CASE 89: Gaius Gracchus and Licinia's Dowry
D. 24.3.66 pr. (lavolenus libro sexto ex Posterioribus Labeonis)
In his rebus, quas praeter numeratam pecuniam doti vir habet, dolum malum et culpam eum praestare oportere Servius ait.
ea sententia Publii Mucii est: nam is in Licin[n]ia Gracchi uxore [statuit], quod res dotales in ea seditione, qua Gracchus occisus erat, perissent, ait, quia Gracchi culpa ea seditio facta esset, Licin[n]iae praestari oportere.(Javolenus in the sixth book from Labeo’s Posthumous Writings)
With regard to property (other than counted-out money) that the husband has as a dowry, Servius says he must be liable for intentional harm and for fault (dolus malus and culpa). This is the view of Publius Mucius Scaevola; for in the case of Licinia, the wife of (C.) Gracchus, because (her) dowry property had perished during the uprising in which Gracchus was killed, he says that Licinia should be compensated because Gracchus was at fault for the uprising.
1. Liability for Harming the Property. As you will recall from Case 70, a husband who harms property in the dowry is liable if the harm results from his deliberate misconduct (dolus) or from his negligent fault (culpa); the jurists eventually also required him to exercise a degree of diligence comparable to that he showed for his own property. This Case refers to a very early juristic decision related to the death of the popular politician Gaius Gracchus in 121 B.C. The Roman Senate had condemned Gracchus’s political maneuvers as seditious, and on this basis his death at the hands of a mob was justified; but in their zeal the mob had also destroyed dowry property belonging to his wife, Licinia, who now wishes to receive compensation from Gracchus’s estate. Does it seem fair to hold that Gracchus should be held responsible for causing this loss? Is this what you would normally think of as negligence?
2. Publius Mucius Scaevola.
Would it surprise you to learn that P Mucius Scaevola, the jurist who issued this opinion, was a political enemy of Gracchus? Gracchus’s wife, Licinia, came from a wealthy and well-connected family P Mucius is the father of Q. Mucius Scaevola (consul in 95 B.C.), a much better known jurist.3. A Final Assessment of Dowry. On the basis of what you have read so far, evaluate the following statement: “[T]he existence of dowry... was a central aspect of the family system, related to class differences that were relevant to women as well as to men. It structures the whole problem not simply of choice of partner but of the position of women throughout the marriage, especially after the death of the husband when widows often came to control what, in gross, was considerable wealth.... Wealth of course is not to be translated directly into authority and even power, but it makes an important contribution. In general dowry represented an empowerment of women” (Jack Goody, in The Development of the Family and Marriage in Europe, 1983, writing of dowry “in Eurasia generally”).
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