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Legal Status in the Roman World


132. Marital subordination (Gaius, Institutes 1.108-118, 136-137a. Tr. Gordon and Robinson. L)

(108) Now let us examine persons who are subordinate to us in marriage. [32] This is also a right peculiar to Roman citizens. (109) While it is customary for both men and women to be in power, only women fall into marital subordination. (110) Formerly there used to be three methods by which they fell into subordination: by usage, by sharing of bread, and by contrived sale. [33] (111) A woman used to fall into marital subordination by usage if she remained in the married state for a continuous period of one year: for she was, as it were, usucapted by a year's possession, and would pass into her husband's kin in the relationship of a daughter. The Twelve Tables therefore provided that if any woman did not wish to become subordinate to her husband in this way, she should each year absent herself for a period of three nights, and in this way interrupt the usage of each year. [34] But this whole legal state was in part repealed by statute, in part blotted out by simple disuse.

(112) Women fall into marital subordination through a certain kind of sacrifice made to Jupiter of the Grain, [35] in which bread of coarse grain [36] is employed, for which reason it is also called the sharing of bread. Many other things, furthermore, have to be done and carried out to create this right, together with the saying of specific and solemn words in the presence of ten witnesses. This legal state is still found in our own times; for the higher priests, that is the priests of Jupiter, of Mars, and of Quirinus, as also the Sacred Kings, [37] are chosen only if they have been born in marriage made by the sharing of bread, and they themselves cannot hold priestly office without being married by the sharing of bread.

(113) Women fall into marital subordination through contrived sale, on the other hand, by means of mancipation, that is by a sort of imaginary sale; for in the presence of not less than five adult Roman citizens as witnesses, and also a scale-holder, the man to whom the woman becomes subordinate 'buys' her. (114) A woman, however, can make a contrived sale not only with her husband, but also with a third party. A contrived sale is indeed said to be made either for the purpose of marriage or of a formal trust. For when she makes a contrived sale with her husband, so as to take the status of a daughter, she is said to have made a contrived sale for the purpose of marriage. On the other hand, the woman who makes a contrived sale for some other purpose, whether with her husband or with a third party-for instance, for the purpose of evading a guardianship-is said to have made a contrived sale for a fiduciary purpose. (115) This last is as follows: if a woman wishes to set aside the guardians she has and to get another, she makes a contrived sale of herself with their authorisation; then she is remancipated by the other party to the contrived sale to the person whom she wishes, and, when she has been formally manumitted by him, she comes to have this man as guardian. He is called the 'fiduciary guardian' as will appear below. (115a) Formerly a contrived sale used also to take place for the purpose of making a will; for at one time women, with certain exceptions, had no right to make a will unless they had made a contrived sale and been remancipated and manumitted. But, on the proposal of the late emperor Hadrian, the Senate remitted this requirement of making a contrived sale. [A woman who makes a fiduciary contrived sale with an outsider does not stand as a daughter to him, but (115b) she who] makes a contrived sale with her husband for a fiduciary purpose nevertheless comes to stand as a daughter. For if for any reason at all a wife should become subordinate to her husband, the received opinion is that she acquires the rights of a daughter.

(116) It remains for us to describe what persons are in bondage. [38] (117) All children, whether male or female, who are in the power of their father can be mancipated by him in the same way as slaves can. (118) The same rule applies to persons in marital subordination; for women can be mancipated by the other parties to the contrived sale in the same way as children by their father. This is so to the extent that, although she stands as a daughter to the other party only in that she is married to him, yet when she is not married and therefore does not stand as a daughter to the other party, she can nevertheless be mancipated by him. ...

(136) [Moreover, women who fall into marital subordination cease to be in the power of their father. But for those married by sharing of bread as the wife of a priest of Jupiter,] it is provided [by a resolution of the Senate moved by] Maximus and Tubero that such a woman is regarded as being in marital subordination only so far as religious observances are concerned; in other matters, on the other hand, she is viewed just as if she had not fallen into marital subordination. However, women who have fallen into subordination by a contrived sale are freed from their parent's power; nor does it matter if they are subordinate to their husband or to some other person, although only those women who are subordinate to a husband are viewed as standing to him as a daughter.

(137) [Women cease to be in marital subordination in the same ways as daughters are freed from paternal power. Just as daughters emerge from power by one mancipation so, by one mancipation, do women] cease to be subordinate; if such women should be manumitted after that mancipation they are made independent. [39] (137a) [The difference between a woman who has made a contrived sale with a third party and her who has made one with her husband is that the former can compel the other party to remancipate her to whomever she wishes, but] the latter can no more compel [her husband] [to do this] than can a daughter her father. A daughter certainly cannot in any matter compel her father, even if she is an adoptive daughter; but once a woman has sent notice of divorce, she can compel her husband just as if she had never been married to him.


Notes

32. Marital subordination translates quae in manu nostra sunt.

33. Respectively usus, confarreatio, and coemptio.

34. By this method, the woman did not free herself from the power of her husband but avoided entering it at all and instead remained in the power of her father, at his command, or, if she had been emancipated or her father was dead, her own. Cf. no. 000.

35. Jupiter Farreus.

36. Spelt.

37. Rex sacrorum.

38. In mancipio.

39. Sui iuris.