its use in coemption, it was employed, as we shall see presently, in emancipation and adoption, and was the earliest form of constituting the contracts of deposit and mortgage, 2 §§ 59, 60; 3 §§ 90, 91, comm.
The pactum fiduciae, or agreement by which the conditions or trusts were defined, must not be identified with nuncupatio. Nuncupatio forms an integral part of Mancipatio, and what was declared in it would constitute a title under the law of the Twelve Tables. Pactum fiduciae, on the other hand, never coalesces with Mancipatio, but remains a separate adjunct, originally only morally binding on the transferee, but afterwards forming an obligation of jus gentium, and affording ground to support a bonae fidei actio. Herein Mancipatio is contrasted with Tradition and the dispositions of natural law. Conventions accompanying Tradition unite with it, and form a single consolidated disposition; and the pacts annexed (pacta adjecta) to any contract of natural law (venditio, conductio, mandatum, &c.) become integral parts thereof, and are enforced by the action brought on the principal contract. Stipulatio, as a civil disposition, seems to have originally resembled Mancipation in this respect: at least it was a late period of the law when the rule was clearly established that: Pacta incontinenti facta stipulationi inesse creduntur, Dig. 12, 1, 40, i. e. Pacts made contemporaneously with a stipulation are deemed to be portions of the stipulation. Savigny, § 268. It is true that a Pactum adjectum respecting interest and annexed to the gentile disposition Mutuum could not be enforced by an action brought upon the Mutuum: but that was a consequence of the nature of the action (condictio certi) whereby Mutuum was enforced, and which could not embrace any sum beyond the original subject of the Mutuum; 3 §§ 90, 91, comm.
DE MANCIPIO.
§ 116. It remains to examine what persons are held in mancipation.
§ 117. All children, male or female, in the power of their father are liable to be mancipated by their father just as his slaves may be mancipated.
§ 118. A woman in the hand is subject to the same mode of alienation, and may be mancipated by the person who has acquired her by coemption just as a daughter may be mancipated by her father: and although the acquirer of her by coemption otherwise than for the purpose of marriage has not the power of a father over her, nevertheless, though he is not