D Dowry

It was customary in Roman marriages for the bride to bring a dowry, which could include land as well as money and movable property.

1   Dotal pacts and the purpose of dowry

Since property was involved, dowry agreements were often made in writing, even when there was no marriage contract per se. The pact would usually be made before the marriage took place and the contracting parties would be the paterfamilias of each party. If his father were dead, the groom would be the contracting party. Women no longer under paternal power needed the agreement of their tutor to make a dowry pact, since transfer of property was involved [see Chapter 1, Part III.A].

D.23.4.12.1 (Paulus): Some of the arranged pacts which are accustomed to be introduced before or after the wedding suit the wish (of the parties involved), as for instance that a woman is to support herself with the promised dowry and the dowry is not to be requested from her as long as she is married, or that she is to offer a certain sum of money to her husband and is to be supported by him, and others similar to these.

Sent. Pauli II.xxi^b.1: Dowry either precedes or follows the marriage, and therefore it is possible to give it either before or after the wedding. But if it has been given before the marriage, there is an expectation of its (the marriage’s) advent.

While a private transaction, dowry also had a public importance:

D. 23.3.2 (Paulus): It is in the interest of the state that women have their dowries secure, on account of which they are able to marry.

D.24.3.1 (Pomponius): An action for dowry is always and everywhere of special importance; for it is in the public interest that dowries be preserved undiminished for women, since it is especially necessary that women have dowries for the purpose of procreating offspring and replenishing the state with children.

2    Providing a dowry

Most often the dowry would be provided by the bride’s father, if still alive, or by the bride herself, if she were no longer under patria potestas and had her own property. Mothers and other relatives, and even benevolent friends from outside the family might also contribute to a dowry. Dowry contributed by the bride’s father or a male ascendant was called “profectitious dowry;” that contributed by others was “adventitious” [Treggari 1991a, 350—1].

D.23.3.41 pr.

D.23.3.44 pr. (Julian): If a father had promised dowry in the name of his daughter and had emancipated her (from paternal power) before the wedding, the promise is not annulled. For even when the father died before the wedding, nevertheless his heirs will remain obligated to his promise.

If the union was not iustum matrimonium, there was, legally speaking, no dowry [see Chapter 3 on non-legal unions]. Therefore a father who promised his daughter a dowry was not obligated to provide it if she made an illegal marriage:

D.23.3.3 (Ulpian): The name of dowry is not given to those marriages which are not able (by law) to exist. Nor can there be a dowry without marriage. Therefore, wherever the name of (legitimate) marriage does not exist, there is no dowry.

But if her marriage subsequently became valid, he then had to pay the dowry [see Part I.C. on the importance of age and consent].

D.23.3.68 (Papinian): The promise of a dowry will not be less valid because the father was initially unaware that there had been a marriage, if afterwards he consented, since every promise of dowry accepts the unstated condition of a future marriage. For even if a girl less than twelve years has been led as wife (into her husband's home) as if she were older, (the dowry) will first be requested at the time when she has begun to be older than twelve at the same man's house. [the rest of the passage is here deleted]

Contributing toward a relative’s dowry, or the dowry of the daughter of a friend or depen­dent, was a mark of pietas (dutifulness born from family feeling), and also a sign of wealth and noblesse oblige.

Among her other good deeds, “Turia,” along with her sister, undertook to provide dowries to needy family members and social connections (necessarii, who could be relatives or clients, or others connected with the family):

Laudatio Turiae I.42 and 46—8, Rome, late 1st c. B.C.E.

42: With a sense of family duty (pietas), you demonstrated your [generosi]ty not only to very many social connections but also especially to your family (familia)... 46—8: In order that the same women might be able to obtain a match worthy of your family, you provided dowries which, though agreed upon by you, C. Cluvius (her sister's husband) and I by common intent undertook (to pay); and approving your generosity, in order that you not be penalized from your own patrimony, we supplied our own family property and gave our own estates for their dowries.

Likewise, the wealthy senator Pliny the Younger contributed 100,000 sesterces to the dowry of Calvina, his relative by marriage (adfinis), whose father had died in debt.¹⁶ Calvina was her father's heir; note Pliny's assumption that as a woman, she would have found a debt- burdened estate particularly difficult.¹⁷ His gift is a sizable sum; 100,000 sesterces was the census required of a town councilor in Pliny's hometown of Comum.

Pliny, Epistles II.4, late 1st—early 2nd c.

Gaius Pliny to his own Calvina: If your father had owed money to many people, or to any one person other than myself, it would perhaps have to be doubted, whether you would enter upon an inheritance which would be burdensome even for a man.

Pliny also gave a friend 50,000 sesterces to help with his daughter's dowry. Here the daughter was still under patria potestas, and so the money was a gift to the father, not to the woman herself [Gardner 1998, 86]:

Pliny, Epistles VI.32, late 1st—early 2nd c.

Gaius Pliny to his own Quintilian: Although you yourself are most moderate, and have brought up your daughter in such a way as befitted a daughter of yours (and) a granddaughter of Tutilius; however, since she is about to be married to the most honorable man, Nonius Celer, on whom the matter of public duties places a certain need for splendor, she ought to have use of clothing (and) attendants in accordance with her husband’s position. Of course, status is not increased by these things, but it is adorned and equipped. Furthermore, I know that you are most fortunate in regard to intellect, but modest in resources. And so I claim a part of your burden for myself, and, like a second father, I confer upon our daughter 50,000 sesterces. I would offer more, except that I believe that you are able to be prevailed upon by your sense of shame (verecundia) not to refuse (my offer) only because of the modest amount of my little gift.

The size of the dowry would depend on the social and economic standing of both parties. It was important, as Pliny points out, that a wife have the resources appropriate to her husband's position, and a future husband clearly had an interest in receiving a sizable dowry [Treggiari 1991a, 340—8]. On the other hand, if a woman offered a dowry disproportionately higher than her family's wealth, it might suggest that her family was overly-anxious to marry her off, and was hoping to entice prospective bridegrooms. Dowries were not the crippling expense for the wife's family that they were to become in some later European societies, but providing a suitable dowry at the right time might still present difficulties to Roman fami­lies [Treggiari 1991a, 346-8, modifying Saller 1994, 204-24 and Saller 1984].

A man who accepted a smaller dowry than might be expected could be seen as gracious and generous. So, at least, suggests the second-century North African writer and intellectual Apuleius. Apuleius was accused in court of having literally bewitched his wife Pudentilla (a long-time widow about ten years older than Apuleius) into marrying him; we have his defense speech (Apologia), but not the speeches of his opponents [see also Chapter 1, Part III.B; Chapter 5, Part I.B; and Parts I.D.3 and I.E.2 below]. According to Apuleius, whereas he happily accepted a small dowry (relative to his wife's overall wealth), one of his opponents, Herennius Rufinus (father-in-law of one of Pudentilla's sons by her first marriage) had over­endowed his daughter because she had (allegedly) lost her virginity to a former fiance and was therefore “damaged goods.” Pudentilla's dowry came to about 7 percent of her entire prop­erty, equivalent to a year's income on her estate [Saller 1994, 216-17].

In court, Apuleius presented the marriage contract [tabulae nuptiales) which stated the terms of the dowry, including provisions for its eventual return to Pudentilla's sons. He chal­lenged another opponent, Sicinius Aemilianus (brother of Pudentilla's first husband), to read the agreement:

Apuleius, Apologia 92, 158/9 C.E.

These things, as I say, I will show from the contract itself. There may be a chance that Aemilianus may not even believe the mere 300,000 sesterces written in the contract and the right of recovery of (the dowry) that is given to the sons of Pudentilla. Take that contract in your own hands, give them to your instigator Rufinus; let him read them; let him be ashamed of his swollen pride and his ambitious begging. Since indeed, he himself, though needy and destitute, endowed his daughter with 400,000 sesterces — which he had received on loan! But Pudentilla, a wealthy woman, was content with 300,000 sesterces of dowry, and she has a husband who is content with the empty name of this tiny little dowry — though he has often spurned many huge dowries in the past — who reckons up nothing else except his own wife and, in a wife’s concord and mutual love, sets aside all household goods and all wealth. [The rest of the passage is omitted here.]

Apuleius goes on to say that the most valuable dowry a bride could bring was her virginity - something which could be offered by neither Pudentilla, a middle-aged widow with two grown sons, nor (according to Apuleius' slur on her reputation) the sexually experi­enced daughter of Rufinus!

3    The dowry during marriage

During the marriage, the dowry belonged to the husband, and he could invest it or use the income from it. Dowry was intended to offset the expenses of maintaining the wife, the “burdens” of marriage [Saller 1984; 1994, 207-11].

D.23.3.1 (Paulus): The purpose of a dowry is perpetual, and, by the wish of the person who gives it, it is established so as to be always in the husband's keeping.

D.23.3.7 pr-1 (Ulpian): Equity suggests that the profit from the dowry ought to pertain to the husband; for since he undertakes the burdens of the marriage, it is right that he also receive the profits. If the profits have been acquired while the marriage is in existence, they will not be (part) of the dowry. But if they have been acquired before the wedding, they are converted into dowry. Unless by chance something (else) has been agreed between future husband and his intended wife: for then the profits are not returned, as if a gift had been made.

Sent. Pauli II.xxii.1: While the marriage is in existence, the fruits gath­ered from a dotal estate accrue to the husband's gain, and indeed are prorated for the year in which the divorce has occurred.

But though the husband possessed the dowry during the marriage, if the marriage ended by divorce or by the husband’s death, the wife (or her paterfamilias, if still alive) could bring a legal action to have her dowry returned to her [see Chapter 4, Part I.C.] Therefore a husband would be unwise to spend or otherwise alienate his wife’s dowry, and the wife was considered to have a very legitimate interest in the disposition of the dowry during the marriage. Indeed, despite the fact that legally the dowry belonged to the husband during marriage, the general popular view considered it the wife’s property. This feeling is expressed by the jurist Tryphoninus in the early third century: “Although the dowry is among the husband’s posses­sions, however, it is the woman’s... ” [D.23.3.75; cf. D.2.8.15.3 (Macer)]. This led to the “paradox that while the husband was legally owner of the dowry, his ownership was hedged about by social expectation and, slowly, by legal limitations” [Dixon 1992, 51—2].

For instance, Augustus’ adultery law restricted the husband’s right to sell or give away the dowry, presumably because this would create tension in an extant marriage and cause legal problems if the marriage ended in divorce:

Gaius, Institutes II.62: Sometimes it happens that he who is the master (dominus) does not have the power of alienating a thing, and he who is not master can alienate it. 63: For a husband is prohibited by the Julian law (on adultery) from alienating dotal property if his wife is unwilling, though it is his, having either been mancipated to him for the sake of dowry or lawfully ceded or taken by usucaption. But indeed, whether this law pertains only to Italian lands or also to provincial lands, is a matter of doubt.

Moreover, the dowry was considered separately from the husband’s own property in assessing his financial worth:

D.50.1.21.4 (Paulus): The same man responded that while a marriage is in existence, the dowry is among the husband's goods; but if fortunes above a certain amount should be called upon for performing municipal obligations (munera¹⁹), the dowry ought not to be figured in the amount.

Because of the possibility that the marriage would break up and the husband would have to return the dowry intact, a detailed list of the dotal property might be made before the marriage took place. Sometimes a precise monetary value would be placed on the property, which the husband was committed to repay:

D.23.3.10 pr. (Ulpian): Generally it is in the man's interest that the items (brought as dowry) not be valued for this reason, so that the risk to the items not pertain to him, especially if he has received animals as part of the dowry or clothing, which the woman uses. For it will turn out, if there has been valuation and the wife wears the things out, that nevertheless the husband is responsible for their valued amount. Therefore, whenever items are given as part of the dowry without valuation, they become both better and worse for the woman.

D.23.3.42 (Gaius): Things given as dowry, which exist by weight, number, or measure, are at the husband's risk, since they are given for this purpose, that the husband sell them at his own free-will and when the marriage is dissolved, either he or his heir is to restore other things of the same kind and quality.

Apuleius, who characterized the 300,000 sesterces dowry of his wife Pudentilla as almost ridiculously small [Part I.D.2], notes that he received it, so to speak, on trust, since it would all go to Pudentilla’s children after her death:

Apuleius, Apologia 91, 158/9 C.E.

[the beginning of the passage is here omitted] Now first of all, (you will see) that the dowry of a very wealthy woman was modest, nor was it given, but really only entrusted, and besides this the marriage was made on this condition, that if she departed this life without having any children from me, all the dowry would remain with her sons Pontianus and Pudens, but if she died with only one boy or girl surviving (from her marriage with Apuleius), then the dowry would be divided so that part would go to the later child, the rest to the earlier ones.

4    Recovery of dowry after marriage

If a wife died before her husband, he kept any dowry that had been given by anyone other than her father or a male ascendant (“adventitious dowry”). Dowry contributed by the wife’s father (“profectitious dowry”) would be returned to him, unless other arrangements had been made in the dotal pact:

D. 23.3.6 pr. (Pomponius): Assistance has been given by law to a father, so that if he has lost his daughter, it grants to him for comfort that the dowry which came from him is returned to him, in order that he not feel the loss of both his deceased daughter and his money.

However, the wife's father would probably have predeceased her, given ancient mortality probabilities. In such cases, the dotal agreement might stipulate that the husband keep the dowry, if there were children of the marriage he had to support [Saller 1994, 208—9].

In certain circumstances, the dowry might be returned to the wife even while the couple were still married [Gardner 1986a, 108-9; cf. D.24.3.20 (Paulus)]:

D.23.3.73.1 (Paulus): While the marriage is still in existence, the dowry is able to be returned to the wife, who will not waste it, on account of these reasons: in order that she may support herself and her children; in order that she might buy a suitable estate; in order that she might offer sustenance to a parent in exile or in relegation on an island; or in order that she might sustain a needy husband, brother, or sister.

Confiscation of her dowry by the state was among the penalties for a woman convicted of a serious crime, such as treason, murder, or magic [D.48.20.3 (Ulpian)]. Women convicted of adultery under the Augustan law lost half of their dowry and a third of the rest of their prop­erty [see Part I.B]. But when the father of an innocent woman was condemned and his property was confiscated, the state did not take the daughter's dowry, even if it had come from her father:

D.48.20.8.4 (Macer): If a father who has given a dowry on behalf of his daughter is condemned, the imperial fisc does not have a right to that dowry, even if the daughter should afterwards die during the marriage, D.48.20.8.9 (Callistratus): unless the father will be proven to have provided for his children out of fear of condemnation.

This concern for the dowry of the offspring of a condemned man can be seen in the recently published decree of the Senate concerning the punishment of Gnaeus Calpurnius Piso (governor of Syria under Tiberius and enemy of Tiberius' adopted son Germanicus, whose death he was suspected of bringing about). The Senate's decree called for the confisca­tion of Piso's property, but returned almost all of it to his sons, stipulating that a million sesterces was to be set aside for the dowry of his granddaughter, along with another four million sesterces for her peculiumT²

E Gifts between spouses and a marriedwoma'^’s property

Unless a woman had come under her husband's legal power in a manus-marriage, which was very uncommon by the early Empire [see Chapter 1, Part II.B.], during the marriage she kept control over her own property (other than her dowry, which was in her husband's keeping; cf. Part I.D).

1   The ban on gifts between husband and wife

Because of the Roman legal disapproval of mixing of spousal property, there was even a ban on gifts between spouses [see Treggiari 1991a, 365-79]:

D.24.1.1 (Ulpian): It has been accepted among us by custom that gifts between husband and wife are not valid. Moreover, it has been accepted for this reason, that they not be reciprocally despoiled from love for each other, by not acting with restraint in their gifts, but (by acting) with immoderate good-nature towards each other.

D.24.1.2 (Paulus): (and) so that they not be remiss in their zeal for bringing up children. Sextus Caecilius added another reason as well, because it would often occur, that marriages would be torn apart, if the one who was able to give did not, and so in this way it would come about that marriages would be up for sale.

D.24.1.3 pr. (Ulpian): This reason also has been taken from the speech of our emperor Antoninus (Caracalla) Augustus, for he spoke thus: “Our ances­tors prohibited gifts between husband and wife, valuing honorable love by feelings alone, and also considering the reputation of couples, so that they not appear to be united in marital harmony for a price, nor should the better partner fall into poverty and the worse partner become richer.”

Pre-nuptial gifts were allowable, and were to become an important part of marriage arrangements in the later Empire [see Part II.C below]:

D.24.1.27 (Modestinus): A gift made before the wedding between those who are about to come together in marriage is valid by law, even if the wedding has followed on the same day.

A spouse could also make a gift to the other to take effect only after the giver's death. This was known as a gift mortis causa (‘'on account of death”):

D.24.1.9.2 (Ulpian): Gifts between husband and wife “on account of death” have been accepted,

D.24.1.10 (Gaius): because the occurrence of the gift happens at that time when they cease to be husband and wife.

D.24.1.11 pr. (Ulpian): But meanwhile the items do not immediately belong to the person to whom they were given, but not until the time when death has followed. Therefore in the meantime ownership remains with the person who gave.

Some types of gifts between spouses were allowed, even during marriage, particularly if the gift had not actually enriched the other spouse materially:

D.24.1.18 (Pomponius): If a husband has used the slaves or clothing of his wife or a wife has used the slaves or clothing of her husband, or has lived for free in the other’s house, the gift is valid.

D.24.1.21 pr. (Ulpian): If someone had paid out on his wife’s behalf the tolls which it is usual to pay on a journey, would there be a demand for repayment (by her) as if she had been made richer by this, or would this not be a gift? And I rather think that this is not forbidden, especially if she set out (on the journey) for his sake...

D.24.1.28.2 (Paulus): If the husband's slaves have offered services to his wife or vice versa, it has been decided preferably that no account should be had of these (services). And clearly the law of prohibited gift-giving must not be handled harshly or as if between enemies, but as between those joined by the greatest affection and fearing only poverty.

D.24.1.31.8 (Pomponius): If a man had given his wife an extravagant gift on the Kalends of March or on her birthday, it is a gift (and therefore not valid). 9: But if (he had covered) expenses which she made in order to main­tain herself in a more honorable way, the opposite (is the case). For a woman does not seem to have been made richer, if she has spent money given to her on victuals or on perfumes or on food for her slave-household.

However, the ban on gifts between spouses came to be considered overly strict, and was relaxed by later imperial rulings. Antoninus (Caracalla) allowed a wife to make her husband a gift of money if it enabled him to pursue a political career:

D.24.1.40 (Ulpian): That which was brought by a wife to her husband for the purpose of acquiring office is valid to the extent that it was necessary for fulfilling the office;

D.24.1.41 (Licinnius Rufus): for the emperor Antoninus also decided, that a wife could give a gift for her husband's advancement.

D.24.1.42 (Gaius): Recently from the indulgence of the emperor Antoninus another reason for a gift has been accepted, which we call “for the sake of honor;” as, for instance, if a wife makes a gift to her husband who is seeking the senatorial stripe or in order that he become a member of the equestrian order or for the sake of (giving) games.²¹

In 206 Caracalla ruled that such gifts were valid if the giver died without revoking the gift (see D.24.1.3 above for more of Caracalla’s speech):

D.24.1.32 pr. (Ulpian): Although this was the status of gifts between husband and wife, as we earlier related, our emperor Antoninus Augustus, before the death of his father the deified (Septimius) Severus, in a speech held in the Senate during the consulship of Fulvius Aemilianus and Nummius Albinus, proposed that there should be some relaxation from the rigor of the law. [D.24.1.32.1 is omitted.] 2: The speech says that “It is allowable for the person who gave a gift to regret it; but for the heir to seize (what had been intended as a gift), perhaps against the final wish of the person who gave it, is a hard and greedy act.” [D.24.1.32.3—28 are omitted here.]

Despite these relaxations of the rule, and the fact that the ban on gifts ran counter to the practice of many couples, the general rule that gifts between spouses were invalid persisted until Justinian’s day [Arjava 1996, 136—7].

2    Women’s property within marriage

In addition to a dowry, a woman no longer under paternal power might come into the marriage with property of her own, most likely what she had inherited from her father. Unless she had entered into her husband's manus, she kept this property during the marriage, as well as any property she later acquired. In fact, married women had more property rights in ancient Rome than they had in Britain or the United States until the twentieth century.

It was advisable for a woman who brought non-dotal property into a marriage to be sure that it was kept separate from the dowry and from her husband's own property. This could be done by drawing up a document at the time of marriage listing such property. The following passage from the early third-century jurist Ulpian comes right after a passage discussing whether Roman law should consider Greek parapherna as the husband's property [see Arjava 1996, 137—9]. Parapherna (literally “things in addition to the dowry”) comprised personal items like clothing and household utensils [see the marriage contracts from Egypt in Part III]. Ulpian concluded that Greek parapherna can be considered the husband's property, but not the non-property items brought by a Roman to marriage, about which he says:

D.23.3.9.3 (Ulpian): Clearly if an account-book of the things (brought to the marriage by the wife) is given to the husband, as we see commonly happens at Rome — for a woman is accustomed to compile into an account­book the things which she is accustomed to have for her use in her husband’s home but does not give toward the dowry, and to offer that account-book to her husband for him to sign, as if he has received the things, and his wife keeps the things which are contained in the account-book, just as his signed word (attests) that she had brought them into his home. Let us see therefore whether these things become the husband’s. And I don’t think so, not because they are not handed over to him (for what difference does it make, whether they are brought into his home with his consent or are handed over to him?), but because I don’t think this was intended between husband and wife, that ownership be transferred to him, but rather (it was intended) that it be certain that they were brought into his house, so that this not be denied, if and when a separation should take place. And generally the husband binds himself to custody of these things, unless they have been entrusted to the woman. [the rest of the passage is omitted here]

Because women generally did not have as many opportunities for personal enrichment as men had, it was assumed that anything a wife owned whose provenance was unaccounted for had been given to her by her husband. The rationale for this is based on Roman ideas of repu­tation and honor: it would be most inappropriate for a wife to receive money or gifts (apart from inherited wealth) from a man other than her husband. Without the assumption that such property had come from her husband, people might think she had received it as a gift from a lover or in return for sexual favors [Gardner 1986a, 73—4]:

D.24.1.51 (Pomponius): Quintus Mucius (Scaevola)²² says, when there is a controversy regarding the source of something that has come into a woman’s possession, it is both more likely and more honorable for something whose origin cannot be shown to be considered to have come to her from her husband or from someone who is in his power. Moreover, Quintus Mucius seems to have approved of this for the sake of avoiding (an inquiry into the question of) shameful gain concerning the woman.

This assumption, even if it were made to protect a woman's reputation, could result in her losing some of her property after her husband's death or upon divorce. Perhaps this is why women who brought non-dotal property into a marriage were careful to have a record of it drawn up!

Despite the detailed rules about separation of spousal property and the invalidity of gifts, in reality there was a good deal of sharing of resources. A husband might administer his wife's property along with his own, perhaps even serving as her tutor, though this was not the usual Roman practice [Chapter 1, Part III.A]; the wife, in managing household affairs, might well supervise her husband's slaves; and among the lower classes, married couples operated busi­nesses jointly [Treggiari 1991a, 374-8; Gardner 1998, 233-4]. The law did place limits on this sharing of resources; see, for example, the s.c. Velleianum, which forbade a wife to serve as guarantor for her husband's debt [Chapter 1, Part IV.D].

“Turia” handed over her property to her husband to administer:

Laudatio Turiae I.37—9, late 1st c. B.C.E.

We preserved all your patrimony received from your parents with shared diligence; for you had no concern for acquiring that which you handed over completely to me. We divided our duties so that I bore the guardianship (tutela) of your fortune, (and) you sustained the care of mine.²³

“Turia” and her husband were childless [see Chapter 4, Part I.A], and their mutual trust was evidently well-founded. But if one spouse died and the other remarried, children of the first marriage might be concerned that their surviving parent would give the new spouse property which otherwise would go to her children. That was certainly the fear that the sons of Apuleius' wife Pudentilla had when she announced her desire to marry again. (For more on the family conflicts caused by a mother's remarrying, see Chapter 5, Part I.B.)

Apuleius, Apologia 71, 158/9 C.E.

[The beginning of the passage is omitted.] For Pontianus, after he had received his mother’s letter, immediately hurried from Rome, fearing that if she had taken some greedy husband, she would take with her to her husband’s home all her property, as often happens. This anxiety vexed his mind considerably, (since) all hopes of wealth for him and his brother had been placed in their mother’s resources. [the rest of the passage is omitted]

II