Roman Law
11/5/2007
Outline

 

I. ORIGINS OF PROCEDURE

 

II. EXECUTION

 

III. MARRIAGE

 

 

 

 

 

 

 

 

 

IV. ILLUSTRATIVE PASSAGES

 

XII TABLES: PROCEDURE: MARRIAGE

 

sacramentum; iudicis postulatio

 

 

 

manus iniectio; pignoris capio

 

 

 

1.

Aquiring manus : Usu, farre(o); coemptione

2.

Conubium

3.

Consent

4.

Betrothal

 

Divorce

 

Power to punish one’s wife

 

1.

The Shield of Achilles (Il. 580ff):

And the people massed, streaming into the marketplace
Where a quarrel had broken out and two men struggled
Over the blood-price for a kinsman just murdered.
One declaimed in public, vowing payment in full.
The other spurned him, he would not take a thing.
So both men pressed for a judge to cut the knot.
The crowd cheered on both, they took both sides,
But heralds held them back as the city elders sat
On polished stone benches, forming the sacred circle,
Grasping in hand the staffs of clear-voiced heralds,
And each leapt to his feet to plead the case in turn.
Two bars of solid gold shone on the ground before them,
A prize for the judge who’d speak the straightest verdict.

 

2.

Story of Verginia(Livy 3.44ff).
Hard upon this followed the second crime, in Rome.  Its origin was lust, and in its consequences it was no less dreadful than the rape and suicide of Lucretia which led to the expulsion of the Tarquins.  The decemvirs, in fact, met the same end as the kings and lost their power for the same reason.  What happened was as follows: there was a girl of humble birth whom Appius wished to debauch; her father Lucius Verginius, who was serving with distinction on Algidus as a centurion, was a man with an excellent record in both military and civilian life, and his wife and children had been trained in the same high principles as himself.  He had betrothed his daughter to an ex-tribune named Lucius Icilius, a keen and proven champion of the popular cause.  This, then, was the girl -- at that time a beautiful young woman -- who was the object of Appius’s passion.  His attempts to seduce her with money and promises failed, so when he found her modesty proof against every kind of assault, he had recourse to a method of compulsion such as only a heartless tyrant could devise.  Taking advantage of her father’s absence on service, he instructed a dependent of his own, named Marcus Claudius, to claim the girl as his slave and to maintain the claim against any demands which might be made for her liberty.  One morning, therefore, when she was entering the Forum to attend the school, Claudius -- the decemvir’s pimp -- laid hands on her, and, asserting that she, like her mother before her, was his slave, told her to follow him, and threatened to take her by force if she refused.  The poor girl was dumb with fright, but her nurse shouted for help and a crowed quickly gathered; for as both Verginius and Icilius were well known and well liked, there were plenty of people to protect her; Claudius, however, called out that there was no need for the crowd to get excited, as what he was doing was perfectly legal.  He then asked Verginia to come before the court.  The bystanders advised her to comply with the request, and the two of them presented themselves at Appius’s tribunal.  The farce which Claudius then acted was of course familiar to the judge, who was, indeed, the author of it -- the girl, he said, had been stolen from his house, where she was born, and palmed off on Verginius as his daughter.  He had this on excellent evidence, and was prepared to prove it before any judge in the land -- even before Verginius, who had been worse used in the matter than himself.  Meanwhile Verginia -- the slave-girl -- was surely bound to go with her master.  Verginia’s advocates urged that her father was absent on national service; he could be home in two days if he were sent for, and it was unfair to involve a father in a law-suit about his children when he was not present to conduct his case; accordingly they asked that the hearing should be postponed till Verginius could return to Rome, and that meanwhile Appius, in accordance with the law he had himself sponsored, should grant the defendants custody and not permit a young woman to risk her reputation before her status in society was legally decided.  Appius prefaced his judgement by remarking that his championship of liberty was made plain enough by that very law which Verginius’s friends cited in support of their demand and added that it would prove a sure defence of liberty only if its application were fixed and invariable.  Anyone was entitled to bring an action, and in other cases in which people were claimed as free, the demand was legal; but in the present case, where the girl was subject to her father, there was nobody else to whom the master could surrender custody, and for this reason he gave judgement that the father should be sent for and that meanwhile the claimant -- Claudius -- should not relinguish his right but should take charge of the girl and promise to produce her in court when the person said to be her father arrived in Rome.  The judgemnt was patently unjust, but though there was plenty of mattering and indignation nobody ventured to speak openly against it.

3.

GI.1.108–16
Let us proceed to consider persons who are in manu, which is another right peculiar to Roman citizens. Now, while both males and females are found in potestas, only females can come under manus. Of old, women passed into manus in three ways, by usus, confarreatio, and coemptio. A woman used to pass into manus by usus if she cohabited with her husband for a year without interruption, being as it were acquired by usucapion of one year and so passing into her husband’s family and ranking as a daughter. Hence it was provided by the Twelve Tables that any woman wishing not to come under her husband’s manus in this way should stay away from him for three nights in each year and thus interrupt the usus of each year.  But the whole of this institution has been in part abolished by statutes and in part obliterated by simple disuse. Entry of a woman into manus by confarreatio is effected by a kind of sacrifice offered to Jupiter Farreus, in which a spelt cake is employed, whence the name confarreatio. In performance of this ceremony a number of acts and things are done, accompanied by special formal words, in the presence of 10 witnesses. This institution still exists at the present day. For the higher flamens, that is those of Jupiter, Mars, and Quirinus, and also the rex sacrorum, can only be chosen from those born of parents married by confarreatio; indeed, no person can hold the priesthood without being himself so married. Entry of a woman into manus by coemptio takes the form of a mancipation, that is a sort of imaginary sale: in the presence of not less than 5 witnesses, being Roman citizens above puberty, and of a scale-holder, the woman is bought by him into whose manus she is passing.

4.

Livy 4.9 (describing 443 B.C.)
Meanwhile a deputation arrived from Ardea.  The town was threatened with irretrievable disaster, and its people in the name of their ancient alliance with Rome, cemented afresh by the recent renewal of the treaty, were sending an urgent appeal for help. They could no longer enjoy the peaceful relations they had maintained with Rome owing to civil war … .
A young girl of humble birth and well known for her beauty had two rivals for her affections: one belonged to her own class and counted on the approval of her guardians who were of the same social standing; the other was a young nobleman, attracted solely by her physical charms.  The latter had support in his suit of the aristocratic interest, and the result was that the clash of political faction penetrated into the girl’s own household.  Her mother, who would have liked as splendid a match as possible for her daughter, preferred the nobleman; her guardians, who could not keep politics even out of match-making, held out, so to speak, for their own candidate.  The dispute continued and when it could not be settled within doors it was taken into court, where, the disputants having put forward their respective pleas, the magistrates gave judgment for the girl’s mother, permitting her to arrange her daughter’s marriage as she pleased.  Might, however, was stronger than right. …

5.

Gellius, NA 4.4
In the book to which he gave the title On Dowries Servius Sulpicius wrote that in the part of Italy known as Latium betrothals were regularly contracted according the following customary and legal practice.  ‘One who wished to take a wife,’ says he, ‘demanded of him from whom she was to be received a formal promise that she would be given in marriage. The man who was to take the woman to wife made a corresponding promise. That contract, based upon pledges given and received, was called sponsalia, or “betrothal.”  Thereafter, she who had been promised was called sponsa, and he who had asked her in marriage, sponsus. But if, after such an interchange of pledges, the bride to be was not given in marriage, or was not received, then he who had asked for her hand, or he who had promised her, brought suit on the ground of breach of contract. The court took cognizance of the case. The judge inquired why the woman was not given in marriage or why she was not accepted. If no good and sufficient reason appeared, the judge then assigned a money value to the advantage to be derived from receiving or giving the woman in marriage, and condemned the one who had made the promise, or the one who had asked for it, to pay a fine of that amount.
Servius Sulpicius says that this law of betrothal was observed up to the time when citizenship was given to all Latium by the Julian law. [90 B.C.]  The same account as the above was given also by Neratius in the book which he wrote On Marriage.”

6.

Gellius, NA 4.3.1.–.2
It is on record that for nearly five hundred years after the founding of Rome there were no lawsuits and no warranties [cautiones] in connection with a wife’s dowry in the city of Rome or Latium, since of course nothing of that kind was called for, inasmuch as no marriage were annulled [separated] during that period. Servius Sulpicius too, in the book which he compiled On Dowries, wrote that security for a wife’s dowry seemed to have become necessary for the first time when Spurius Carvilius, who was surnamed Ruga, a man of rank [vir nobilis], put away his wife because, owing to some physical defect, no children were born from her; and that this happened in the five hundred and twenty-third year after the founding of the city, in the consulship of Marcus Atilius and Publius Valerius [231 B.C.]  And it is reported that this Carvilius dearly loved the wife whom he divorced, and held her in strong affection because of her character, but that above his devotion and his love he set his regard for the oath which the censors had compelled him to take, that he would marry a wife for the purpose of begetting children.

7.

Cicero, Phil. 2.28.69
Illam suam res sibi habere iussit, ex duodecim tabulis clavis ademit, exegit. [If you move the first comma to a position after tabulis, we get a quite different meaning.]

8.

Plutarch, Romulus, 22.3
He also enacted certain laws, and among them one of severity, which forbids a wife to leave her husband, but permits a husband to put away his wife for using poisons, for substituting children, and for adultery.  [There are various suggestions on what the text actually says; the better mss. have kleidon not teknon upobole, i.e., substitution of keys, not children.]

9.

Dionysius of Halicarnassus 2.25: Romulan laws
Other offences, however, were judged by her relations together with her husband; among them was adultery, or where it was found she had drunk wine — a thing which the Greeks would look upon as the least of all faults.

 

 

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