Women and the Law:
The Roman Foundation
Selections
Egnatius Metellus [1] ... took a cudgel and beat his wife to death because she had drunk some wine. Not only did no one charge him with a crime, but no one even blamed him. Everyone considered this an excellent example of one who had justly paid the penalty for violating the laws of sobriety. Indeed, any woman who immoderately seeks the use of wine closes the door on all virtues and opens it to vices.
There was also the harsh marital severity of Gaius Sulpicius Gallus. [2] He divorced his wife because he had caught her outdoors with her head uncovered: a stiff penalty, but not without a certain logic. 'The law,' he said, 'prescribes for you my eyes alone to which you may prove your beauty. For these eyes you should provide the ornaments of beauty, for these be lovely: entrust yourself to their more certain knowledge. If you, with needless provocation, invite the look of anyone else, you must be suspected of wrongdoing.'
Quintus Antistius Vetus felt no differently when he divorced his wife because he had seen her in public having a private conversation with a common freedwoman. For, moved not by an actual crime but, so to speak, by the birth and nourishment of one, he punished her before the crime could be committed, so that he might prevent the deed's being done at all, rather than punish it afterwards.
To these we should add the case of Publius Sempronius Sophus [3] who disgraced his wife with divorce merely because she dared attend the games without his knowledge. And so, long ago, when the misdeeds of women were thus forestalled, their minds stayed far from wrongdoing.
An excerpt from a speech of Marcus Cato [4] on the life and customs of women of long ago and on the right of the husband to kill a wife caught committing adultery.
(1) Those who have written about the life and culture of the Roman people say that women in Rome and Latium 'lived an abstemious life', which is to say that they abstained altogether from wine, called temetum in the early language and that it was the custom for them to kiss their relatives so they could tell by the smell whether they had been drinking. [5] Women, however, are said to have drunk the wine of the second press, raisin wine, myrrh-flavoured wine and that sort of sweet drink. This things are found in these books, as I said, but Marcus Cato reports that women were not only judged but also punished by a judge as severely for drinking wine as for committing adultery.
I have copied Cato's words from a speech called On the Dowry, in which it is stated that husbands who caught their wives in adultery could kill them: 'The husband', he says, 'who divorces his wife is her judge, as though he were a censor; [6] he has power if she has done something perverse and awful; if she has drunk wine she is punished; if she has done wrong with another man, she is condemned to death.' It is also written, regarding the right to kill: 'If you catch your wife in adultery, you can kill her with impunity; she, however, cannot dare to lay a finger on you if you commit adultery, nor is it the law.'
The jurist Gaius (his family name and origin are unknown) was active as a teacher of law in the second century A.D. (150-180). Although he was apparently not one of the influential jurists of his own day, his work as a teacher and writer was much valued in the post-classical period. His Institutes is especially important since it has survived more or less in its original form and, as the basis for Justinian's Institutes, exerted a tremendous influence on later legal education in Europe.
By the time Gaius was writing, guardianship of women was a mere form, and by the reign of Constantine (306-337), it had vanished altogether.
(144) Where the head of a family has children in his power he is allowed to appoint guardians for them by will. That is, for males while under puberty but for females however old they are, even when they are married. For it was the wish of the old lawyers that women, even those of full age, should be in guardianship as being scatterbrained. [7] (145) And so if someone appoints a guardian in his will for his son and his daughter and both of them reach puberty, the son ceases to have a guardian but the daughter still continues in guardianship. It is only under the Julian and Papian-Poppaean Acts that women are released from guardianship by the privilege of children. We speak, however, with the exception of the Vestal Virgins, whom even the old lawyers wished to be free of restraint in recognition of their priesthood; this is also provided in the Twelve Tables.
(190) There seems, on the other hand, to have been no very worthwhile reason why women who have reached the age of maturity should be in guardianship; for the argument which is commonly believed, that because they are scatterbrained they are frequently subject to deception and that it was proper for them to be under guardians' authority, seems to be specious rather than true. For women of full age deal with their own affairs for themselves, and while in certain instances that guardian interposes his authorisation for form's sake, he is often compelled by the praetor to give authorisation, even against his wishes. (191) For this reason, a woman is not granted any action against her guardian on account of the guardianship; but where guardians are dealing with the affairs of male or female children, when the wards grown up the action on guardianship calls the guardians to account.
(108) Now let us examine persons who are subordinate to us in marriage. [8] This is also a right peculiar to Roman citizens. (109) While it is customary for both men and women to be in power, only women fall into marital subordination. (110) Formerly there used to be three methods by which they fell into subordination: by usage, by sharing of bread, and by contrived sale. [9] (111) A woman used to fall into marital subordination by usage if she remained in the married state for a continuous period of one year: for she was, as it were, usucapted by a year's possession, and would pass into her husband's kin in the relationship of a daughter. The Twelve Tables therefore provided that if any woman did not wish to become subordinate to her husband in this way, she should each year absent herself for a period of three nights, and in this way interrupt the usage of each year. [10] But this whole legal state was in part repealed by statute, in part blotted out by simple disuse.
(112) Women fall into marital subordination through a certain kind of sacrifice made to Jupiter of the Grain, [11] in which bread of coarse grain [12] is employed, for which reason it is also called the sharing of bread. Many other things, furthermore, have to be done and carried out to create this right, together with the saying of specific and solemn words in the presence of ten witnesses. This legal state is still found in our own times; for the higher priests, that is the priests of Jupiter, of Mars, and of Quirinus, as also the Sacred Kings, [13] are chosen only if they have been born in marriage made by the sharing of bread, and they themselves cannot hold priestly office without being married by the sharing of bread.
(113) Women fall into marital subordination through contrived sale, on the other hand, by means of mancipation, that is by a sort of imaginary sale; for in the presence of not less than five adult Roman citizens as witnesses, and also a scale-holder, the man to whom the woman becomes subordinate 'buys' her. (114) A woman, however, can make a contrived sale not only with her husband, but also with a third party. A contrived sale is indeed said to be made either for the purpose of marriage or of a formal trust. For when she makes a contrived sale with her husband, so as to take the status of a daughter, she is said to have made a contrived sale for the purpose of marriage. On the other hand, the woman who makes a contrived sale for some other purpose, whether with her husband or with a third party-for instance, for the purpose of evading a guardianship-is said to have made a contrived sale for a fiduciary purpose. (115) This last is as follows: if a woman wishes to set aside the guardians she has and to get another, she makes a contrived sale of herself with their authorisation; then she is remancipated by the other party to the contrived sale to the person whom she wishes, and, when she has been formally manumitted by him, she comes to have this man as guardian. He is called the 'fiduciary guardian' as will appear below. (115a) Formerly a contrived sale used also to take place for the purpose of making a will; for at one time women, with certain exceptions, had no right to make a will unless they had made a contrived sale and been remancipated and manumitted. But, on the proposal of the late emperor Hadrian, the Senate remitted this requirement of making a contrived sale. [A woman who makes a fiduciary contrived sale with an outsider does not stand as a daughter to him, but (115b) she who] makes a contrived sale with her husband for a fiduciary purpose nevertheless comes to stand as a daughter. For if for any reason at all a wife should become subordinate to her husband, the received opinion is that she acquires the rights of a daughter.
(116) It remains for us to describe what persons are in bondage. [14] (117) All children, whether male or female, who are in the power of their father can be mancipated by him in the same way as slaves can. (118) The same rule applies to persons in marital subordination; for women can be mancipated by the other parties to the contrived sale in the same way as children by their father. This is so to the extent that, although she stands as a daughter to the other party only in that she is married to him, yet when she is not married and therefore does not stand as a daughter to the other party, she can nevertheless be mancipated by him. ...
(136) [Moreover, women who fall into marital subordination cease to be in the power of their father. But for those married by sharing of bread as the wife of a priest of Jupiter,] it is provided [by a resolution of the Senate moved by] Maximus and Tubero that such a woman is regarded as being in marital subordination only so far as religious observances are concerned; in other matters, on the other hand, she is viewed just as if she had not fallen into marital subordination. However, women who have fallen into subordination by a contrived sale are freed from their parent's power; nor does it matter if they are subordinate to their husband or to some other person, although only those women who are subordinate to a husband are viewed as standing to him as a daughter.
(137) [Women cease to be in marital subordination in the same ways as daughters are freed from paternal power. Just as daughters emerge from power by one mancipation so, by one mancipation, do women] cease to be subordinate; if such women should be manumitted after that mancipation they are made independent. [15] (137a) [The difference between a woman who has made a contrived sale with a third party and her who has made one with her husband is that the former can compel the other party to remancipate her to whomever she wishes, but] the latter can no more compel [her husband] [to do this] than can a daughter her father. A daughter certainly cannot in any matter compel her father, even if she is an adoptive daughter; but once a woman has sent notice of divorce, she can compel her husband just as if she had never been married to him.
1. In Romulus' day.
2. Consul in 166 B.C.
3. Consul in 268 B.C.
4. Marcus Porcius Cato 'Censorius'-Cato the Elder (234-149 B.C.). He was the quintessential conservative and champion of traditional morality. Among his acts as censor in 184 B.C. was the taxation of luxury. He deplored and fought vainly against the acceptance of anything Greek into Roman life.
5. On the prohibition see [Bettini, Forthcoming #136].
6. The magistrate whose jurisdiction include public morals and the leasing of public buildings and spaces.
7. Translates propter animi levitatem, literally "on account of lightness of the mind".
8. Marital subordination translates quae in manu nostra sunt.
9. Respectively usus, confarreatio, and coemptio.
10. By this method, the woman did not free herself from the power of her husband but avoided entering it at all and instead remained in the power of her father, at his command, or, if she had been emancipated or her father was dead, her own. Cf. no. 000.
11. Jupiter Farreus.
12. Spelt.
13. Rex sacrorum.
14. In mancipio.
15. Sui iuris.
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