C“Womanly weakness”

size=1 color=black face="Times New Roman">Because the original purpose of tutela mulierum [see Introduction to Part III] had been forgotten by Gaius' time, he and other legal writers looked for another reason for a woman's need to have her legal actions authorized by an unrelated male.

1    “Womanly weakness” in Roman legal sources

Legal references to womanly weakness go back at least to the early third century C.E., and Joelle Beaucamp has shown that they cannot all be due to post-classical interpolations, as used to be supposed [Beaucamp 1976; 1990, 11—15]. The concept of “womanly weakness” may have been alien to Roman law originally, but it was useful for explaining legal constraints on women's public actions [Clark 1993, 56—62; Crook 1986a; Dixon 1984; Gardner 1993, 85—109; Marshall 1989, 51^].

Gaius, Institutes I.144: [See III.A.1 for the beginning of this passage.]... For the ancients wanted women, even if they are of full age, to be in tutela because of their lightmindedness {animi levitas}.

Later, however, Gaius expresses skepticism about the traditional explanation:

I.190: However, almost no reason of value appears to recommend that women of full age be in tutela. For the reason which is commonly believed, that since they are very often deceived due to their lightmindedness, it was right for them to be ruled by the authority of tutors, seems to be specious rather than true...

But the concept of “womanly weakness” persisted in legal texts of the third and fourth centuries. The Rules of Ulpian, dating to the early fourth century, repeats Gaius' explanation for tutela mulierum but not his reservations about the necessity for it:

Rules of Ulpian 11.1: Guardians are appointed for both males and females, but for males only as long as they are below puberty, on account of the weak­ness of their age; however, for females both below puberty and above, both on account of their weakness of their sex (sexus infirmitas) and their ignorance of legal affairs [see also Part III.A.2].

Women's alleged “weakness” was cited by jurists and emperors as the reason for the different legal treatment of men and women. Thus their weakness explained why in some circumstances women were allowed ignorance of the law [D.22.6.9 pr; Part IVA], why women were not allowed to be informers [D.49.14.18 pr; Part V.A], and why mothers could not serve as guardians of their fatherless children [Chapter 5, Part II.A.3]. Women's infirmitas was even used to explain why the obligation to serve as a decurion (town councillor) was transmitted through the paternal rather than the maternal line:

Cod. Theod. 12.1.137.1, 9 August, 393

Emperors Theodosius, Arcadius and Honorius Augusti to Rufinus, praeto­rian prefect:

[the beginning of the law is omitted here]... (1) Of course, no one shall be bound (to curial service) by the bonds of maternal blood alone, since the weakness of women never renders them liable for discharging this sort of duties, from which it shall be considered immune. Given at Constantinople on the fifth day before the Ides of August in the third consulship of Theodosius Augustus and the consulship of Abundantius.⁸²

Several fourth-century laws mention the possibility of different, more lenient penalties for women in certain cases.

Cod. Theod. 9.14.3.2, 4 September, 397

Emperors Arcadius and Honorius Augusti to Eutychianus, praetorian prefect:

[the beginning of the law is omitted here]. However, to their daugh­ters, however many there are, we wish to fall only the Falcidian portion⁸⁴ from their mother's property, whether she has died testate or intestate, so that they may have the sustenance in the manner of an ungrateful daughter rather than the benefit and name of heir in full. For the sentence ought to be gentler in regard to those who, we trust, will be less daring due to the weak­ness of their sex. [the rest of the law is omitted here]

Given on the day before the Nones of September at Ancyra in the consul­ship of Caesarius and Atticus.⁸⁵

Not all late antique emperors made special concessions to feminine “weakness.” In 424, a law of Theodosius II set a statute of limitations of thirty years for making claims to property in the hands of another, and explicitly denied that exception could be made due to “frailty of sex” [Cod.

2    “Womanly weakness” in the papyri

In papyri from Roman Egypt, women themselves invoke “womanly weakness” in their peti­tions to authorities. In particular, widows and unmarried women whose fathers were dead could claim to have been taken advantage of by unscrupulous males because of their vulnera­bility and lack of protection. It is tempting to suspect that, in Ulpian’s words [D.16.1.2.2—3; in Part IV.D], women sometimes claimed legal assistance out of calliditas (cleverness, cunning) rather than infirmitas (weakness, vulnerability). Evidently, claiming to be weak and liable to deception by others due to one's sex was a useful rhetorical device for attracting sympathy from officials.⁸⁶

The following papyrus documents from the city of Oxyrhynchus, all in Greek, illustrate the types of situation in which women might claim “womanly weakness” as a reason for receiving aid or special treatment.

In the agreement below, Demetria (accompanied by her kyrios; see III.C), authorizes her grandson to serve as her legal representative in a legal dispute, claiming she cannot go to court herself because of “womanly weakness.”⁸⁷ This Greek document dates from around the time that the senatusconsultum Nelleianum was enacted [Part IV.D}. Demetria was not a Roman citizen (she calls herself “citizen,” but this refers to Alexandrian citizenship⁸⁸) and so would not have been affected by the Senate's decree. But the fact that both the Roman Senate and a provincial woman give feminine “weakness” as a reason for women to avoid legal obligations suggests it was a standard excuse, which it was thought to be to a woman's advantage to cite.

Demetria was probably fairly elderly, since her grandson is old enough to be her represen­tative.

Demetria's kyrios, also a relative, does not represent her in court; he merely gives his approval when she appoints her grandson as her representative. Perhaps her grandson had some legal training, or had the time and financial means to undertake what could be a lengthy suit involving expense and travel.

P.Oxy. II.261, 55 C.E.

Second year of Nero Claudius Caesar Augustus Germanicus Imperator,_______

of the month Neos Sebastos,⁸⁹ in the city of Oxyrhynchus of the Thebaid.

Demetria daughter of Chaeremon, a citizen woman, with her kyrios, Theon son of Antiochos, of the Auximetoreian tribe and the Zeneian deme,⁹⁰ the husband of her granddaughter Demetria, a citizen woman, makes an agreement with her grandson Chaeremon son of Chaeremon, the brother of her granddaugher Demetria, of the Maronian deme, in the street,⁹¹ about those matters which Demetria, the one making the agree­ment, is disputing with Epimachos son of Polydeukes, or (those matters which) Epimachos himself also is disputing with her. Not being able to be in attendance in court on account of womanly weakness, (Demetria agrees) that she has appointed the afore-mentioned grandson Chaeremon as her legal representative, before every authority and every court, just as would be possible for Demetria herself, the one who has made the appointment, if she were present.

In the following papyrus, a young woman petitions the prefect (governor of Egypt) for help in recovering property inherited from her mother which she claims her maternal uncles appropriated.⁹² It appears that Aurelia Didyme's mother, a widow, and her brothers lived in one household, each having inherited one-third of the property from their father (Aurelia Didyme's grandfather). When Aurelia Didyme's mother died, her brothers took over her share and refused to let Didyme have her mother's third, which was hers by right as her mother's heir. The complaint that a wicked guardian, usually an uncle, has cheated fatherless minors of their rightful inheritance is quite frequent in the papyri; often, as here, the minor is a female, sometimes petitioning on behalf of her siblings as well as herself.⁹³ In her petition, Aurelia Didyme does not say that her uncles were her guardians (she appears to have no other kin to assist her). She emphasizes instead her orphan state and the weakness of her female nature, which have caused her uncles to take advantage of her.

P.Oxy. XXXIV.2713, c.297 C.E.

To Aristios Optatus, the most eminent prefect of Egypt from Aurelia Didyme, daughter of Didymos from the splendid and most splendid city of the Oxyrhynchites. It is difficult to be wronged by strangers, but most diffi­cult (to be wronged) by those who are also relatives. Dioskoros, my grandfather on my mother's side, had in all⁹⁴ three children, Theon and Dioskoros and Ploutarche, my mother, and he died leaving them as his heirs. But, after some intervening time, my mother paid her debt,⁹⁵ with me being a minor and an orphan. You know quite well, my lord governor, that the race of women is easily despised on account of the weakness of our nature. For all the things left to us from the inheritance falling (on us), since we were one household and one family, were in the same house in which they were there co-resident⁹⁶ — I mean, of course, slaves and building-sites⁹⁷ and household goods and movables were undivided. But in the meantime, my mother's brothers from the same mother, in collusion with each other for the purpose of defrauding me, with empty and vain foolishness took posses­sion of the rest as they wished, each (taking possession) of what he wanted of the slaves and all the other things, thinking nothing of me but, so to speak, even thrusting me out from the third part of the inheritance that fell to me. Now, at least, I have recovered, with the aid of your vigilant fortune, and am beginning to recognize that I can go back to no one else other than you, the benefactor and guardian of me and of everyone. (And so) I have hastened to implore you that, having considered me in my loss, you order, whenever it seems best to you, my maternal uncles to be compelled to restore to me the shares belonging to me, that fell to me from succession to my mother, along with the profits from the slaves and house-rents and all the rest, and having recovered my mother's property by your good faith and noble character, I will acknowledge gratitude to your fortune forever. Farewell.

[in a second hand]Aurelia Didyme, have sent this for handing in.

I, Aurelius Thoneis, have written on her behalf because she does not know letters.

In the following petition to the prefect, a widow (whose full name has been lost) claims to have been cheated by the men she hired to help her run her estate while her adult sons were away in the army.⁹⁸ She was clearly wealthy and of high status. She describes herself in the petition’s opening as lamprotate (“most splendid”), a word often considered the Greek equiva­lent of the Latin clarissima, denoting senatorial rank [see Part VI.A]. It is unlikely, however, that this petitioner was of senatorial status, and the term lamprotate seems to have been used more loosely at this period to indicate high social standing [Arjava 1991].

Petitions in later Roman Egypt become more fulsome and elaborate, and here the peti­tioner artfully combines the pitiableness of her vulnerability as a woman without menfolk with pointed reference to her wealth and status. No kyrios is mentioned; a woman did not need to have a kyrios approval to send a petition. However, Aurelia Gl----------------------------- may not have had

a kyrios at all, since by the fourth century the kyrios role was being taken over by the husband and widows do not appear to have kyrioi [see Part III.E]. (For another widow who claimed to have been taken advantage of by an unscrupulous man after her husband's death, see Aurelia Artemis in Chapter 5, Part II.C).

P.Oxy. I.71, 303 C.E.

To Clodius Culcianus, the most eminent prefect of Egypt, from Aurelia Gl..., most illustrious, living in the city of the Arsinoites.

You come to the aid of all, lord governor, and you render to all their own, especially to women on account of the weakness of their nature. For this reason I too approach your greatness, being very hopeful of receiving aid from you. Since I have very many [estates] around the Arsinoite nome itself, and pay a considerable amount of public taxes — I refer to payments for public purposes and military supplies — and as I happen to be a weak woman and a widow, with my children in the army and away in foreign parts, I took on as an aid to myself and for the management of my affairs, first a certain Secundus, and then also Tyrannus, thinking that they would keep good faith with me. But they turned out to be crooked and robbed me, and taking away from me the possessions which came into their hands, they never brought to me the customary accounts, perhaps recognizing their error in the things which they did, having snatched away from me also two cows⁹⁹ from those which I have... of the same estates of mine... having contempt for my inexperience. Therefore. your auspicious visit, I flee to your feet, my lord, seeking... if it seems good to your excellence... to me your most powerful subscription¹⁰⁰. [the rest is too fragmentary to read]