if she were dead. Banishment
operated as no impediment; if the woman wished to leave her husband
under these circumstances, her father could recover the dowry.[73]

A further confirmation of the power of the wife over her property is the
law that prohibited gifts between husband and wife; obviously, a woman
could not be said to have the power of making a gift if she had no right
of property of her own. The object of the law mentioned was to prevent
the husband and wife from receiving any lasting damage to his or her
property by giving of it under the impulse of conjugal affection.[74]
This statute acted powerfully to prevent a husband from wheedling a wife
out of her goods; and in case the latter happened to be of a grasping
disposition the law was a protection to the husband and hence to the
children, his heirs, for whose interests the Roman law constantly
provided.

Gifts between husband and wife were nevertheless valid under certain
conditions. It was permissible to make a present of clothing and to
bestow various tokens of affection, such as ornaments. The husband could
present his wife with enough money to rebuild a house of hers which had
burned.[75] The Emperor Marcus Aurelius permitted a wife to give her
husband the sum necessary to obtain public office or to become a senator
or knight or to give public games.[76] A gift was also legal if made by
the husband in apprehension that death might soon overtake him; if, for
instance, he was very sick or was setting out to war, or to exile, or on
a dangerous journey.[77] The point in all gifts was, that neither party
should become richer by the donation.[78]

Some further considerations of the relation of husband and wife will aid
in setting forth the high opinion which Roman law entertained of
marriage and its constant effort to protect the wife as much as
possible. A wife could not be held in a criminal action if she committed
theft against her husband. The various statements of the jurists make
the matter clear. Thus Paulus[79]: "A special action for the recovery of
property removed [_rerum amotarum iudicium_] has been introduced
against her who was a wife, because it has been decided that it is not
possible to bring a criminal action for theft against her [_quid non
placuit cum ea furti agere posse_]. Some--as Nerva Cassius--think she
cannot even commit theft, on the ground that the partnership in life
made her mistress, as it were. Others--like Sabinus and Procul