Chapter 2 Persons

The law of persons and family is an important component of the threefold division of Roman private law set out in the Institutes of Gaius. In a legal order such as that of the Romans, this branch of law fulfilled an important function.

Inst.Gai.L8. The whole of the law we observe relates either to persons or to things or to actions. Let us first consider persons. [translation: Handouts]

There is a person-focused quality to the ordering of these concepts. Central to the law was the 'person', followed by his things and thereafter his actions. But who was a 'person' for the purposes of the law? In Roman law, which was a patriarchal system, the most important 'person' in law was the head of the household (the paterfamilias), since it was from his domestic power over the familia, which had arisen during the time of Romulus, that most of the law of persons and family developed. As we shall see, the head of the household was the main actor in this branch of law and had the most complete 'status' for the purposes of the law.

Prior to 212 CE, when most free inhabitants of the Roman Empire were granted citizenship by an imperial decree of the Emperor Caracalla, Roman law applied only to those who held Roman citizenship (or who had been granted a special dispensation). In the context of the law of persons and family, therefore, the Roman legal mind made a connection between persona and citizenship. To phrase it differently, the Roman law of persons and family applied only to those people who were regarded by the legal order as 'persons', and to be regarded as such one needed to hold Roman citizenship.

Not all people were deemed 'persons' for the purposes of Roman law. As mentioned above, before 212 CE Roman law linked personality and citizenship. Thus, anyone who did not have Roman citizenship did not benefit from this branch of the law. One group of human beings in particular was completely excluded from the working of the law of persons and family: slaves. A unique duality exists in relation to the status of slaves in Roman law. On the one hand, they are described by Gaius as personae (no doubt reflecting the many different shades of meaning of this term), but on the other hand they were completely excluded from the operation of the law of persons and treated as objects (movable property, as we shall see in Chapter 3) which could be sold or bartered. The exclusion of slaves from the ambit of the law of persons and family can be seen from Gaius' statement in which he sets out the primary division:

Inst.Gai.L9. The primary division of the law of persons is that all men are either free or slaves. [translation:

Handouts]

Following this statement about the division, Gaius only really deals with free Roman citizens in the context of his discussion of the Roman law of persons and family. Slaves are rarely mentioned and then only to the extent that they affect the rights of citizens (e.g. through their wrongdoing for which the owner was legally liable). It is clear that slaves existed in a grey area between a 'person' and a 'thing' for the purposes of law. One thing is clear, though, slaves had very limited access to the law of persons and family.

D.50.17.209 (Ulpian, Lex Iu/ia et Papia, book 4). We can say that enslavement is almost like death. [translation: Handouts]

In a certain sense, this was true. Being a slave meant that the entire law of persons and family was unavailable to them. They had no rights (to use modern terminology) under Roman private law, as Ulpian observes:

D.50.17.32 (Ulpian, Sabinus, book 43). As far as the civil law is concerned, slaves have no rights but this is not true for natural law since where natural law is involved, all men are equal. [translation: Handouts]

By becoming a slave, one lost liberty, the principal factor distinguishing a person from an object. Liberty, combined with citizenship and your place in the fami/ia, were grouped together by the Roman jurists under the heading of 'legal status' (caput in Latin). 'Legal status' was not fixed, but could change with one's circumstances. Take the following statement by the third-century jurist, Paul:

D.4.5.11 (Paul, Sabinus, book 2). There are three kinds of change of status (capitis deminutio), the greatest (maxima), the middle (media) and the least (minima) since there are three things we have - liberty, citizenship and family. So when we lose all of these, that is liberty and citizenship and family, this is held to amount to capitis deminutio maxima. When we lose citizenship but keep our liberty this is capitis deminutio media. When we keep both liberty and citizenship but change our family position, this is capitis deminutio minima. [translation: Handouts]

This meant that a person's status and thus his legal personality essentially operated on a sliding scale between two extremes of 'person' and 'thing'.

The fundamental distinction drawn by the jurist Gaius in his textbook is between those who are free and those who are slaves. The main sources of slaves in the classical period of Roman law were prisoners of war who were sold at slave auctions conducted throughout the Empire and children born from slave mothers who became the property of the owner of the slave.

Agathos Daemon, the Son of Dionysius and Hermione, who resides in the city of Oxyrhynchus, by this document acknowledges to Gaius Julius Germanus, son of Gaius Julius Domitianus, that he accepts as valid the handwritten sales contract which they made concerning the female slave Dioscorous, about twenty-five years old and without distinguishing marks [i.e. scars]. Julius Germanus took possession of her from Agathos Daemon just as she was. She is nonreturnable, except for epilepsy or external claim. The price was 1200 drachmas of silver which Agathos Daemon received in full from Julius Germanus when the handwritten sales contract was made out. For this amount Julius Germanus paid the sales tax on the aforementioned slave. A warranty on this slave has been given by Agathos

Daemon according to all claims made in the sale contract.

(P.Oxy. 95) [translation: Shelton §200]

Notice how in this contract of sale, the parties took great care to identify the slave and to state her age and distinguishing marks. This served to identify the object of sale as required by law. Also, notice how the requirements of the law have been included as contractual terms (nonreturnable except for epilepsy or external claim). I will return to this matter in more detail in my discussion of the law of contracts.

The Roman law of slavery is unique for at least two reasons. First, the Romans enshrined the position of the slave in law. They did not need to do so: many ancient societies of the same period practised slavery without giving it legal foundation. Nor did anyone really ask them to justify it legally. The discussions concerning the legal foundations of slavery are most probably related to the rise of concepts such as natural law during the classical period. Secondly, Roman slavery was not a permanent state.

My dear Marcus, with regard to Tiro, I swear by my hope to see you, and my son Cicero, and little Tullia, and your son, that you gave me the very greatest pleasure when you decided that he, who did not deserve this bad fortune, should be our friend rather than our slave. (Cicero, Ad familiares 16.16) [translation: Sheldon §227] (Compare the example of manumission recorded in a Roman will quoted in section 3.3 below)

The consequence of such a release depended on the way in which it had been done. On the one hand an official manumission could result in the slave acquiring a new status under Roman law (that of citizen), on the other hand an informal mode of manumission might give him only lesser rights (the Lex Aelia Sentia of 4 CE, for example, stated that only slaves manumitted using the official procedures and which were over a certain age were acquired Roman citizenship after manumission. Similarly, the Lex Iunia Norbana of 19 CE granted those who had been freed informally only the status of Latini). The owner's freedom to manumit slaves formally, thereby granting them citizenship, was curtailed during the Principate when Augustus introduced the Lex Fufia Caninia in 2 BCE, a statute which prevented owners from freeing too many slaves by way of a will, thereby swelling the ranks of the populace.

The owner of the slave had extensive power over the slave. Take the following statement by Gaius:

Inst.Gai.I.52. Slaves are in the power (potestas) of their masters. This power derives from the law of nations (ius gentium), since it is observable among all nations alike that masters have the power of life and death over their slaves and whatever is acquired by the slave is acquired for his master.

Three things are noteworthy about this text. First, Gaius uses the same term (potestas) to describe the power over the slave as over the other members of the familia (hardly surprising as slaves were legally part of the familia). This most likely reflects the earliest position when the power over the family was undifferentiated and operated within the realm of the head of the household's domestic power. In second place, according to Gaius, the origin of this power is the ius gentium, a frequently used term in the works of the classical jurists. In its primary meaning, it referred to customs of the surrounding nations, a law of nations if you will. Notice also that Gaius focuses on two elements of the power which the master holds over the slave. On the one hand, the most savage of these rights (to destroy the slave), on the other a recognition that slaves could act on behalf of their owners, but not for themselves. We must assume that Gaius chose to highlight these two points with reason.

On the one hand, the right over life and death was probably the most primitive element of the power which the master held, while on the other the use of the slave must have been a more recent development. To what extent the right of life and death was still available to the owner by the classical period is hard to tell. In all likelihood, Gaius is here discussing legal history.

It is a feature of classical Roman law that the position of the slave in relation to his owner is gradually improved through various legal measures which protect the slave from cruel treatment by his master. Take the following two comments:

D. 48.8.11.2 (Modestinus, Rules, book 6). After the Lex Petronia [before 79 CE] and the Senatus Consulta relating to it, a master's power of consigning slaves to fight wild beasts on the basis of his own [domestic] judgement was taken away. But if the master's complaint is a just one and the slave has been brought before a judge, this penalty can be inflicted. [translation: Handouts]

Inst.Gai.L53.... By constitution of the late Antonius [Pius] it is provided that anyone who kills his own slave without cause is as much subject to the law as one who kills someone else's. Even excessive severity on the part of the masters is restrained by a constitution of the same emperor; on being consulted by some provincial governors about slaves who take refuge at temples of the gods or the statutes of emperors, he ruled that masters whose harshness is found to be unbearable are to be forced to sell their slaves. [translation: Handouts]

One should not take these two texts to mean that all Romans treated their slaves cruelly as a matter of course. Slaves could be valuable financial commodities and it is unlikely that they would be destroyed or damaged by their owners at will. Nonetheless, laws are not made without good reason and it must be assumed that there is something behind these texts.

On the other side of the spectrum of statuses lay those people who had the full benefit of the Roman law of persons and family. Before 212 CE, access to Roman law was determined by Roman citizenship. There were a number of ways in which this could be acquired. The most common way was by birth from a valid Roman marriage (another through adoption). A birth of this kind automatically generated paternal authority, one of the cornerstones of the Roman law of persons and family. Gaius expresses it in the following manner:

Inst.Gai.L55. Children whom we beget in civil marriages are also in our power. This right is peculiar to Roman citizens for scarcely any other men have over their sons a power such as we have. The divine Hadrian declared as much in a rescript he issued on these who petitioned him for citizenship for themselves and their children. I am not forgetting that the Galatians regard children as being in the power of their parents. [translation: Handouts]

In this text we see a report of the imperial bureaucracy in action. The Emperor Hadrian had been petitioned by some [unknown] individuals regarding citizenship. In response, he (no doubt on advice from his legal counsel) articulated the notion that paternal authority is peculiar to Roman citizens. In a patriarchal society such as Rome, children born in wedlock took the status of the father. This was important for the purposes of the law of succession where the principle of agnatio (blood relationship through the male ancestor) played an important role (illegitimate children did not inherit to the same extent as legitimate children).

The head of the household had extensive rights over his children (and grandchildren). Chief among these, by virtue of his parental power, was to accept the child into the family. According to various statutes from the reign of Augustus, children had to be registered (every male Roman citizen had three names to denote his family affiliation) within thirty days in order to confirm their legitimacy, and it has been suggested that birth registers were kept (Schulz, Roman Law, 75).

The only other ways to acquire Roman citizenship were through formal manumission from slavery or the granting of citizenship en bloc to an entire community as a reward for their allegiance to Rome. Gaius expresses it in the following way:

Inst.Gai.I.11. The freeborn are those who are born free, freedmen are people who are manumitted from lawful slavery. Again, there are three classes of freedman: they are either Roman citizens or Latins or in the category of dediticil (those who have capitulated) [translation: Handouts]

As this text shows, prior to the enactment of the Constitutio Antoniniana of 212 CE, Roman law did not apply to all persons living within the boundaries of the Empire. The Empire consisted of Roman citizens with full rights and access to Roman private law as well as people of other 'statuses' such as Latini (persons who had been informally manumitted and therefore did not acquire citizenship), dediticii (those who had capitulated and who were prohibited by law from coming within 100 miles of the city of Rome) and peregrines (foreigners who may hold citizenship of other states or cities, but who were living in Roman territories). The effect of this decree was to remove the legal distinction between citizens and those with a lesser status.

The third important determinant of legal status was a person's place in the Roman family. The family in Roman law was an important legal entity, the prime purpose of which, from the perspective of the head of the household was twofold, namely to exercise authority over wives, children and slaves and to manage the assets of the family. It is important to stress that the Roman family was in no way similar to the modern concept of a 'nuclear family'. It was essentially a legal construct bound together by paternal authority and agnatio. Ulpian describes the family as follows:

D.50.16.195 (Ulpian, Edict, book 46). Let us see how the term 'family' (familia) is to be understood. It has indeed a variety of meanings: for it is applied both to things (res) and to persons. [translation: Handouts]

This text is revealing about Roman attitudes towards the family. It functioned as a smaller version of the Roman state and the legal importance of the family is clearly visible in a raft of legislation introduced by Augustus in an attempt to promote marriage as the only form of legitimate union among Romans. At the pinnacle of the Roman family was the head of the household, the oldest male of the family (usually the paternal grandfather). Roman law awarded the head of the household (paterfamilias in Latin) extensive rights over the persons and the property of the family. Ulpian describes it as follows:

D.1.6.4 (Ulpian, Institutes, book 1). A Roman citizen can be a paterfamilias or a son in power (fHius familias)... or a daughter in power (filia familias). A paterfamilias is a man who has his own power (potestas), whether he is above or below the age of puberty. a son in power or a daughter in power is in the power of someone else. For a child born to the union between me and my wife is in my power; and one who is born from the union of my son and his wife, in other words my grandson or granddaughter is also in my power, as are my great-grandson or great-granddaughter and so on. [translation: Handouts]

These rights (collectively known as patriapotestas) were lifelong and only terminated by the death of the paterfamilias or the emancipation of the child. To modern eyes, many of these rights seem cruel and invasive (e.g. the right to expose infants and to interfere in relationships), but their existence should not necessarily be taken to imply that all heads of households ruled their families like small fiefdoms. It is more likely to be a reflection of the antiquity of this institution and its importance for the domestic jurisdiction of the head of the household over his family. See for example this description of the origins of paternal authority by the Greek scholar, Dionysius of Halicarnassus:

Romulus granted to the Roman father absolute power over his son, and this power was valid until the father's death, whether he decided to imprison him, or whip him, to put him in chains and make him work on a farm, or even to kill him. Romulus even allowed the Roman father to sell his son into slavery. (Dionysius of Halicarnassus 2.26-7, taken from FIRA 1, p. 8) [translation: Sheldon §15]

Two aspects of this text are notable. First, paternal authority is connected to the founding father of Rome, thus reinforcing the idea of the antiquity of this institution. Secondly, the text only mentions 'sons'. This is deliberate as Dionysius is subtly reinforcing the point about agnatio through the male line. The text above by Ulpian does mention daughters though, although it makes one wonder whether this might be a later addition to the text.

In time, many aspects of the paternal authority were diluted. There is ample evidence that by the classical period some of these rights (e.g. the right to interfere in the relationships of his children and to insist on divorces) were being curtailed. See, for example, Ulpian's statement:

D.48.8.2 (Ulpian, Adulterers, book 1). A father cannot kill his son without a [public] hearing: he must bring criminal proceedings against him before the prefect or the provincial governor. [translation: Handouts]

We must not be too quick to use this as evidence of the curtailment of the father's power. Notice how the original context of the text referred to 'adulterers'. It may well be that this statement by Ulpian was made in relation to the penalties of the Lex lulia on adultery which enabled the husband who caught his wife in the act of adultery in their home to slay the adulterer.

To understand the law relating to the Roman family, two aspects must be examined in greater detail, namely the relationships between husband and wife, and parent and child.

The main purpose of the Roman marriage was to create Roman citizens through birth, thereby to enlarge the family by way of agnatio.

Inst.Gai.I.156. Agnates (agnati) are those related to each other through people of the male sex, being as it were cognates (cognati) on the father's side, for instance your brother by the same father... or your paternal uncle.... Those connected through people of the female sex are not agnates, but cognates, related only by natural law. So between a mother's brothers and her son there is no agnatio, but there is cognatio... [translation: Handouts]

The distinction between agnatio and cognatio had an important impact on the Roman law of succession. We will return to this matter in Chapter 3. For a valid Roman marriage to take place, the parties had to be of marriageable age. In Roman law, this age was twelve for women and fourteen for men, ages agreed by the jurists as being the legal age of puberty. Although this seems quite young, it must be remembered that the average Roman life-expectancy was shorter than in modern times. Roman marriages were legally important for two reasons. First, any children born from such a marriage automatically obtained Roman citizenship by birth. In second place, children born from a valid marriage were subject to the patriapotestas of their head of the household.

A Roman marriage could be preceded by a betrothal. This typically occurred when the parties were not yet of a marriageable age. While in republican Roman law the betrothal could be formulated as a verbal contract, breach of which could lead to lawsuits, it had ceased to be actionable by the time of classical Roman law. This is indicative of a change in the understanding of marriage from a property transaction between two families to a social relationship between two individuals with the aim of producing Roman citizens.

In classical Roman law, the most common form of marriage was the 'free marriage' (marriage without manus). This term was used to distinguish it from the older form of marriage (marriage with manus) which still existed in classical Roman law, but which was entered into less frequently as it had a negative impact on the person and the property of the wife. Gaius describes the older regime in the following manner:

Inst.Gai.I.110. Once women passed in manus in three ways, by usus, by confarreatio and by coemptio. A woman passed into manus by usus if she lived continuously as a wife for one year, being as it were acquired by a year's prescription (usucapio) and so she passed into her husband's family ranking as a daughter. Thus it was laid down in the Twelve Tables that a woman not wishing to come under her husband's manus in this way should stay away from him for three nights each year (trinoctium abesse) and so interrupt the usus of that year. But all of this law has been partly abolished by statute and partly forgotten because of disuse. [translation: Handouts; usucapio is a form of prescriptive acquisition of title found in the law of property]

Although it is commonly said that there were no 'legal formalities' for a free marriage, this is not entirely accurate. It is fair to say that no ceremonies sanctioned by the state were required to create a free marriage (unlike the older form of marriage which required certain ceremonies to establish manus), but Roman law laid down certain requirements. The parties had to be of a marriageable age, unmarried and of the opposite sex. They had to have conubium, the capacity to marry as a component of their citizenship, and they had to fall outside the forbidden degrees of relationship.

Inst.Gai.I.59. No marriage can be contracted and there is no conubium between persons standing in any relationship like parent and child to each other, for instance father and daughter... grandfather and granddaughter... [i.e. ascendants and descendants]. [translation: Handouts]

Free marriage in Roman law was based on consent of the parties (and of those in whose paternal power they stood). This is expressed by the jurist Paul in the following fashion:

D.23.2.2 (Paul, Edict, book 35). A marriage cannot take place unless everyone involved consents, that is the parties and those in whose power they are.

Although in theory heads of household could interfere with their children's marriages by virtue of their paternal authority, there is evidence that this right was curtailed during the classical period:

D.23.2.19 (Marcian, Institutes, book 16). By section 35 of the Lex Tulia [de maritandis ordinibus of 18 BCE] those who wrongfully prevent children (liberos) in their power from marrying or getting married (ducere uxores vel nubere) or who refuse to give them a dowry in accordance with the constitution of the divine Severus and Antoninus [c. 200 CE] can be compelled by the proconsuls or provincial governors to arrange marriages and provide dowries for them. Those who do not try to arrange marriages are held to prevent them. [translation: Handouts]

Notice that according to the final sentence of this text, sufferance is also deemed to be interference. It is important to note that Roman marriage was monogamous. Although sex outside marriage with the lower classes was not illegal (since people in this situation could not legally marry anyway), Augustus, through his legislation (principally the Lex Tulia de Maritandis ordinibus and the Lex Tulia de Adulteriis) attempted to regulate the private affairs of (presumably) the upper classes. The former act was designed to reinforce the institution of marriage by placing a legal duty on all citizens within a certain age range to marry and by penalising those who failed to do so, while the latter penalised sexual liaisons between those of the same class outside marriage by outlawing stuprum (free sexual intercourse with others of the same class outside marriage) and outlawed adultery. This law states:

'Henceforth no one shall commit adultery or rape knowingly or with malice aforethought' The words of this law apply both to him who abets and to him who commits the crime.

The Julian law to control adultery punishes not only those who violate the marriages of others. Under the same law, the crime of debauchery [i.e. stuprum] is punished, when anyone seduces and violates, even without force, either a virgin or respectable widow. (Acta Divi Augusti, pp. 113-16, 123, 126) [translation: Shelton §77]

The legislation of Augustus introduced a legal duty on the husband to divorce the wife as soon as her adultery was discovered. The husband then had to prosecute his wife in the adultery courts created under this legislation. A successful prosecution led to loss of the dowry and even banishment. The two Julian acts were later supplemented by the Lex Papia Poppaea which imposed financial penalties on those who preferred to remain celibate or were childless. Whether these statutes achieved the desired result is difficult to assess, but authors of the period regarded them as unsuccessful. See, for example, the following comment by Tacitus:

Towards the end of his life, Augustus passed the Papia- Poppaean Law, which supplemented the earlier Julian Laws, to encourage the enforcement of penalties for celibacy and to enrich the Treasury. However, even with this new law, marriages and births did not increase substantially. Childlessness offered too many advantages. (Tacitus, Annals 3.25) [translation: Shelton §40]

This rich passage contains a number of interesting points. Tacitus thought that the underlying motives for these acts were twofold, first to enrich the Treasury (i.e. financial) and secondly to increase the birth rate of Roman citizens (i.e. social). He seems ambivalent about the success of this legislation. While the former may have worked, the latter aim certainly was not fulfilled. Exciting though this statement is, one should not take Tacitus' word as the gospel. Rather, it should be weighed up against other evidence to see how accurately it reflects the real position (as far as it can be ascertained).

Throughout the marriage, the parties had to manifest their intention to remain married (affectio maritalis) to the outside world by, for example, having a common marital home. Marriage contracts were not uncommon. Take the following example which, although Egyptian rather than Roman, would not have been incompatible with Roman law of the time:

Thermion and Apollonius son of Ptolemaeus agree that they have come together for the purpose of sharing their lives with one another. The above-mentioned Apollonius son of Ptolemaeus agrees that he has received from Thermion, handed over from her household as a dowry, a pair of gold earrings [ ] From now on he will furnish Thermion, as his wedded wife, with all necessities and clothing according to his means, and he will not mistreat her or cast her out or insult her or bring in another wife; otherwise he will at once return the dowry and in addition half again as much.... And Thermion will fulfil her duties toward her husband and her marriage and will not sleep away from the house or be absent one day without the consent of Apollonius son of Ptolemaeus and will not damage or injure their common home and will not consort

with another man; otherwise she, if judged guilty of these actions, will be deprived of her dowry, and in addition the transgressor will be liable to the prescribed fine.... (BGU 1052 (Selected Papyri, 3)) [translation: Shelton §57]

Notice the level of detail in this marriage contract. It seems not unlike a normal commercial partnership contract. Of particular interest are the rules concerning dowry and the return of the dowry as a penalty for transgressions within the marriage (such as adultery). One can clearly see from this contract how the dowry could be used as a measure to keep the parties together in marriage.

The free marriage, as a more liberal institution than its predecessor, did not affect the wife's existing property or place in the family. If she was under the paternal authority of her paterfamilias at the time of marriage, she remained as such until such time as the authority was terminated (usually through the death of the head of the household). She then became legally independent (sui iuris), but was subject to guardianship in relation to her commercial transactions. This is succinctly expressed by Ulpian in the following text:

D.50.16.195 (Ulpian, Edict, book 46). A woman is both the first and last of her family. [translation: Handouts]

This text says much about the Roman legal attitude to women. Ulpian could not quite bring himself to state that a woman could be independent when she was in a free marriage and became sui iuris after her birth paterfamilias has died. He therefore had to invent a form of words that conveyed the idea that she was ‘a family of one'. This statement demonstrates the importance of the familia as a legal concept in Roman law.

Given the separation of property between spouses which existed in classical Roman law, it comes as no surprise that gifts between spouses were not permitted. This ban was not aimed at small gifts, but rather at large commercial gifts which could potentially defraud creditors of one of the spouses. This can be seen from the following text:

D.24.1.1 (Ulpian, Sabinus, book 32). It is an accepted custom with us that gifts between husband and wife are not valid. It is accepted in order to prevent people from impoverishing themselves through mutual affection by unreasonable gifts which are beyond their means. [translation: Handouts]

Notice how Ulpian mentions that it is a matter of 'accepted custom, in other words this rule of law has grown organically rather than being enacted by statute. Where such gifts had been made, they could be kept, but when the marriage ended in divorce the value of the gifts had to be returned. No doubt the intention with which it had been given would be key.

In a certain sense, the only exception to rule on gifts between spouses was the institution known as the dowry. The dowry was a fund of property or money given by the wife (if she was legally independent) or her family to the husband (such as the gold earrings in the marriage contract above). Ulpian tells us how a dowry is conventionally given:

Ulpian, Regulae 6.3. Dowry is either called 'parental' (profecticia) when it is given by the wife's father, or 'external' (adventicia) when it is given by anyone else at all. [translation: Handouts]

Although the dowry became the property of the husband, there were various restrictions to his use of assets by the classical period. This development is linked to the rise of the free marriage, the ease of divorce and a change in the Roman conception of the purpose of a marriage. This is succinctly expressed by the jurist Tryphoninus:

D.23.3.75 (Tryphoninus, Disputations, book 6). Although the dowry is part of the husband's property, it nevertheless

belongs to the wife [translation: Handouts]

Thus, the husband's ownership of the dowry was 'hollow', especially since the wife could compel its return in cases of divorce. Where a marriage failed through divorce, the husband normally had to return the dowry at once (or in instalments depending on the nature of the assets). In classical Roman law, certain automatic retentions were built into law which enabled the husband to retain part of the dowry. This can be seen from the following text:

Ulpian, Regulae 6.9. Retentions (retentiones) on the dowry can occur for children (propter liberos) for misconduct (propter mores) for expenses (propter impensas) for gifts (propter res amotas). 6.10 A retention for children can be made if the divorce was the fault (culpa) of the wife, or of her father where she is in power. Then a sixth of the dowry can be retained for each child, but not for more than three. [translation: Handouts]

Notice how this text by Ulpian assumes that the children will remain with the husband after the divorce (this also goes some way to explaining the position of the wife in the Roman law of succession, as we shall see in Chapter 3). Again, this reinforces the notion of parental authority coupled with agnatio.

Termination of the marriage occurred mainly in one of two ways, namely through death of one of the spouses or through divorce. Where the wife predeceased the husband, he could keep the dowry unless otherwise stipulated when it was granted to him. If the husband predeceased the wife, both she and the children would become legally independent (sui iuris) if the husband had also been the head of the household. The wife was placed under guardianship (only for the purposes of commercial transactions and litigation) and the children would be placed under tutorship depending on their age.

Divorce in classical Roman law could take place either through consent or by unilateral notification by one of the parties. Consensual divorce did not require any grounds, but frivolous divorces were discouraged by the fact that the dowry had to be returned either immediately or in instalments. Divorce by consent manifested itself in the cessation of the intention to remain married (affectio marital is).

The sending of a unilateral notice of the intention to divorce seemingly required greater formality. The prescribed form of words seems to have been the following:

D.24.2.2.1 (Gaius, Provincial Edicts, book 11). In repudiations, that is renunciation, these words are the approved ones: 'Keep your things to yourself!' or 'Look to your own things!' [translation: Handouts]

Certain texts suggest that the notice had to be sent in the presence of seven witnesses, but it is unclear whether this referred to all unilateral notices or merely those sent in compliance with the Augustan law on adultery. This is plausible, especially since the divorce in this case would not have been consensual. Take the following text:

D.24.2.9 (Paul, Adultery, book 2). A divorce is invalid unless it takes place in the presence of seven Roman citizens of full age and also a freedman of the divorcing party.

A number of divorce agreements from Egypt display similarities with Roman law. Take the following example:

Zois and Antipater agree that they have separated from one another and severed their arrangement to live together.... And Zois agrees that Antipater has returned to her, handed over from his household, the items he received as her dowry, namely clothing valued at 120 silver drachmas and a pair of gold earrings. Both parties agree that henceforth the marriage contract will be null and void

... and from this day it will be lawful for Zois to marry another man and for Antipater to marry another woman, with neither party being liable to prosecution. (BGU 1103 (Selected Papyri, 6)) [translation: Shelton §71]

This appears to be a divorce by consent and the parties agree to sever their affectio maritalis by ceasing to live together. Furthermore, an arrangement for the return of the dowry is made. Finally, the parties take care to state that the marriage is now null and void so that they are free to marry others without falling foul of the law on adultery.

Before moving on to the relationship between parent and child, a few observations about the legal position of Roman women are required. Roman women had extensive rights under private law compared to other societies of the period, but they were entirely debarred from public law. This meant that they could not vote or hold public office, nor could they act as witnesses or legal representatives in a court of law. This attitude towards women is not incompatible with the patriarchal structure of Roman society, but in matters of private law their position was much better than that of their Greek counterparts. Women who became sui iuris owing to the death of the paterfamilias were under perpetual guardianship (for certain aspects of their life).

Guardians are appointed both for males and females; for males only when they have not yet reached puberty and are therefore of tender age; or females both before and after puberty because they are the weaker sex and are ignorant in business and legal matters.

A woman needs authority from her guardian in the following matters: if she is engaging in a lawsuit, if she is undertaking a legal or financial obligation, if she is transacting in civil business (Ulpian, Regulae 11.1, 21, 27, 28) [translation: Shelton §50]

The guardian could be appointed by will (usual practice) or in some cases a woman could also choose her own guardian. The guardian had a limited function. He could not undertake any transactions with her property, but merely had a right to veto transactions of which he did not approve. He could not be sued as a guarantor for any debts incurred by her. There is a relaxation of the rules on guardianship for women during the classical period.

The legal relationship between parent and child is based on two principles, namely paternal power and agnatio. It has been pointed out that many of the topics with which this area of law concerns itself in modern law such as parental responsibilities and matters of custody in the event of divorce did not surface in Roman law. Owing to the concept of paternal power (patriapotestas) which the father (if head of the household) exerted over his children, issues of custody were immaterial as the children, in the event of divorce, always stayed with the father. As mentioned above, paternal power was created by birth out of a valid Roman marriage (or through adoption) and existed until terminated either by the death of the head of the household or, artificially, through emancipation. This is expressed by Gaius as follows:

Inst.Gai.L132. Children cease to be in parental power by emancipation. [translation: Handouts]

By virtue of this power, the father (if head of the household) acquired extensive power over the person and property of his children. As far as his rights over the person of his children were concerned, many parallels have been drawn with the position of the slave in the household. One can see this from Gaius' analogy in the following text:

Inst.Gai.II.87. Anything received by children in our potestas or our slaves, whether by conveyance (mancipatio) or delivery, or under a verbal contract (stipulatio) or on any other basis is acquired for us, because a person in our

potestas can have nothing of his own. [translation: Handouts]

The most intrusive of these rights permitted the head of the household to expose newborn infants (a right abolished during the latter part of the fourth century CE) and the right to interfere in the relationships of his children by forbidding marriage or insisting on a divorce (though as we have seen these rights were curtailed during the classical period). As far as the property of the children is concerned, early Roman law held that children could not own any property separately from the head of the household. By the classical period, this position had been severely undermined by permitting children to hold a peculium, a fund similar to those held by slaves, over which they had some rights even though technically it remained the property of the paterfamilias.

D.14.6.2 (Ulpian, Edict, book 46). As far as the military peculium is concerned, a fiHus familias is in just the same position as if he were a paterfamilias, [translation: Handouts]

Various further improvements were made during the course of the classical period whereby other categories of good were also brought within the ambit of the child's peculium, such as goods specifically inherited from their mother.

Paternal authority was lifelong and could only be terminated in one of two ways, namely either through the death of the head of the household or through the emancipation of the child. If, through the death of the head of the household, children became legally independent, Roman law stated that their interests had to be protected by tutors or guardians. If the child was an infant (i.e. below the age of seven) or an impubes (above the age of seven, but below the age of puberty), they were assigned a tutor. The tutor was responsible for the financial welfare of the child and had to authorise their transactions. Classical Roman law witnessed an evolution in the protection measures available to the child against a tutor. Above the age of puberty, children who were legally independent were placed under guardianship until they reached majority (at the age of twenty-five). The rules on guardianship are detailed and are best left for a more comprehensive treatment in another book.

A final aspect of the law of persons which requires mention is that of adoption. In Roman law, adoption could take one of two forms: the adoption of a person under paternal power (alieni iuris) or the adoption (properly called adrogatio) of one who is already sui iuris. In both cases, the motivation for adoption seems to have been the continuation of the Roman familia and the creation of an heir for the purposes of inheritance. The main consequence of adoption was that the adoptee became part of the familia and that the head of the household asserted paternal authority over him. The Roman legal rules on adoption (and especially on adrogatio) are detailed and best viewed within the larger context of the purpose of this institution.

Suggested further reading

Bradley, K. Discovering the Roman Family (Oxford 1991) Dixon, S. The Roman Family (Baltimore, MD 1992) Evans-Grubbs, J. Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widowhood (London 2002) Gardner, J. Family and Familia in Roman Law and Life (Oxford 1998) Saller, R. Patriarchy, Property and Death in the Roman Family (Cambridge 1994)

Treggiari, S. Roman Marriage: iusti coniuges from the Time of Cicero to the Time of Ulpian (Oxford 1993)