Roman Law
11/5/2007
Outline
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IV. ILLUSTRATIVE PASSAGES
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XII TABLES:
PROCEDURE: MARRIAGE
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sacramentum; iudicis postulatio
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manus iniectio; pignoris capio
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1.
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Aquiring manus : Usu, farre(o); coemptione
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2.
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Conubium
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3.
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Consent
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4.
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Betrothal
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Divorce
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Power to punish one’s wife
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1.
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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.
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2.
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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.
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3.
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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.
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4.
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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.
…
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5.
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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.”
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6.
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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.
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7.
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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.]
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8.
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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.]
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9.
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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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