Roman Law – Outline and Materials 10/27/2020 Page 1 MARRIAGE, DIVORCE, BETROTHAL, DOWRY – OUTLINE (The primary sources referred to in this outline are attached, and cited in the outline as ‘Mats.’ with a hyperlinked number (easier to pull up with a right click) indicating where they appear. Clicking on the heading of the item in the Mats. will, in most cases, bring you back to where you were in the outline.) 1. Marriage and family temp XII. I’m going to take the topics in Watson’s order. Manus. The fullest account that we have is in GI.1.108–16: (Mats. 1). a. Many Roman authors wax eloquent about manus and the archaic family, none more so than Dionysius of Halicarnassus who was not a Roman, but a Greek, who wrote in Greek a book called Roman Anquities 2.25 (Mats. 2). This passage will be needed to support a number of points later on. b. Acquisition of manus. Usu, farre(o), coemptione. Watson’s argument that this is a provision in the XII seems to me to be plausible. The argument for it is that the classical sources always mention it in in this order and there’s no logic to the order. That the most recent edition of the XII rejects the argument on the ground that there is no evidence that coemptio had this technical meaning at this time does not seem to me to be very powerful. c. Confarreatio, coemptio, usus – individually. Unless Watson is right that the three means of acquiring manus were in the XII Tables, the only provision about manus in the XII Tables is in tab. 5.5 (Mats. 3), and our evidence for it is Gaius. d. Requirements for marriage sine manu. Compare the man who fell into the Tiber (Digest 23.2.5–7, in Lecture 06). Watson takes the position that he takes elsewhere that this tab. 5.5 indicates a formless marriage – we may have our doubts. 2. Requirements for and consequences of marriage a. Conubium. (Side note on the derivation (cum + nubo) and the gender-differentiated phrases “to marry.”) The prohibition on intermarriage between patriian and plebeian in tab. 12.1 (Mats. 4), repealed by the l. Canuleia (445 BC). All of sources report this story. There must be something to it. Watson’s guess about an original unified town with a class development sounds a little too modern to me. At least in historical times the plebs were associated with gentes. His notion that the problem was nouveaux riches also sounds a bit modern. How about an ethnic distinction that grew into an economic one; then we can add changes in fortune as the thing that is producing the pressure. Latins (Rape of the Sabines); how about the Etruscans? Slaves. Incest. Livy frag. bk. 20 “Publius Celius, the patrician, was the first to take a wife within the seventh degree of relationship, contrary to the old custom.”1 (?mid–3 c. BC, Mats. 5) Age. No reason to believe that it was not as in classical times. 1 Publius Celius patricius primus adversus veterem morem intra septimum congnationis gradum duxit uxorem. Roman Law – Outline and Materials 10/27/2020 Page 2 b. Consents. W’s assertion that no consent was necessary other than the father’s for the girl in power may or may not be right. Some evidence of the complexity may be found in Livy’s account (4.9) of the ‘Maid of Ardea’ (443 BC, Mats. 6): I agree with Watson that the ‘Maid of Ardea’ is not an aetiological myth, nor is it a paradigm case. It does have some interesting legal points, and they are accurate for Livy’s time. Whether they are accurate for the 5th century BC is more problematic, but there is no reason to doubt them. The remedy is a problem. Girl’s consent. Boy’s consent. c. Potestas over children is clearly a consequence of iustae nuptiae. Husband’s obligation of support? We don’t know; no evidence of it. d. Sui heredes – we’ll get to this more explicity later, but we take up here a problem that Watson deals with here: Table IV.4 (Mats. 7) is derived from Aulus Gellius, Attic Nights 3.16.12 (Mats. 8) (Side note: Aulus Gellius died in 175; so he’s an almost exact contemporary of Gaius.): What is frequently given as the text of tab.4.4 is misleading. Gellius is describing a judgment that Hadrian had rendered: What Gellius says that is taken as the text of tab. 4.4 is: “ . a woman . had given birth in the eleventh month after her husband’s death, and a case was brought as if she had conceived after her husband’s death, because the decemuiri wrote that man (homo) is born in ten months, not in the eleventh.” But if you read the whole passge, it’s clear that Hadrian came out the other way. Some help as to what was in the original text and what was made of it later on is given in a passage from the Digest that Watson cites (p. 40 n. 2): Digest 38.26.3.9,11 (Mats. 9). Possibly relevant here is the required mourning period for widows (tempus luctus), 10 months = the old Roman year, extended in the classical period to one modern calendar year. 3. Betrothal. Our key text here is Aulus Gellius, Attic Nights 4.4 (Mats. 10). The Servius to which the passage refers is Servius Sulpicius Rufus, the jurist who was a contemporary of Cicero. Clearly in classical Roman law a contract (sponsio) of betrothal was not actionable unless a penal bond was attached. How much of this can be traced back? That the sponsio was actionable is suggested both by Servius and by the provision of the XII dealing with the sponsio. That it was for a fixed sum (certa) seems to me to be unlikely. In addition to Watson’s essentially negative argument, see the nature of the iudicis postulatio. The penal bond became a requirement with the growth in feeling about the immorality of the action for breach. 4. Divorce. The key text here is also Aulus Gellius, Attic Nights 4.3.1.–.2 (Mats. 11; also Dionysius of Halicarnassus, Roman Anquities 2.25 [Mats. 2]; the divorce of Carvilius Ruga. a. Some points are reasonably clear: i. In classical Roman law divorce was common, but the Romans remembered a time when it was not. ii. In classical Roman law the wife who was not at fault was given an action to recover her dowry and a promise to indemnify (cautio) was common to secure it. If she was at fault – and this generally meant adultery – the husband retained the dowry. Roman Law – Outline and Materials 10/27/2020 Page 3 b. The question again is how much of this can be referred back to XII? Our key text, unfortunately, is a joke, Cicero making fun of Mark Antony’s dismissal of his mistress: i. Cicero, Phillipics 2.28.69: “He ordered her to have her things for herself in accordance with the XII Tables took back the keys drove her out.”2 (The absence of punctuation is deliberate; much hangs on where one puts the comma.) (Mats. 12) Tab. 4.3 may have contained a reference to keys, also found in the leges regiae (Plutarch, Romulus 22.3, Mats. 13). This suggests a role for women. ii. Even if the specifics about the repudiation were not in the XII Tables, there clearly was a provision in them that said that there had to be a repudiation. Gaius, D.48.5.44 (Mats. 14); Gaius, D.24.2.2 (Mats. 15). iii. As for “take your things for yourself” (res tuas tibi habeto) it must be old; how could a society thinking of manus develop it? iv. If the story of the divorce of Carvilius is right in outline if not in detail how was the dowry handled? In the case of divorce for cause probably as in later times, i.e., the husband got it. But if the story of Lucretia is right, the woman’s family may have had something to say about it (Mats. 16). The broad nature of the ‘family court’ is also suggested in Dionysius of Halicarnassus, Roman Antiquities 2.25 (Mats. 2): “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.” c. Legal actions on dowry are later, but the institution exists. Roman Antiquities, 2.10 (Mats. 17): Romulan laws, “It was the duty of clients to assist their patrons in providing dowries for their daughters upon their marriage if the fathers had not sufficient means.” (We’ll return to this passage when we take up patronage.) 2 Illam suam res sibi habere iussit ex duodecim tabulis clavis ademit exegit. Roman Law – Outline and Materials 10/27/2020 Page 4 MATERIALS ON MARRIAGE, BETROTHAL, DIVORCE, DOWRY 1. Gaius, Institutes 1.108–116:3 108. Let us proceed to consider persons who are in manu (hand, marital power), which is another right peculiar to Roman citizens. 109. Now, while both males and females are found in potestas, only females can come under manus. 110. Of old, women passed into manus in three ways, by usus, confarreatio, and coemptio. 111. 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 a usucapion of one year and so passing into her husband’s family and ranking as a daughter.