Early Rome

1
Early Rome

• Legal Sources

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Historical Evidence

• The Laws of the Kings dating back to Romulus
• The XII Tables , mid 5th century B.C.
• first Roman law code (codification of established
  traditions and customs) inscribed on bronze
  tablets and set up in the Roman forum
• mos (sg) mores (pl) custom/s
• Reflect important values of early community
• Many early laws remained valid into the imperial
  period, and many later laws had roots in these
  early laws

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The laws of the kings 8th century BC

• Every male child and the first-born female must
  be raised

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The XII TablesTable IV patria potestas

• 1. A notably deformed child shall be killed
  immediately.
• 2a. To a father ...shall be given over a son the
  power of life and death.

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The Early community

• Laws reflect a patriarchal social organization,
  similar to that of Classical Athens
• the extraordinary paternal power (patria
  potestas) of the paterfamilias (father of the
  family), the male head of a family (could be the
  father, grandfather, great-grandfather)
• in his control were members of his familia his
  legitimate children, his sons children, his wife
  if married in manu, and his slaves,
• paterfamilias had power over life and death
  (ius vitae necisque) over his children, slaves,
  in his domus (household), but not over his wife
  in manu
• The pater had right to refuse to rear a newborn
  child mother had no legal power to prevent it.

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patria potestas

• If a child was refused by the paterfamilias ,
  exposure was practiced until made illegal in A.D.
  374
• Despite this power in law, very few cases are
  recorded in Roman history where a father actually
  put an adult child to death (have some
  references to daughters put to death for
  unchastity)
• Women who were condemned by the state were at
  times handed over to families for private
  punishment, example suppression of the
  Bacchanalia in 186 BCE
• In 154 BCE Pomponia Graecina, accused of foreign
  superstition, was handed over to her husband, who
  in family council with his relatives, acquitted
  her.

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Roman Law

• Important to remember generally laws do not
  necessarily always coincide with social
  practices Laws were there to appeal to when
  deemed necessary. Many conflicts were resolved in
  the family Greece and Rome were self-help
  societies
• Roman law was there to appeal to when a conflict,
  dispute, or any legal matter could not be
  resolved among the involved parties. Laws were
  not created to shape the actual behaviour of
  people.

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Marriage in the early Republic

• In the early Republic in manu marriages were the
  norm the woman moved from her fathers potestas
  into the potestas of her husband and took the
  place of a daughter (in loco filiae) in his
  family. But she was NOT subject to his power over
  life and death.

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Marriage in the XII Tables

• Table VI. 5. ... If any woman is unwilling to be
  subjected in this manner to her husband's marital
  control she shall absent herself for three
  successive nights in every year and by this means
  shall interrupt his prescriptive right of each
  year.

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The Laws of the Kings

• 9. ..does not permit a wife to divorce her
  husband, but gives him power to divorce her for
  the use of drugs or magic on account of children
  (contraception and abortion?) or for
  counterfeiting the keys or for adultery.if he
  should divorce her for any other reasons, part of
  his estate should go to the wife .. Anyone who
  sold his wife was sacrificed to the gods of the
  underworld

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tutela mulierumguardianship of women

• Table V
• 1. ...Women, even though they are of full age,
  because of their levity of mind shall be under
  guardianship ... except vestal virgins, who Â
  shall be free from guardianship ...

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Tutela - guardianship

• tutor guardian
• An underaged child whose father had died and thus
  became sui iuris (were in their own right, i.e.
  they were no longer in potestas) had to have a
  tutor impuberis
• For boys this ended at puberty at age 14
• Females continued to need a tutor all their lives
  and received a tutor mulieris
• mulier an adult women
• tutela mulieris
• Note guardianship was different from potestas.
  An underaged boy or a woman who were not in the
  potestas of their father (if he had died, or in
  the case of a woman married in manu whose
  husband had died) were sui iuris and required a
  tutor

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the tutor guardian

• tutela legitimus - original form of guardianship
  which allowed male agnates to keep a hold on
  family property
• if a father died without having named a tutor
  for his children, either all or the nearest male
  agnates became tutors
• For a daughter the tutor was then the brother,
  or paternal uncle
• If woman married with manus the husbands
  brother, or her own son would most commonly be
  the tutors.
• This rule for tutela legitimus ended by Claudius
  in mid 1st century AD
• If no agnates - until mid 1st century BCE the
  gens (kinspeople) could claim the tutela of a
  woman (this was the case in the Laudatio Turiae
  where some distant relatives laid a fraudulent
  claim)

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Table Vwomens property

• 2. The conveyable possessions of a woman who is
  under guardianship of male agnates shall not be
  acquired by prescriptive right unless they are
  transferred by herself with the authorization of
  her guardian ...

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The role of the tutor

• A woman had to ask consent from her tutor for
  certain transactions
• Alienation of slaves, including manumission
• Entering into contracts,
• Promising a dowry
• Marriage into manus
• Accepting an inheritance
• Making a will
• All of these are actions that could diminish her
  property

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The tutors consent was needed for some property
transactions

• Alienation of res mancipi property that
  included slaves, oxen, horses, mules, asses, land
  in Italy (both urban and rural) rustic servitued
  land itself and man and animal power needed to
  work it - remember agriculture was the basis
  of production and wealth.
• Everything else she could sell without consent
  from tutor, including sheep, goats, poultry,
  jewellery, clothes, furniture, houses and land
  outside of Italy everything not res mancipi

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tutela - guardianship

• a father could emancipated his daughter, she
  then became sui iuris, and he could be her tutor
• Fathers could name a tutor in their will
• Husbands of in manu wives could give wives a
  choice of tutors in their wills
• By the late Republican period - institution of
  tutela was a mere formality

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The Early Roman community and paternal and
familial controls of females

• Some severe punishments for women, which reflects
  very strict controls on womenfolk by husband and
  male kin.
• Drinking wine was considered dangerous, because
  it was feared that if a a woman got drunk it
  might be easy to seduce her.
• In early Rome, men would kiss their female
  relatives on the mouth when greeting them in
  order to detect alcohol on their breath, not out
  of affection.
• The reference to the key refers to the key to
  the wine cellar. Taking the key to the wine
  cellar was also considered a serious crime by a
  woman (danger of drunkenness and susceptibility
  to seduction).

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Summary of important terms

• pater familias - father of the family (male head
  of household)
• patria potestas - paternal power
• familia - family, but in later Republic and
  empire term applied most commonly to the slave
  household
• domus - household, including the pater familias,
  his wife, their children, sometimes elderly
  parents, slaves, dependents
• in manu into the hand (form of marriage)
• in loco familiae - in the place of a daughter
• Tutela tutor legitimus tutor impuberis, tutor
  mulieris