A Gender and inclusiveness

Latin is a gendered language. All nouns have a grammatical “gender,” either masculine, femi­nine, or neuter, according to their endings.

There were, of course, some nouns denoting human beings whose grammatical gender also described their sexual gender: e.g., vir (= man) was masculine; femina (woman) was feminine. Sometimes, the same root would have different endings depending on whether it denoted a male or female person: filius was a son; filia a daughter. A general rule was that if a mixed group of males and females was being referred to, the masculine noun or adjective would be used to cover both males and females: “... because the masculine sex always contains the feminine sex” [D.32.62 (Julian)]. Roman legal writers noted this inclusive use of masculine nouns or pronouns in law, to make it clear that women as well as men were covered by its provisions. However, as Jane Gardner and Richard Saller have recently pointed out, the generalizing use of the masculine tends to obscure the presence of women as property owners and actors in Roman society [Gardner 1995; Saller 1999; cf. Treggiari 1979, 185-6]:

D.50.16.1 (Ulpian): This expression “if anyone” embraces males as well as females.

D.50.16.152 (Gaius): There is no doubt that in the name “man” (homo), the feminine as well as the masculine is included.

D.50.16.195 pr.

D.             50.16.163.1 (Paulus): In the name “boy” (puer) a girl is also meant: for they even call women who have recently given birth “boy-bearers” (puer­peras), and in Greekpaidion is used for both in common.

Sometimes there could be doubt about whether female persons were included in a masculine term, and this could have important consequences. For instance, in the law of inheritance:

D.50.16.84 (Paulus): In the name “son” (filius) we understand all children. D.50.16.116 (Javolenus): “Whatever other son or (son) of my son shall be my heir”: Labeo (said) it does not seem to include a daughter, Proculus (said) the opposite. Labeo seems to me to follow the literal meaning of the words, Proculus the mind of the testator. He replied: I do not doubt that the opinion of Labeo is not true.

Proculus and (following him) Javolenus upheld the more generous interpretation of the father's will, that by “son” (filius) he meant all his children, female as well as male. Labeo on the other hand did not want to take the Latin filius inclusively. Another case where jurists expressed uncertainty about the inclusiveness of a father's use of the masculine term occurs at D. 50.16.122 (Pomponius), where a father had appointed guardians for his filius in his will. Clearly, a prudent parent would want to be explicit.

However, when feminine forms of nouns and adjectives were used, they referred exclu­sively to females, not to males [Gardner 1995, 379]:

D.31.45 pr.

Similar problems of interpretation could arise when speaking of slaves or former slaves. Were all slaves, male and female, meant when a testator referred to his servi (the masculine plural form of the word “slave”)?

D.50.16.40.1 (Ulpian): The name “slave” also refers to a slavegirl. D.50.16.101.3 (Modestinus): Certain people think that when slaves (servi) are left as a legacy, slavegirls (ancillae) ought (to be included) as if the common name includes both sexes.

D.50.16.172 (Ulpian): It has been agreed that in the name “freedman” (libertus), a freedwoman (liberta) is also included.

D.50.16.52 (Ulpian): In the name “patron” (patronus), a patroness (patrona) is also included.²

B Women in the family

The Romans did not have a Latin word corresponding exactly to the English “family.” Familia, the word translated below as “family,” really has a meaning closer to “household.” In one sense, the Roman familia comprised all those under the legal power (potestas} of the male head, the paterfamilias. This included slaves belonging to the paterfamilias as well as his chil­dren.

In the following passage,³ the early third-century jurist Ulpian sets out the various mean­ings familia could have:

D.50.16.195.1 (Ulpian): Let us see how the name “family” (familia) is to be taken. And indeed it has been taken in various ways: for it is used in regard to both things and persons. In regard to things, as for instance, in the law of the Twelve Tables, with these words: “Let the nearest agnate have the familia’’⁴ However, the meaning of familia refers to persons thus, when the law is speaking about patron and freedman: “From that family,” it says, “into that family,” and here it is agreed that the law is speaking about indi­vidual persons. 2: ... Strictly speaking, we call a familia several persons, who are subjected under the power of one person, either by nature or by law, as for instance, the father of the family (paterfamilias), the mother of the family (materfamilias), the son of the family (filiusfamilias), the daughter of the family (filiafamilias) and those who follow them in succession, as for instance, grandsons and granddaughters and so on. However, he who has dominion in the home is called paterfamilias, and he is called by this name correctly, even though he does not have a son; for we are describing not only the person, but also the legal status. In fact, we call even a fatherless male ward (pupillus) a paterfamilias. And when the paterfamilias dies, all persons (capita, literally, “heads”) that were subject to him begin to have their indi­vidual families: for individuals succeed to the name of fathers of the family.

If a woman's paterfamilias died or emancipated her, she became legally independent (though she still needed a tutor mulierum; see Part III below), but she could never become a paterfamilias herself because she could never have legal power (potestas) over anyone other than herself. Even her own children were not under her potestas, but that of her husband (their paterfamilias), and therefore they were part of his familia, not hers:

D.50.16.196 (Gaius): The leader (princeps) of the family himself is included in the name “family” (familia). 1: It is obvious that women’s children are not in their (the women’s) familia, since those who are born follow the familia of their father.

D.50.16.51 (Gaius): In the name “parent” (parens) not only father, but even grandfather and great-grandfather and finally all elders are included; but also mother and grandmother and great-grandmother.

D.50.16.220 pr (Callistratus): In the name of “children” (liberi), grandchil­dren and great-grandchildren and others who are descended from them are included: for the law of the Twelve Tables includes all of these under the name of “one's own” (sui).

D.50.16.136 (Ulpian): In the name “son-in-law” it is clear that the husbands of both a granddaughter and a great-granddaughter born from one's son as well as from one's daughter are included, and the husbands of other female (descendants).

Likewise, “daughter-in-law” extended to a grandson’s or great-grandson’s wife [D.50.16.50 (Ulpian)], and “father-in-law” and “mother-in-law” included the grandparents of one’s spouse [D.50.16.146 (Terentius Clemens)].

A woman might also be described according to marital and sexual status:

D.50.16.13 pr.

D.50.16.242.3 (Javolenus): Labeo says that not only that woman who had at one time been married is called “widow” (vidua), but also that woman who had not (ever) had a man: since she has been called vidua in the same way as a senseless (vecors) person would be one without feeling (cors) or an insane (vesanius) person would be one without sanity (sanitas). Similarly a widow is said to be without “twoness”(duitas).

The term materfamilias (‘’mother of the family”) had an interesting array of meanings. In early Roman usage, materfamilias described a wife whose marriage brought her in manu, that is, under her husband’s legal power [Part II.B]. However, by Ulpian’s day (early third century), manus-marriage was obsolete, and materfamilias referred to a respectable matron, whether married or not [Treggiari 1991a, 34—5, 279—80; Gardner 1995, 384—8]. The defining factor was a woman’s behavior, specifically her observance of social propriety and concern for her sexual honor [McGinn 1998, 147—56; Saller 1999].

D.50.16.46.1 (Ulpian): We ought to understand that a “mother of the family” (materfamilias) is she who has not lived dishonorably: for behavior (mores) distinguish and separate “mothers of the family” from other women. Therefore there will be no difference, whether she is married or a widow or divorcee, freeborn or freedwoman: for neither marriage nor birth make a “mother of the family,” but rather good behavior (boni mores).

D.48.5.11 pr (Papinian): Moreover, materfamilias means not only a married woman, but also an unmarried one (vidua; cf. D.50.16.242.3).

D.43.30.3.6 (Ulpian):... When you hear “materfamilias," understand a woman of well-known reputation (auctoritas).

This idea of materfamilias was implicit in the adultery law of the emperor Augustus [Chapter 2, Part I.B], which made women of respectable standing, whether married or not, liable to the penalties laid down for illicit sexual behavior (stuprum). Augustus could be said to have created “a status to which it should have been the ambition of every free woman to aspire” [McGinn 1998, 156] — that of materfamilias.

II    Forms of legal power: potestas, manus and tutela impuberum

In ancient Rome, virtually all free Roman women were under one of the following three types of legal authority: patria potestas (“paternal power”), manus (subordination to a husband's legal power), or tutela (“guardianship”), for those not under potestas or manus. (Slavewomen, like slavemen, would be under the control of their master or mistress.) By the reign of Augustus, manus had practically disappeared, and Augustus himself weakened tutela mulierum by granting freedom from tutela to freeborn women with three children and freedwomen with four [see Chapter 2, Part I.B]. Patria potestas, however, survived until the end of antiquity, though weakened by late imperial legislation [see Arjava 1998].