CASE 59: Q. Mucius's Presumption

D. 24.1.51 (Pomponius libro quinto ad Quintum Mucium)

Quintus Mucius ait, cum in controversiam venit, unde ad mulierem quid per­venerit, et verius et honestius est quod non demonstratur unde habeat existimari a viro aut qui in potestate eius esset ad eam pervenisse.

(Pomponius in the fifth book on Quintus Mucius)

Quintus Mucius says: “When dispute arises about the source of property that came to a wife, the more accurate and respectable course is that when its origin is unclear, it be held to have come to her from her husband or a person in his power.” Quintus Mucius apparently approved this so as to avoid an inquiry re­garding a wife’s unseemly profit.

1.      A Demeaning Inquiry. The problem discussed in this Case might come up in a variety of circumstances, wherever it is necessary to separate the wife’s prop­erty from her husbands. Some of this property may be of indeterminate ori­gin, perhaps because no one alive remembers. The “bright line” rule proposed by Q. Mucius Scaevola (consul in 95 B.C.), the earliest major Roman jurist, merely establishes a legal presumption for dealing with such property; it ap­pears that, for example, the woman could still prove that she had purchased the property herself or been given it by a third party, but in any case the bur­den of proof is on whoever alleges an origin other than her husband (so Alexander Severus, C. 5.16.6.1; A.D. 229). Why did Q. Mucius feel that this presumption was “more accurate and respectable”? What is the “inquiry” that Pomponius thinks the earlier jurist feared? See also Case 202.

2.      Danger to the Wife.

D. 24.3.22.8 (Ulpianus libro trigesimo tertio ad edictum)

Sin autem in saevissimo furore muliere constituta maritus dirimere quidem matri­monium calliditate non vult, spernit autem infelicitatem uxoris et non ad eam flec­titur nullamque ei competentem curam inferre manifestissimus est, sed abutitur dote[m]: tunc licentiam habeat vel curator furiosae vel cognati adire iudicem com­petentem, quatenus necessitas imponatur marito omnem talem mulieris sustenta­tionem sufferre et alimenta praestare et medicinae eius succurrere et nihil praeter­mittere eorum, quae maritum uxori adferre decet secundum dotis quantitatem. sin vero dotem ita dissipaturus [ita] manifestus est, ut non hominem frugi oportet, tunc dotem sequestrari, quatenus ex ea mulier competens habeat solacium una cum sua familia, pactis videlicet dotalibus, quae inter eos ab initio nuptiarum inita fuerint, in suo statu durantibus et alterius exspectantibus sanitatem t mortis eventum.

(Ulpian in the thirty-third book on the Edict)

But if, after a wife becomes violently insane, her husband cunningly declines to end the marriage but instead ignores his wife’s distress and does not attend to her and clearly provides her no adequate care, but misuses her dowry, then the mad woman’s curator or her relatives have leave to approach a competent court to the extent that her husband is required to provide all such subsistence of the woman and to furnish maintenance and to provide medical aid and (generally) to omit nothing that a husband ought to provide his wife, in accord with the size of her dowry.

But if it is clear that he will waste the dowry as a provident man would not, then (they can force) the dowry to be sequestered up to the extent that a (men­tally) competent woman and her household would be indemnified from it; but of course the dowry agreements that the parties entered between themselves at the start of the marriage remain in their (former) condition and await the other per­son’s recovery or eventual death.

1.A Desperate Situation.

2.      The Dowry? As this Case suggests, the dowry was normally linked to the wife's maintenance, although this link was mainly traditional. As you read the following Cases, try to decide how well the link would have worked in practice.