PATRIA POTESTAS: THE LAW AND THE REALITY FOR WOMEN

 

 

       In the modern, western world we tend to think that countries are made of individuals. While some through marriage might acquire additional obligations of mutual support, everyone, married or single, has the same rights and responsibilities as everyone else. Of course, some nations require residents to be citizens before they can hold public office, and the principle of equality might be honored more in theory than in practice, but nevertheless we still believe a country is made up of the individuals, not the families, who live in it.

       The Ancient World, however, was different. We must remember that there was no TV, telephone, or radio and there was certainly no internet. Newspapers did not exist, and even if they did the vast majority of the population would not have been able to read them, so information was passed back and forth on a strictly face to face basis. It made much more sense to communicate through the family. Who should represent the family? Whatever we today might think of the unfairness of saying it should always be a man, the answer in every one of the civilizations we look at in this website was the father. 

Throughout the ancient world, then, the father was the theoretical head of the house. The Romans carried this one step beyond any other society and gave him, as paterfamilias, full legal authority, potestas, over the rest of the family, including adult children. When a woman married in the early Republic she left the authority of her father and entered into the manus of her husband, occupying a place in her new home close to that of a daughter. [1] A first century jurist recounts the story of a man in the early days of the Republic beating his wife to death because she had drunk some wine. His neighbors approved.[2] The mid Fifth Century BCE law code, The Twelve Tables, eliminated some of the abuses inherent in such power and declared that a woman could avoid entering the manus of her husband by the simple expedient of absenting herself from her husband’s home three consecutive nights every year for as long as she remained married. [3] A doting father living in a different house could be expected to be more supportive and less restrictive than a husband in the same house; in case of trouble, she could perhaps play off her father against her husband and she retained the option of going back to her parent’s home if things got unbearable with her husband.

       From at least the beginning of the last two centuries of the Republic and throughout the Empire most marriages were without manus, the wife taking advantage of that loophole in the Twelve Tables to continue living under the power of her father. The husband, or technically his father if still alive, had full control of the household’s assets, including the wife’s dowry, but otherwise the law left open the question of who was in charge. 

       The early Republic’s decision to attack and conquer a few neighbors who were rich in resources but weak militarily naturally aroused fear and jealousy throughout the Mediterranean world and in very short order Rome had set up a situation where it was “conquer or be conquered.” It had to continue the policy of expansion or face possible conquest itself by frightened neighbors. Though security, wealth, and power were, indeed, the original aims, the law of unintended consequences was not to be denied. The conquest of new territory meant that enormous sums of money poured into Rome and it was inevitable that some of that would fall into the hands of women, even if originally it was only in the form of jewelry given them by husbands who thought they would have more prestige in society if their wives were richly dressed. Matters came to a head at the end of the third century BCE when Carthaginian forces under Hannibal occupied a large part of Italy for over 15 years.

       To acquire and maintain colonies and to achieve final victory over the Carthaginians, Roman men had to be away for extended periods, leaving their wives in charge of home, family and sometimes business. Lo and behold! Life at home continued on as it had before. House and family did not fall apart even though a woman was left in charge. When the entire male side of many families was wiped out wives were left to inherit, and women ended up with the wealth that men had died to accumulate.

       The high mortality rate in battle combined with the ancient world’s normally high rate of maternal death meant a large number of widows and widowers seeking a second marriage. These brides were older and wiser and not so easily dominated and sometimes they even had money in their own right if their first husbands had died without children. To ensure that more money was available for taxation to support these wars, the Lex Oppia had been passed in 215 BCE restricting the opulence of women’s dress in public. The Lex Oppia denied women the right to wear multi-colored clothing, jewelry valued at over a half once of gold, or ride in a horse-drawn carriage close to or within the city limits, except to attend a religious function. A law that seemed not unreasonable during the war was roundly condemned by most women and many men once peace was declared. For some, however, the war had just been a convenient excuse; they were really afraid that all of that luxury in the hands of women would make them feel too important and give them the resources to exercise real power in society. What should be done? It was probably the biggest and most important question to be answered in the years following the defeat of Hannibal and the Carthaginians. Despite the best efforts of the conservative Cato, the tax was repealed. It is interesting to note that the leading proponent [4] for repeal argued that it was up to husbands, and not the state, to control women’s extravagance.

       The next attack on women’s wealth was the Voconian law of 169 BCE that prevented men in the wealthiest class bequeathing large sums of money to a daughter. The Twelve Tables had always allowed women to inherit from a father and since any money a daughter possessed was in the end the property of whatever guardian the father had appointed to look after her, there was no danger of the money ever escaping into the hands of a different family. What was a rich father to do if he had only a daughter or two to inherit? The record is hazy but apparently some men got around the Voconian Law by not getting registered in the wealthy class. Others simply gave away their money before they died. In many cases the will passed the estate to a trusted Mr. X on the condition that he give most of it to the daughter. It is not clear how often these devices worked, and how often they got bogged done in legal challenges, but it is clear that the Roman Republic as a whole was unsure how to handle the question of women and money.

       By the end of the Republic the legal powers of the paterfamilias had been reduced to just three things. First, under certain narrowly defined circumstances he had the power to kill his daughter and or her partner if he caught them in the act of committing adultery. Presumably this was a power that was not exercised very often. Second, the paterfamilias had the power to choose or to approve the marriage partner of his offspring. Third, the paterfamilias had total control of all the family’s assets. Roman society was structured to make the family an economic unit, where the family as a whole owned everything, and the individuals within the family owned nothing. Since the paterfamilias was in charge, he and he alone had the right to dispose of the family assets and to determine how they would be used. If a rich man decided to live the simple life of a poor commoner, there was not much his wife could do about it, but he could not lavish luxuries on himself without treating his wife in like manner. Beyond that, however, anything owned by the family was his to use and dispose of as he and he alone wished. At the same time, whatever money the wife possessed was hers to spend as she wished, subject only to whatever interference her guardian chose to exercise.

       Unless he voluntarily surrendered it, the potestas of a paterfamilias lasted for as long as he lived and covered his children, his adult children, his grandchildren by a son, and his great-grandchildren by a grandson. If he died before his children reached puberty, considered in Roman law to be 12 years of age for girls and 14 for boys, they would of course need an adult to look after them. In reality the day to day care  was likely to have been supplied by the mother, but the father’s nearest male relative, or some other man appointed by his will, served as tutela impuberum, whose job was not to raise the children but to safeguard their property until such time as they were old enough to manage it themselves. Even after the death of her father, an adult woman not in a marriage with manus required a tutor to advise her on financial matters. The tutor mulierum was originally a close relative of the woman’s father and was expected to safeguard any inheritance she might have so that it might be passed on to members of his family.

Even as the Republic drew to a close more and more Romans were questioning the argument that women were too capricious and impulsive to be safely allowed to look out for their own best interests and many wondered if perhaps it was time to get rid of laws that were clearly based on a false premise. Claudius decreed that while an adult woman continued to need a tutor he did not have to come from her father’s family. [5] When in the first century the Senate passed a law allowing women to replace an absent tutor, “no matter how far away he is,” [6]  a tutor’s power became little more than a legal fiction. Even if he was just around the corner, a woman upset with his interference could simply declare him missing and have a new one appointed within the hour.

All of this, of course, meant very little to the woman who had no money anyway, nor did it make a difference for the young women whose fathers were still alive, and the regulations that kept women out of government remained in place, but those few women who did inherit money were better able to live life on their own terms than their ancestors ever dreamt possible. Women were perhaps on a path to a hitherto unimaginable degree of equality until the rise of Christianity with its objection to divorce and its exhortation that wives should obey their husbands.

 

 

[1] Institutes of Gaius, I.111

[2] Valerius Maximus, Memorable Deeds and Sayings, 6.3.9-12

[3] Twelve Tables, VI.6

[4] Lucius Valerius

[5] Institutes of Gaius, I.157

[6] Ibid, I.173

 

 

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