Dowry

Dowry

The provision of dowry was basically a contribution, customary though not compulsory, from the wife’s family to the expenses of the household of the husband. It was also one of the mechanisms by which Roman families, like those in many other pre-industrial societies, maintained their social status relative to each other,1 and so there was a strong social if not, for most of the classical period at any rate, legal² obligation to provide dowries for daughters. As an indication of the importance attached to dowry, it is noteworthy that the younger Pliny on at least two occasions helped less wellto-do friends in order to secure their daughters’ marriages. One was the case already mentioned of the daughter of his friend Quintilianus, who needed to have clothes and servants suited to her husband’s position. The other was actually a relative. Pliny writes to the daughter, Calvina, after her father’s death. She was the heir, but he had left an estate heavily burdened with debts. Pliny informs her that he personally had paid off the most pressing, so as to be left sole creditor. ‘And while your father was alive I had contributed 100,000 sesterces to your dowry over and above what he had assigned you (and that also came indirectly from me, as it was payable only out of his credit with me).’ Pliny is going to write off this indebtedness. Perhaps because she is a relative (or with an eye to subsequent publication), he then goes on at some length to explain that he is not really all that wealthy himself and has large demands on his resources, a position to keep up, etc., but with simple living he will manage.³

With the development of free marriage and increase in divorce it became an important concern to ensure that the dowry should return to the wife or her family at the end of a marriage, either to enhance her chances of remarriage, or to maintain the family resources, and a detailed and elaborate body of legal rules developed to secure these ends.

Dowry was the property of the husband or his pater. In early Rome, when marriage with manus was still the norm, this was inevitable, since the woman in manu, like one in potestate, was incapable of owning property. Originally, the dowry itself was irrecoverable, but, as we have seen, some protection was given to the wife by the provision that a husband had to surrender half his property to a wife divorced other than for certain grave offences against the marriage. In strict law the dowry remained the property of the husband throughout the classical period, even in free marriage; however, various means were found of enabling the wife or her family to recover the dowry at the end of the marriage, and the principle became accepted that the husband, on his part, had a duty to maintain the value of the dowry, with an eye to its eventual return, while it also came to be regarded as in a sense part of the patrimony of the wife.⁴ On the other hand, the feeling that the husband ought not to be ‘out of pocket’ in consequence, as well as a growing acceptance of the idea that ‘family’, in the sense of the children of the marriage, also had a claim, led to the development of a further set of rules on which a claim could be based for the retention of at least part of the dowry at the end of the marriage.

The Constitution of Dowry (dos)

When a woman sui iuris entered a marriage with manus, all her property was absorbed into that of her husband or his pater. Cicero, Top. 4.23, says as much, but adds, dotis nomine (‘under the title of dowry’). Originally, this cannot have been so. There was no dowry; the Roman woman so situated was in a similar position to that of English women before the Married Women’s Property Act of 1882; whatever property she owned before marriage became the husband’s upon marriage.5 By Cicero’s time, however, under the influence of free marriage, it had come to be accepted that such property should be counted as dowry, at least in some circumstances. Our surviving evidence relates to marriage without manus, but the likelihood is that where a manus-marriage ended in the death of either partner the normal rules of inheritance would apply (the wife would, in fact, have nothing to leave), but on divorce her property before marriage would be treated as dowry.

Usually, however, a bride, whether in free marriage or manusmarriage, was likely, at least when marrying for the first time, to be still filiafamilias, and therefore owning no property. If she was sui iuris, her property in free marriage stayed separate from her husband’s. In all these cases, steps must be taken to constitute a dowry.

What was involved was, in effect, the conveyance of the specified dowry property into the ownership of the husband. Ulpian distinguished three methods by which this might be done: ‘A dowry is given, or declared or promised’.⁶ There are difficulties in trying to take these as mutually exclusive and exhaustive. The last two can be shown to refer to specific methods of contracting to give a dowry; the first is a blanket term to cover a range of methods of actual transfer of the property.

Dotis dictio (Declaring a Dowry)

This could be done only by the woman herself, her father or paternal ascendant, or a third party who was in debt to the woman. It was a verbal contract of a peculiar kind. Normally, the correct method of making a verbal contract (stipulatio) required that the beneficiary should ask a question: ‘Do you promise X?’ and the contractor was to reply: ‘I promise X.’ The peculiarity of dot is dictio lay in the fact that no previous question was required.⁷

Why this one-sided form was used is obscure. One suggestion is that it was a survival from a time before the procedure of stipulatio had fully developed; another, that it was one of several early forms of contract which were developed each for only one particular transaction; while a third suggestion appeals to the social awkwardness of a prospective husband, or his father, taking the initiative in asking for a dowry.⁸

Whatever its origin, dotis dictio constituted a contract and was actionable. How early it became actionable is not known.⁹ By the time of the compilation of the Digest, the procedure had disappeared, and it is not distinguished there from the more general ‘promise of dowry’ (dotis promissto).

Dotis promissio

This form was open to others besides the bride and her father. The legal form used was that of the ordinary verbal contract (stipulatio). The husband or his pater asked the requisite question: ‘Do you promise to give X?’ and received an affirmative answer. Obviously, the actual content of the dowry proposal would have been settled previously. The agreement gave the husband a legal right to claim the dowry, from the date either of the contract or of the marriage, whichever was later. However, the wife herself and her father could be sued only up to their actual means (beneficium competentiae); so, unless an outsider had constituted the dowry, the husband might not be able to recover what was promised.10

Dotis datio

The widest in application of the three terms, dotis datio (‘giving of dowry’) covered not only actual handing over of property but also any legal actions which had the effect of improving the economic position of the husband’s familia.

Usually, dowry did involve a transfer of actual property, whether movable (including money) or immovable. However, the punctiliousness of lawyers has preserved details of various other devices that might be used, and their legal consequences. For example, a debt owed by the husband might be cancelled (acceptilatio) or its payment be suspended by agreement (pactum de non petendo); the usufruct of property might be assigned, rather than actual property; or the bride might waive a legacy or inheritance in her husband’s favour. All these, and others, could constitute the giving of a dowry, A pater near death might make the legacy a dowry in his will. This could create problems, both if he did not die and also in other circumstances, if, for one reason or another, the designated heirs did not wish to accept the estate and imposed obstacles to the execution of the will.¹¹

A dowry in actual property was handed over to the husband or his pater. He immediately became owner of the property, whether or not the marriage had taken place. The appropriate legal forms of conveyance were observed, according to whether the property was res mancipi or not. If the marriage did not take place, an action for recovery would have to be brought.

In the absence of any special arrangements, dowry in the form of money was usually paid in three annual instalments, starting at the end of the first year. In 162 B.C., Scipio Aemilianus was left as heir to his adoptive grandmother, with instructions to pay each of his three adoptive aunts the sum of 25 talents, ostensibly as the second half of the dowry promised them by their father. If this was a genuine dowry, and not merely a device to avoid the restrictions of the lex Voconia, ¹² clearly some special arrangement must have been made; the elder Scipio died in 184 B.C. Perhaps he had specified that some of this wealth was to remain with his widow during her lifetime for her maintenance and then be passed to their daughters, not foreseeing that she would outlive him so long.¹³ Polybius, however, not appreciating the finer legal points, tells us only, as an example of Scipio’s generosity, that he paid the dowry in full at once, although by Roman custom dowry should be paid in three years. Cicero’s daughter Tullia married Dolabella in 50 B.C., and, as we saw, in July 47 Cicero was worrying about the third instalment becoming due.

Ulpian (Reg. 6.8), speaking about the return of dowry after divorce, says that property that could be weighed, measured or counted (liquid assets, in legal parlance ‘fungibles’) was due for return in three annual instalments. It has been suggested that the same applied to the original handing over of this type of dowry property, but there is no evidence for this. Polybius says merely that the Roman custom was that the dowry should be paid in three instalments, ‘the first instalment, of the liquid assets (epipla), to be made in ten months’. The translation is that adopted by Walbank (1979:508) and is surely right. The implication is that whereas the immovable dowry, such as land or houses, or transfer of various legal rights, fell due immediately, a period of grace was given for raising the part of the dowry in cash; but movables with a cash value had to be paid over earlier than the rest of the ‘liquid’ dowry. The very large cash dowries sometimes given among the upper classes would be hard to meet all at once from available liquid assets. When L.Aemilius Paullus (Macedonicus) died in 160 B.C., his heirs were able to raise the cash to repay their stepmother’s dowry of 25 talents only by selling off some slaves, real estate and household property. Both of Cicero’s two wives brought him handsome dowries, Terentia at least 400,000 sesterces cash and some urban real estate which brought in a large income, and Publilia at least 1.2 million sesterces. However, by the end of the first century A.D. writers such as Martial and Juvenal are citing one million sesterces, the qualifying income for senators, almost as a conventional round figure for an exceptionally ‘rich’ dowry. It has been suggested that the greater instability of marriage in the early empire is reflected in a tendency for upper-class Romans to give relatively small dowries, reserving the main part of their generosity for the inheritance bequeathed later to their daughters and grandchildren (if any). This is a possibility, although the scantiness of the evidence does not allow confidence in making quantitative statements either about the actual incidence of divorce or about the normal size of dowries.14

The Husband’s Rights and Duties

In Roman law, unlike Greek, a dowry became the full legal property of the husband. In practice, however, regard was paid to the purpose of the dowry, to contribute to the maintenance of the wife, and also, as in time legal provision was made for the reclamation of dowry by the wife or her family in the event of dissolution of the marriage, this necessarily imposed restrictions upon the husband’s liberty to dispose of the dowry during marriage.

Jurists’ opinions reflect both the strictly legal and the recognised practical situation. Property given as dowry passes into the ownership of the husband. Since the husband sustains the ‘burdens of matrimony’, in equity any profits from the dowry should belong to him. It can also be said that a husband should display the same diligence in dealing with dotal property as in his own affairs (and can, in certain circumstances, be held liable for fraud and negligence if he does not). Ulpian considers the question of whether the husband can be called to account for maltreatment of slaves which formed part of the dowry. Elsewhere, he goes so far as to say: The dowry is a daughter’s own patrimony.’ Tryphoninus sums it up: ‘Although the dowry is part of the husband’s property, nevertheless it is the wife’s.’¹⁵

By the early empire, the device of aestimatio was commonly used. A fixed value was set at the start on the dotal property (except, it seems, ‘fungibles’), and the husband or his heir would be liable to the equivalent value at the end of marriage. Ulpian remarks that it is generally in the interest of the husband that no valuation of the dowry should be made, to avoid his being liable, and especially if he receives as dowry animals, or clothing used by the woman. ‘For if the clothes are valued, and the woman wears them out, the husband will still be liable to pay the original valuation.’ On the other hand, if the dowry was not appraised, the woman bore the loss (sc. in the event of the return of dowry at the end of the marriage), but she would gain if it had appreciated in value. Sometimes a clause would be included in the dowry agreement giving either husband or wife the right to choose whether the property itself or its value should be returned. If the property was land, and the choice had been given to the wife, then the husband could not sell it during the marriage.16

Fungibles were not appraised, but this, as Gaius explains (D. 23.3.42), is because they were so readily negotiable.

So, a husband in need of cash might sell the jewellery and trinkets his wife had brought, but at the end of the marriage it was not enough simply to hand over the amount of money he had received, since prices might have changed in the meantime. Presumably, though Gaius does not say so, a cash equivalent based on current valuations would have been acceptable.

Until the very end of the Republic, the husband had the power to alienate any part of the dowry as he thought fit. Unless he had had his wife’s consent, however, he could be obliged on dissolution of the marriage to make repayment, if not of the property itself, then of its assessed value at the end of the marriage. In this, as in so much else, Augustus’ legislation broke into the privacy of marital arrangements. A clause of the lex Julia de adulteriis (sometimes referred to by modern writers as the lex Julia defundo dotali) forbade the alienation of any rustic or urban lands in Italy unless the wife consented (which meant effectively unless her pater or, in the case of a woman sui iuris but without the necessary number of children, her tutor, consented, such land being res mancipi); nor could he offer such land as security, presumably because the wife’s interest meant that in a sense she would have been standing surety, and this, as we saw, was contrary to Augustan policy. In regard to dotal slaves, the lex Julia et Papia forbade manumission without the wife’s consent. Any of the freedman’s property acquired by the husband as patron was to be handed over to the wife.¹⁷

Even by the end of the Republic the contingencies in which a husband could be called upon to surrender all or part of the dowry at the end of the marriage were so numerous that his freedom of ownership had become rather a duty of stewardship and a right of usufruct. He was entitled to any profits he might make from the dowry; but any losses, as, for example, among livestock, must be replaced first, before the profit could be realised. The principle was established soon after 122 B.C., at the latest, that the husband, or his estate, was liable for any loss to the dotal property through fraud or negligence on his part. In the civil disturbances at the time of Gaius Gracchus’ death, property belonging to the dowry of his wife Licinia was destroyed. Publius Mucius Scaevola upheld her right to restitution, giving it as his ruling that the sedition had been the fault of Gaius Gracchus.¹⁸

When Caesennia’s first husband, a banker named Fulcinius, was having cash-flow problems, he decided to use the cash from his wife’s dowry (numerata dote). He ‘sold’ Caesennia a piece of landed property for the sum in question and had the land recorded as part of the dowry. Fortunately, the acquisition of some liquid capital seems to have saved the situation, and the dowry was not threatened by claims from creditors.19

The necessity of conservation which was thus imposed on the husband’s management of the dowry produced, in time, a whole body of case law and juristic opinion defining more closely the extent to which the husband might legitimately charge the costs of upkeep of the dotal property upon the dowry itself. These could form the basis of a claim by the husband for retention of part of the dowry propter impensas, Tor expenses’. A whole title in the Digest is devoted to this subject, which appears to have interested Ulpian and Paul in particular.²⁰

Ulpian classifies the expenses as necessary, useful and for pleasure. Necessary expenses were those required to prevent deterioration of the property, e.g., repairing a collapsing building. Useful were expenditures needed not to prevent deterioration but to make the property yield more profit—for example, planting vineyards and olive-groves. The third category merely enhances one’s enjoyment, for example, by the acquisition of paintings or the making of gardens. He quotes other legal opinion, to the effect that building a mill or granary or dykes counts as necessary expenditure, as does replanting ruined orchards.

Paul notes that the second category, useful expenses, should have the wife’s consent, if they are to form the basis of a claim for retention. It would be unjust, he says, if a wife had to sell property in order to meet such expenses, if she could not meet them otherwise. No doubt this was meant as a protection for wives against the enthusiasms of some husbands for expensive ‘improvements’ which in the end did not recover the outlay. Much would depend on how experienced, or how compliant, the wife was.

Opinions differed on expenses for pleasure. Ulpian comments at some length: