The Emancipation of Roman Women

The Emancipation of Roman Women

In 1894, freedom from the obligation to cohabit, financial autonomy, power to divorce—all were recently won gains for married English women. Only three years before the publication of that article, in 1891, an English civil court for the first time intervened to prevent a husband from compelling his wife, by restraint, to remain in his house against her will.1 An Act of 1857 had made it possible for a civil court to grant divorce, but the only ground was adultery, and that of a husband must be ‘aggravated’ —i.e., combined with incest, bigamy, rape, sodomy, bestiality, cruelty or desertion. It was nearly 70 years more (until 1923) before women, like men, could sue for divorce on grounds of simple adultery.² Until 1857, all a wife’s property passed into the ownership of her husband at marriage, and she had no legal right to acquire or own property while married. In 1857, a separated wife gained the right to keep property and earnings; those still with their husbands did not. In 1870, married women were given ownership of earnings and investment income only; in 1882, the Married Women’s Property Act allowed them to retain ownership and control of earnings, property, inheritance and gifts; by 1935, remaining restrictions had been removed.³

Against such a background, it is no wonder that to a late-Victorian writer Roman women seemed unrestrained to the point of licence. The author, however, contrasts Roman women unfavourably with those of contemporary England. The former, lacking any intellectual or public interest, had, it is claimed, fallen prey to the worst lures of pleasure and depravity. In contrast, contemporary English women of the upper classes were notable for their interest in intellectual pursuits and good works. The author attributes this to the availability for them of higher education, a phenomenon at that time barely one generation old.⁴ No notice is taken of the fact that in neither society were women able to vote or to hold public office.

As late as 1971, the Act of 1882 was seen as a major step on the road towards equality for women. A (female) barrister wrote (Puxon 1971:260–1) ‘By a stroke of the pen the emancipation of women was made inevitable.’ She wondered what the monarch who assented to the Act (Queen Victoria) would have thought,

Social attitudes have undergone striking changes in the last 25 years. Expectations have risen, and there has been a corresponding re-evaluation of the degree of independence already achieved by women in modern society. There have been fresh analyses—not always objective—of the purposes allegedly served in history by marriage, the family and family law.5 The ‘independence’ of Roman women may well seem less striking now, especially since there is more awareness of the situation of women outside the wealthy upper classes. The Act of 1882, it has been said (Sachs and Wilson 1978:137)

Similar points have arisen more than once in foregoing chapters, in relation to Roman women. It is not necessary to repeat here all that has already been said on the functions and authority of tutors, or the actual or expected consequences of feminine inexperience in business matters. According to Callistratus (D. 49. 14.2.7), several emperors issued rescripts (concerning the rights of the fiscus) to prevent people from damaging their own interests by inadvisable admissions. Those categories thought to be specially at risk from inexperience and ignorance of their rights were rustics and women.

A century ago married women in England achieved in essence (though the process was not complete until the Matrimonial Causes Act of 1937) what Roman women sui iuris and in free marriage had had as far back as our historical knowledge extends—separate property in marriage. The disadvantages of this have subsequently become apparent, and legislation beginning in England in 1969–70, and paralleled in other countries, has made some steps towards implementing the idea of community of property in marriage or, alternatively, maintaining a wife’s standard of living after divorce. It was realised that separation of property in marriage leaves many women at an economic disadvantage when the marriage ends. The demands of motherhood and the home give most women less scope to earn money on their own account. Husbands’ earned income, and often most of the property, is in their names. The effect is the de facto economic dependency of women in marriage unless they are independently wealthy or have a full-time career.⁶

The same (except the ‘full-time career’, which was not a commonly available option) was true for Roman women. Moreover, the range of employment open to Roman women appears to have been limited and the rewards low. In addition, as tradesmen in a pre-industrial society in general operated small-scale family businesses, it is likely that women of the family who participated, whether in producing or in selling, merely provided their labour, while ownership and financial gains remained with the husband. At the end of a marriage, a wife was entitled to her dowry; at the humbler levels of society, that would not amount to much, probably not to a subsistence. On widowhood, she was dependent on her husband’s testamentary generosity for any share in his property; on his intestacy, she ranked below cognates, and her situation compares very unfavourably with that of a widow today.7

However, to have prescribed community of property by law would have been foreign to the whole way of thinking of the Romans, in which the primary unit for preservation and transmission of property was the familia, with descent through the pater, and the wife sine manu unavoidably was an outsider.

Since both law and literature concentrate on the wealthy upper classes, there is a tendency, in studying Roman women, to attend particularly to that minority. For them, separate property in marriage would often suffice to ensure them substantial economic independence. It is as well, however, to remind ourselves that (ignoring, for the moment, the question of the tutela) the only ones who actually had financial autonomy (or, indeed, any other kind) were those who outlived their fathers. Many did not.

Divorce, however it might seem from the viewpoint of England in 1894, is not of much help in gauging the level of female emancipation in ancient Rome. In the first place, neither husband nor wife, if still in potestate, could initiate a divorce; that had to be done through the pater. Among those sui iuris, husbands were perhaps more likely to initiate divorce than wives, having additional motives, such as political relationships, or the desire to secure an heir to the property. Among the poorer classes, economic considerations favoured the husband, though they probably operated to discourage divorce in general—a wife’s labour might not be easily replaced.

It is noteworthy that the authors often cited as offering evidence that divorce was rife among the upper classes of Rome itself in the Principate—namely, Seneca, Juvenal and Martial—are actually complaining about the frequency with which, they allege, some women divorce and remarry. It is no more than ‘legalised adultery’ says Martial (6.7), a sign of immorality and temperamental unchastity. In other words, the double standard is operating. Whatever the legal freedom to divorce might be, moral attitudes in Rome (at least among the male authors—we do not hear from the women) still promoted the ideal of wifely fidelity and chastity in marriage, because of the importance attached to securing the legitimacy of heirs. Since a woman would not be divorcing in order to obtain political advantage, or an heir, through another alliance, sex might seem a likely motive—and that was undesirable, from the male point of view, since it suggested that her interest had already been straying outside her marriage. Until comparatively recent times—less than twenty years ago—a similar stigma attached to divorce in England, as well as other parts of Europe, and even more strongly, since it was reinforced by the sacramental character of church marriages. The strictures of Roman moralists found ready acceptance as representing the actual state of affairs in the society they criticised. Raepsaet-Charlier (1981–2:167) has noted that the “received opinion’ on the decadence and immorality of ancient Rome was crystallised in the 19th century, precisely when female emancipation was beginning to run ahead of current moral attitudes.⁸

Whether the incidence of divorce in Roman society was particularly high is not easy to determine. Detailed evidence is lacking to provide anything like a representative sample even of the upper classes. Raepsaet-Charlier (1981–2), compiling a prosopography of 562 women of senatorial rank marrying, divorcing or remarrying over a period of about two centuries between 10 B.C. and A.D. 200, found only 27 certain and 24 possible divorces, and of these 20 were in imperial families (15 Julio-Claudian). Five of the grand total of 51 are accounted for by one woman, Vistilia, cited as a natural curiosity by the elder Pliny (N.H. 7.5) for having had seven children, mostly born prematurely or after unusually long gestation, by six husbands. The ease of divorce and the essentially contractual and non-sacramental character of Roman marriage, as a shared undertaking dissoluble by either party, might seem to favour a high incidence; however, as we have seen, other factors, social and economic, came into play as well.

Over her children, whether legitimate or illegitimate, the Roman woman had, throughout the classical period, no legal rights at all, except, eventually, a very limited right to intestate succession. This compares badly (at least from the mother’s point of view) with the current situation under English law, which gives equal rights to both parents of legitimate children and sole rights to the mothers of illegitimate children (though the father may apply for a court order granting custody or access) and may oblige the father of an illegitimate child to provide maintenance.9

This disability and others, such as the sctum. Velleianum and those arising from the tutela and the powers of the patron, derive from the primacy in Roman law of the familia headed by a pater. Some legal disabilities derived from women’s political incapacity. Although of citizen status and able to produce citizen children, women did not have a vote and could not hold public office. This ban, understandable enough in a society in which, for much of the historical period, citizenship involved an obligation to armed military service, remained in force throughout the classical period, and operated beyond the immediate sphere of politics. Lawyers explained certain legal disabilities of women on the accepted principle that women were excluded from ‘citizen functions’ (civilia officia). So, women could not sit on criminal court juries (presumably since condemnation in such courts could sometimes result in loss or curtailment of the rights of male citizens). They were not allowed to bring suit in such courts either, except in cases in which they had a direct personal interest, such as the murder of a child, parent or patron. Two other exceptions were made, neither involving infringements of the rights of Roman patres. The Senate decided that, as patrons’ daughters, women could be allowed to bring suit under the lex Cornelia testamentaria (of Sullan date) concerning a freedman’s will; this decision probably postdates the Augustan legislation on inheritance from freedmen. The emperors Severus and Antoninus stated in a rescript that women should be allowed, in the public interest, to bring charges relating to the annona (food supply).¹⁰ Since women had no standing in the comitial assemblies, they presumably did not have the right of provocatio, appeal to the people, against the imposition by a magistrate of death and certain corporal punishments (though this right was probably not available at all, away from Rome itself, until the last century of the Republic, and was effectively replaced later by appeal to the emperor).¹¹ As we have already seen, however, the praetor under the Republic, and later the Senate, sometimes delegated punishment, and even judgment, to the women’s own families.

In civil courts, women could not act on behalf of others (as cognitor or procurator) either on the plaintiffs side or the defendant’s.¹² They were entitled to bring suit in their own behalf (with tutorial consent), though the stories told by Valerius Maximus (8.3) suggest that it was rare for them actually to appear in court. He says of those who did that ‘their natural condition and the modesty befitting the stola (i.e., by metonymy, a Roman lady) did not avail to make them keep silence in the forum and law-courts.’ One such woman, Gaia Afrania, wife of a senator, was notoriously litigious and insisted on representing herself in court. Valerius notes the date of her death (48 B.C.), remarking sourly that it was better to record the date of the death of such a monster, rather than its birth.

Nevertheless, wealthy women, especially from the late Republic onwards, give the appearance at least not only of enjoying a good deal of de facto autonomy in their personal lives and the control of their property, but also of playing a role in the public sphere. In the provinces especially, they are epigraphically attested as conferring benefactions, holding priesthoods and honorific magistracies, as ‘patrons’ and “mothers’ of colleges, and so on. Almost 90 Roman women are attested as accompanying husbands and other male relatives on provincial duty, a practice deplored by Ulpian (D. 1.16.4.2), who reminds governors of a senatorial decision in A.D. 20 (a mistake for 24) that they were to be held responsible for any misdeeds by their wives.13

These highly visible activities, however, are more formal than real. The expenditures are essentially liturgical, the offices honorific, the two together serving to buttress and to justify the continuance in power of the ruling élite to which, through their husbands and fathers, they belonged.¹⁴ Provincial women had no say in the actual business of decision-making and no membership of the governing bodies, any more than the governors’ wives had authority actually to govern.

From the city of Rome itself, there is a handful of anecdotes, mainly from the Republic, about the wives and other female relatives of Roman politicians, which are from time to time cited as evidence that upper-class women were actively and effectively involved in politics.¹⁵ It would be stretching the evidence, however, to say that they actually determined policy and directed events. Fulvia, wife of Antony, is an exception (and even she was working in her husband’s interests). The activities of the others amount to little more than acting as message-bearers for their husbands, providing salons at which the men could meet privately, or using their wealth and social connections to help ingratiate their husbands, sons or lovers with their peers and so further their careers. It is probably no accident that there are very few such attestations, outside the imperial household, under the empire. Their influence was exercised on a personal basis, on private occasions in private houses. Their role was essentially vicarious and bears more than a passing resemblance to that of the loyal, involved American ‘corporation wife’.

Some may perhaps have grown more assertive with advancing years and confidence, like Sempronia, who hung around on the fringes of the Catilinarian conspiracy, or Brutus’ mother Servilia, who undertook in 44 B.C. to cancel her son’s unwanted appointment as corn commissioner, and who apparently rudely snubbed Cicero at a meeting at her house at which the matter was discussed.¹⁶ The corn commission was dropped, but we do not actually know that it was Servilia’s doing, any more than we know that Sempronia did anything effective to further the conspiracy.

As young, inexperienced brides, many are likely to have followed (and some to have remained in) the pattern of Pliny’s hero-worship-ping young bride Calpurnia. According to the gratified report he sends her aunt (Ep. 4.19), she indulged in unreserved and uncritical admiration of his literary products, memorising passages, setting his verses to music and hiding (in a rather un-Roman way) behind a curtain to hear the commendations at his literary readings. In his law-court activities, similarly, she took a partisan interest—not, apparently, in the actual details of the cases, but in the audiencereaction Pliny evoked.

As for women of the lower classes, lack of the vote may not have troubled them much. The votes of their menfolk were only sporadically important in the Republic and soon ceased to be of any practical importance under the empire.