NOTES

INTRODUCTION: HISTORICAL AND LEGAL BACKGROUND

1   See Honoré 1994 and Watson 1974a on the essentially classical nature of the law of late third-century imperial rescripts.

2   The Digest was edited by Th. Mommsen with P. Krueger in Corpus Iuris Civilis I. Institutiones et Digesta (Berlin: Weidmann, 1868). A four-volume translation, The Digest of Justinian, with English facing the Latin text of Mommsen, was edited by Alan Watson, with contributions from many Roman legal scholars (Philadelphia: University of Pennsylvania Press, 1985). There is now a revised English translation (without the facing Latin text) in two volumes (Philadelphia: University of Pennsylvania Press, 1998). For the sources of Roman law, especially of the classical period, see Crook 1967; Johnston 1999; Kunkel 1973; Nicholas 1962, 14-45, and Robinson 1997.

New Roman">3   For reasons of space, I omit the titles of the works of the jurists being cited, and include only the name of the jurist. Watson’s translation (see n.2) includes the titles of the original work from which the Digest excerpt was taken.

4    There have been several English translations of Gaius’ Institutes; the most acces­sible is probably the one by Professors W.M.

5    No complete English translation has been made of any of these works, whose Latin texts are found in the second volume of Fontes Iuris Romani Antejustiniani (FIRA), edited by Professor Johannes Baviera and published in Florence in 1968 (2nd edn.). See Robinson 1997, 62-6 on pre-Justinianic compilations. It should be noted that though citations from the Sententiae Pauli and Rules of Ulpian appear in this book as “classical,” in some respects they appear to reflect Constantinian law.

6    Found in Corpus Iuris Civilis ii. Codex Iustinianus, edited by P. Krueger (Zurich: Weidmann, 14th edn., 1967). There is no reliable English translation of the entire Code.

On pre-Constantinian rescripts, see Corcoran 1996; Honoré 1994; Williams 1974. Much material on rescripts is found also in Millar 1977.

On leges generales, see Harries 1999, esp. 20—1. On the government of the Roman Empire at this period, see Jones 1964.

See Honoré 1998 on the legislative split between the east and west.

Edited by Th. Mommsen and P. Meyer as Theodosiani Libri XVI cam Constitationibas Sirmondianis et Leges Novellae ad Theodosianam Pertinentes (Berlin: Weidmann, 1904). A reliable translation of the Theodosian Code and the post- Theodosian novellae, including an excellent glossary and index, is Clyde Pharr, The Theodosian Code (Princeton: Princeton University Press, 1952).

On the language and purpose of the Theodosian Code, see Harries 1999; Honoré 1998; and the essays in The Theodosian Code, edited by J. Harries and I.

See Jones 1964 for a survey of these developments.

For examples of pre-Christian moral fervor, see Diocletian’s edict on close-kin marriages (Chapter 3, Part I.A.5); and Cod. Just. 5.4.3 (ibid., I.B.3) and 5.4.4 (ibid., I.B.5). All involve unions considered socially and morally abhorrent by emperors.

On the historical importance of the Code, see Honoré 1998; for Constantine’s legislation on marriage, much of which was repealed or modified by later emperors, see Evans Grubbs 1995.

G. Alfoldy, The Social History of Rome, trans. D. Braund and F. Pollock (Baltimore: Johns Hopkins University Press, rev. edn., 1988), esp. 146. See also Garnsey and Saller 1987, esp. 107-25, and Jones 1964 for the later period.

The fundamental work on Roman citizenship is. A.N. Sherwin-White, The Roman Citizenship (Oxford: Clarendon Press, 2nd edn., 1973). Note, however, that citizenship continued to be important in private law, especially in regard to marriage and manumission: see Gardner 1993, 186-91.

The most complete exposition of this in English is still Garnsey 1970.

See Chapter 1, Part VI.A; Talbert 1984; Hopkins 1983.

Talbert 1984, 39-98; cf. Duncan-Jones 1982, 17-32 on the finances of one senator, Pliny the Younger.

See Chapter 2, Part I.B and Chapter 3, Part I.B on the Augustan legislation. Public performance: see B. Levick, “The Senatas Consaltam from Larinum,” JRS 73 (1983), 97-115.

See Jones 1964, 523-62; Matthews 1975. Evans Grubbs 1995, 21-3 gives brief exposition of Constantine’s reforms, with further references there.

Cf.

Comum, the hometown of Pliny the Younger, required decurions to have a net worth of 100,000 sesterces (Pliny, Epistles I.19).

On beneficence by municipal aristocracies, see Chapter 1, Part VI.C.

See P. Garnsey, “Aspects of the Decline of the Urban Aristocracy in the Empire,” in Cities, Peasants and Food in Classical Antiqaity, ed. W. Scheidel (Cambridge: Cambridge University Press, 1998), 3-27 (orig. pub. 1974).

Chapter 1, Part VI. See Boatwright 1991; van Bremen 1983 and 1996; Forbis 1990; Kajava 1990; MacMullen 1980 and 1986; Marshall, “Roman Women in the Provinces,” Ancient Society 6 (1975), 109—27; Nicols 1989; Raepset-Charlier 1981 and 1993; Rogers 1992.

See Garnsey and Sailer 1987 and Duncan-Jones 1982 on land-holding and the Roman economy.

For exceptions, see Chapter 3, Parts I.B.2 and II.B.4 on the senatasconsaltam Claadianam, Part I.C.1 on the Minician law.

See Bradley 1994, 31-56; W. Scheidel, “Quantifying the Sources of Slaves in the Early Roman Empire,” JRS 87 (1997), 156-69; W.V. Harris, “Demography, Geography, and the Sources of Roman Slaves,” JRS 89 (1999), 62-75.

See Harris 1994.

See R. MacMullen, ”Late Roman Slavery,” Historia 36 (1987), 359-82; C.R. Whittaker, “Circe's Pigs: From Slavery to Serfdom in the Later Roman World,” in Classical Slavery, ed. M.I. Finley (London, 1987), 88-122.

Bradley 1984, 47-80; Flory 1978; Rawson 1966; cf. Chapter 3, Part I.B.1. For female slaves, see Treggiari 1979.

On manumission, see Bradley 1984, 81-112; 1994, 154-65.

Gaius, Institates I.42-6; Gardner 1993, 40-1.

Gaius, Institates I.13-32a, 37-41, 47, 65, 68-9; Gardner 1993, 39-44.

See Chapter 3, Parts I.B and II.B; Evans Grubbs 1993.

On Junian Latins, see Weaver 1990 and 1997.

On penalties, see Garnsey 1970, 103-52; Millar 1984.

On torture of slaves in legal proceedings, see Bradley 1994, 165-73.

See Chapter 1 and Summation.

1 THE STATUS OF WOMENINROMANLAW

The sixteenth title (section) of Book 50 of the Digest is entitled De Verboram Significatione (‘'on the Meaning of Words”). In it, the Justinianic compilers culled definitions of terms from various passages in classical writers, taking them out of their larger context (see Introduction, n.3). Many of the definitions translated here from D.50.16 are from Ulpian's commentary on the Praetor's Edict (on which see n.75 below), where they would have explained the usage of the words in question as they related to the praetor's rulings.

A patron was the former owner of a manumitted slave. Patrons still retained certain rights over their former property; see Gardner 1993, 20-51.

For the beginning of this passage, see D.50.16.195 pr. above. I translate only parts of this extensive passage; here and elsewhere in translations of legal sources... indicates where I have deleted sentences or clauses.

The Twelve Tables is the earliest written compilation of Roman law, dating to 451/450 B.C.E.; see Crawford 1996, vol.

Here materfamilias is used as the female equivalent of paterfamilias (though with the unmentioned difference, obvious to Romans, that a materfamilias never had potestas over others). See Saller 1999, 194, and cf. Part I.B above for other mean­ings of materfamilias.

6    Despite the famous statement of Cato the Elder (quoted by Aulus Gellius, Noctes Atticae 10.23.2—5) that a husband who caught his wife in adultery could kill her with impunity, there is no evidence that such a right was approved in Roman law. However, husbands who killed wives in flagrante received lenient treat­ment. See Treggiari 1991a, 268-75.

7    There is evidence for manas-marriage in the long inscription known as the Laadatio Tariae (see n.128 below), dating from the reign of Augustus. “Turia’s” father is said to have married his (second?) wife by coemptio, by which she would come under his manas, and “Turia’s” sister also married with manas. “Turia” herself may have come under her husband’s manas: he says that she handed over her property to him to administer, and if she had come under his legal control, her property would have also (see Chapter 2, n.13). The Flavian Municipal Law (c.80 C.E.) also refers to manas; see Part III.A.1.

8    For another archaic use of coemptio (‘’mock sale”) still evidently employed in the second century, see Gaius’ account of how a woman could change her tator malieram (Part III.A; Institates I.115). For mancipatio, see Glossary.

9    The senatasconsaltam Gaetalicianam, known only from a papyrus fragment (P.Berol.11753), closed a loophole in the Augustan marriage laws used by child­less couples, whereby the wife entered the husband’s manas and so inherited from him as a daughter when he died (rather than receiving only one-tenth, as under the Augustan law; see Chapter 2, Part I.B). The date of this decree of the Senate is not known; scholars often put it in the early third century, but David Noy argues for the first century, when other loopholes to the Augustan laws were being closed; see his “The Senatasconsaltam Gaetalicianam: Manas and Inheritance,” Tijdschrift voor Rechtsgeshiedenis 56 (1988), 299-304.

10   The extent of emancipation in the third century is debated: Watson 1974a notes the number of rescripts on the subject, but cf. Gardner 1993, 71-2. On emanci­pation, see Gardner 1998, 6-113 and for late antiquity, Arjava 1998.

11   Whether the tutor forbidden to marry his ward was a tator impaberam or tator malieram, or both, is debatable. Most scholars assume it was a tator malieram, or conflate the two. Given the second-century date of the ban on tator—papilla marriage [Chapter 3, Part I.C], when tatela malieram was in decline, the ban was probably aimed at tatores impaberam, not malieram.

12   See further Part III.C. A wax tablet from the Italian town of Herculaneum also apparently refers to the granting of tutors by the Julian and Titian law; see Part

III.   B. The Atilian law, which applied to women in Rome, was enacted at the end of the third century B.C.E.; see Modrzejewksi 1974, 273.

13   Statutory (legitima) courts are defined by Gaius (Institates IV.104) as courts “in the city of Rome or within the first milestone of the city of Rome, between (those who are) all Roman citizens under one judge.” See Marshall 1989, 37.

14   In the rescript, Domitian says that whereas indulgence for marriages not according to Roman law has been given before, this will no longer be the case. See J.-L. Mourgues, “The So-called Letter of Domitian at the end of the Lex Irnitana,”JRS 77 (1987), 78-87.

15   By the lex Aelia Sentia of 4 C.E., manumissions of slaves by owners younger than twenty years of age were not fully valid unless approved by an advisory board (consiliam) of five senators and five equestrians (see Introduction, Part II). Under the lex Irnitana, the consilium is made up of a quorum of town councilors rather than senators or equestrians, who were no doubt in very short supply in Irni.

. quo ne a iusto tutore abeat” meaning that appointments of tutors by the duovir would only be valid if there were no existing tutor legitimus (that is, the closest male agnate relative; see Introduction to this section). Claudius abolished the tutor legitimus for women (before the date of this law), but pupilli continued to be subject to a tutor legitimus unless another tutor had been appointed by their paterfamilias in his will. Presumably this provision of the lex Irnitana refers only to pupilli and to freedwomen and emancipated daughters, who did still have a tutor legitimus. Cf. n.37 and n.40 below.

Calatoria Themis was giving bail for her appearance in the case involving the woman “who calls herself Petronia Justa,” who Calatoria Themis was claiming was her freedwoman (whereas Justa claimed she had been born after her mother had been freed by Calatoria and her husband). See Weaver 1991; 1997, 68-72; Crook 1967, 48-50.

The text for this and the following two inscriptions is from Corpus Inscriptionum Latinarum (hereafter CIL), ed. Th. Mommsen, vol. 6.

Filiation in Latin inscriptions is the identification of the person named as the son or daughter of someone, as here Furfania Saturnina is the “daughter of Lucius” (Lucii f. — Lucii filia). Slaves did not legally have a father; therefore former slaves could not have filiation. They could have Roman citizenship and use the three names (tria nomina) of Roman male citizens, as M(arcus) Valerius Hesychus, the freedman of Furfania's husband, M(arcus) Valerius Ismarus, does. Hesychus took his patron's praenomen (Marcus) and nomen (Valerius).

A(ulus) Manneius Celsus must be Furfania Saturnina's son by another husband, not M. Valerius Ismarus, since he has a different nomen, Manneius. The same seems to be the case for the son of Ostoria Acte in CIL VI.7468 below.

A verna, or “home-born slave,” was particularly cherished since he or she was assumed to be more loyal than slaves acquired from outside the household.

This inscription is also found in H. Dessau, ed., Inscriptiones Latinae Selectae (hereafter ILS) 7313, and in FIRA III, no. 93.

The text used is Hunink 1997. The speech was presumably re-worked later for wider publication; see Harrison 2000, 42.

Res mancipi usually included urban or rural land in Italy but not elsewhere (Gardner 1986a, 18). Some coloniae in the provinces had the ius Italicum (‘'Italic right”) and so could be considered Italian land; in Africa Proconsularis, these included (by the third century) Carthage, Utica, and Leptis Magna [D.50.15.8.11 (Paulus)]; see Arjava 1996, 113 n.4. Pudentilla's purchase was probably in Africa rather than Italy, so would have been in one of those cities. Claudius Maximus, the governor of Africa Proconsularis, before whom Apuleius was being tried. See Bradley 1997, 215—17.

This would then be an example of Roman law being followed (presumably after 212), rather than a native custom. It may be that before the adoption of Roman law, women in this area did not have guardians. For the Euphrates documents, see Feissel and Gascou 1989 and at Part V.C below. P.Euphr.15 was published by Feissel and Gascou in Journal des Savants 2000, 157—208 at 189—92.

Originally published in The Oxyrhynchus Papyri I, ed. B.P. Grenfell and A.S. Hunt (1898). For later readings and corrections to the text, see BL I, 312, BL III,129, and BL VIII, 231. I am using the text in Pestman 1994, 216-18.

There is some uncertainty over the year. The original editors read it as Year 20 of Septimius Severus and his sons (expressed by the Greek letter kappa), which would be 211. But a more recent reading suggested the possibility of Year 12 (the Greek letters iota beta) instead, which would be 203. See P.Oxy. XLVII.3346, at n.1; BL VIII, 231; and Pestman 1994, 282.

Another request for a kyrios (P.Ryl. II.120, dated 167), states that the petitioner has paid nine and a half obols, presumably the “established tax.”

The double brackets [[ ]] indicate that the name of Geta, Septimius Severus' younger son, was deleted later, as it was from all official documents after Geta's murder by his brother Caracalla in 212. See Pestman 1994, 37, for illustration. Phaophi is the Egyptian month corresponding to 28 September-27 October. Thus the format is similar to that found on the fragmentary wax tablets from Herculaneum (on which see Part III.B and n.12 above). See Arangio-Ruiz 1956; Modrzejewski 1974, 287-91.

On literacy in the Roman world, see W.V. Harris, Ancient Literacy, (Cambridge, MA: Harvard University Press, 1989); literates were only a small percentage of the entire population, and women were far less likely to be literate than men. On illiteracy in Roman Egypt, see Hanson 1991; on women and literacy in Egypt, see Sheridan 1998.

Originally published in The Oxyrhynchus Papyri XII, ed. Grenfell and Hunt (1916); re-edited by Modrzejewski 1974, 269-70 (cf. BL VII and BL X). I am using the text in Chartae Latinae Antiquiores, XLVI, ed. A. Bruckner and R. Marichal (Zurich: URS Graf Verlag, 1995), no. 1361 (pp. 4-5), which repro­duces the text of Modrzejewski and also includes a photograph. Brackets indicate words missing from the text but restored by the editors on the basis of other examples.

The reference to the Senate's decree here, missing from the extant text (which is lacunose on the right side), was suggested by Modrzejewski 1974. Just what this decree of the Senate was has been a matter of debate; it appears that at some point the Senate had enacted a law regulating the appointment of women's guardians in the provinces. See Modrzejewski 1974.

The petition was pasted as the 94th sheet in the first roll of petitions kept in the prefect's office. The Egyptian month Pachon runs from 26 April-25 May.

This appears to mean that the prefect's approval is contingent on Aurelia Arsinoe not already having a tutor legitimus, who could not be replaced; this would be the case only if she were a freedwoman or a daughter freed from paternal power (Part III.A), but it was apparently a standard phrase on all such responses. See n.16 above.

Description and a diagram are found in the tablet's original publication by B.P. Grenfell, “A Latin-Greek Diptych of A.D. 198,” Bodleian Quarterly Record 11 (1919), 258-62, republished as SB III.6223. I am using the text of Arangio- Ruiz found in FIRA III.25, 68-9). This and another Latin wax tablet dated between 126-132 recording the grant of a guardian are also in CPL, ed. R. Cavenaile (Wiesbaden, 1958), as nos. 202 and 200 respectively; cf. Modrzejewski 1974, 264-72, who also gives the texts of two fragmentary wax tablets from Herculaneum recording assignment of a tutor.

C. Terentius Sarapammon's role here has been debated. Arangio-Ruiz suggested that he was Mevia's current tutor, who was requesting that another take his place. But see A. Bruckner and R. Marichal in Chartae Latinae Antiquiores IV (Olten and Lausanne: URS Graf Verlag, 1967), 47-8 on Ch.Lat.Ant. 247, dated 223, in which the same man appears: he is evidently a nomikos, a lawyer, who brings legal requests (postulare) on behalf of others.

For this phrase, see n.16 above on lex Irnitana, chapter 29 (Part III.A), and cf. n.37 on a similar phrase (in Greek) at the end of P.Oxy. XII.1466.

The meaning of these initials, found in other Latin documentary papyri, is uncertain; perhaps “about this matter from the same copy two tablets have been sealed” (de ea re eodem exemplo binae tabulae signatae sunt; Arangio-Ruiz's conjec­ture; see his n.2 to FIRA III.25) or “transcribed and authenticated from two copies of the tablet written above” (descriptum et recognitum ex exemplis binis tabulae supra scriptae; Mitteis' conjecture; see Modrzejewski 1974, 268).

Thot is the Egyptian month corresponding to 27 August-27 September.

According to Sent. Pauli IV.ix.9, a woman has the ius liberorum if she has had three children at any time, but this is in regard to her inheritance rights from deceased children under the s.c. Tertullianum. The rules varied depending on what privilege was sought; see Parkin 1992, 116-19. Arjava 1996, 77-80 and 114-15 believes that all children ever born counted and thus that few adult women apart from freedwomen were subject to tutela.

Under the lex Aelia Sentia of 4 C.E., manumission of a slave under thirty was not completely valid; those freed would be Junian Latins, as would those freed by owners under twenty (see n.15 above; and Introduction, Part II). There were exceptions: e.g., manumission of a slavewoman under thirty for the purpose of marriage to her manumittor was valid (cf. Chapter 3, Part I.B.3).

P.Euphr. 15 (see n.26 above). It was evidently a “double document” (cf. on SB

III.            6223 in Part III.C), leaving a blank space for the inside text, which indicates that the act itself was never completed.

Originally published in The Oxyrhynchus Papyri XII (1916), ed. Grenfell and Hunt. I use the text in Pestman 1994, 243-5, which includes some revisions to the original (see BL VIII, 246). See also G.H.R. Horsley, New Documents Illustrating Early Christianity, vol. 2 (Sydney: Macquarie University, 1982), 29-31. The beginning of the petition is lost; words in brackets have been restored.

According to Pestman 1994, 245, this means the prefect will not bother to check the veracity of Thaisous' claim, but will keep her petition on file; only if someone challenges her right to the ius liberorum will he look into the matter.

The month Epeiph runs from 25 June-24 July. The precise day is not clear; the original editors read the 21st, but cf. BL VIII, 246: the letters are not clear.

This text is also found at FIRA III.95 (pp. 302-3) with Arangio-Ruiz's notes.

Mancipatio fell out of use before the sixth century, and so is omitted from the Justinianic corpus. The amount of one sestertius seems to be purely symbolic (cf. CIL VI.10231, where the same amount is given); it was well below the actual cost of funerary monuments: Duncan-Jones 1982, 127-31.

The Latin word is fictor, defined by the Oxford Latin Dictionary (p. 696) as “An attendant of a priest, who kneaded the liha” (sacrificial cakes).

The inscription uses the abbreviation c.v. (clarissimi viri) to indicate that the priests are of senatorial status.

The syntax is confused; “yielded to vacant possession” is a conflation of two legal expressions (see Mommsen's note ad loc. in CIL VI and Arangio-Ruiz in FIRA III, p. 302). As the property being donated has a tomb on it, the recipient is permitted not only ordinary access (the “rustic praedial servitudes,” see Part

III.   B on CIL VI.7468), but also to use the land for burial and rites of the dead.

For “feeding” of the dead (pouring liquids through a hole in the grave), see Toynbee 1971, 51-2; Hopkins 1983, 233-4. The word used, vescor, could also refer to the commemorative feasting of family members at the grave.

Locus datus decreto decurionum, “place given by a decree of the decurions” (Keppie 1991, 138). This indicates that the town council had paid for the placing of the inscription (perhaps on a monument, as was often the case).

Persicus was presumably born before his father's manumission and therefore took his mother's nomen, as he was freeborn but illegitimate: cf. Cod. Just. 5.18.3 in Chapter 3, Part I.B on a similar situation.

Persicus must have been manumitted by someone below the age of twenty, and under the lex Aelia Sentia such a manumission had to be approved by a consilium; see n.15 above. The consilium that approved Persicus' manumission was presided over by Domitian in 73, eight years before he became emperor. It is not clear who his manumittor was, perhaps the same Cornelius who manumitted his wife. Though he was free when he set up the inscription, Persicus gives only his slave name, not his citizen nomen.

The Latin is custodiolam Peladiana (sic). The Oxford Latin Dictionary says custodiola (‘'little guard-house”) can in everyday speech mean “tomb,” but this inscription is the only source cited, which begs the question. “Peladiana” seems to refer to a location in Rome (a misspelling of “Palatiana”?) where the tomb was located. Many epitaphs prescribe a penalty for those who disturb the tomb: see Toynbee 1971, 75-7. It is not clear what preteriti mei means here; preteriti can refer to those passed over in a will (i.e., those who would normally be heirs), but that would not fit syntactically with the sentence, unless it is intended to be genitive plural (preteritorum meorum), “if anyone of those I passed over in my will has broken the law...”

New Roman">Claudia Antonia Tatiane and the man she calls her brother, Aemilius Aristeides, both have good Roman nomina, but not the same nomen. If they are brother and sister, it must be by different fathers (cf. n.20 above). Van Bremen 1996, 227, suggests that here “brother” “may be simply a form of respect.”

Greek text in Supplementum Epigraphicum Graecum IV (1929-30). See also van Bremen 1996, 227. Words within square brackets are lost from the inscription and have been restored;. indicates missing words.

Text used is Inscriptiones Latinae Christianae Veteres (ILCV), ed. E. Diehl (Berlin, 1925-31).

A person's forum was his or her legal residence (domicilium; see Part VI.A below). The emperors here state the general rule that lawsuits were tried in the foram of the defendant, not of the plaintiff; see Crook 1967, 75.

A procurator was usually an aid in business or administrative affairs rather than a legal representative (Marshall 1989, 37), but here the procurator seems to be an advocate in court, on which see Crook 1995. Cf. D.50.17.2 in Part VI.B.

On praedial urban servitudes, see Introduction to CIL VI.10231 in Part III.B. But note that in a woman's will dated 264 from Hermopolis (P.Princ. II.38), the testator has both a kyrios (her husband) and a curator; see Arjava 1996, 120 n.23 and 144 n.83; and Rowlandson 1998, 197-8 for a translation.

As suggested by older scholarship; cf. L. Mitteis, Reichsrecht and Nolksrecht in den östlichenProvinzendesrömischenKaiserreichs(1891), 217-21 and549; R. Taubenschlag, Normundschaftsrechtliche Stadien: Beiträge zur geschichte des römischen und griechischen Vormundschaftsrechts (Berlin, 1913), 69-86.

Late laws on ius liberorum: Cod. Theod. 8.16.1 (320) and 8.17.1-4 (396-412) (in Chapter 2, Part II.A); Cod. Theod. 5.1.1, 2, 7 and 8 (319-426) (see Chapter 5, Introduction and Part I.B); Cod. Theod. 13.5.7 (334); Novel 21.1 of Valentinian III (446); Cod. Just. 8.58.2 (528). See Beaucamp 1992, 260-2; Arjava 1996, 79-80.

Rusticitas, that is, a lack of sophistication.

In other words, a woman can use ignorance of the law as an excuse unless she has committed a delict (an act of wrong-doing that fell under private law). Crook 1986b, 91, n.9 says this passage is post-classical (i.e., not Paulus) but Paulus expresses similar qualifications on the question of giving women additional aid or leniency in legal matters in the other passages cited here; cf. D.22.6.8 (Papinian). See further Beaucamp 1990, 81-7 for cases where women could (and could) not rely on the benefit of ignorance of the law.

Bonorum possessio is possession by succeeding to a deceased person's property. The Perpetual Edict is the Praetor's Edict, on which see n.75 below.

This sentence is also found at Cod. Just. 1.18.11. The rest of Cod. Theod. 3.5.3 (not found in Cod. Just.), omitted here, concerns minor women in the process of divorce whose husbands had not publicly registered their pre-nuptial gifts. Though the Code gives the names of both emperors, the place of issue and the addressee indicate that this is a law of the western emperor Honorius. Interestingly, the version in Justinian's Code (Cod. Just. 2.21.8) omits the word “women” and mentions only minors, implying a less lenient attitude on the part of the Justinianic compilers (Beaucamp 1990, 88). On the other hand, the western Interpretatio of Cod. Theod. 2.16.3 (dating to the later fifth or early sixth century) stresses that the law was made pro fragilitate sexus, because women have overlooked many things “through ignorance;” see Gaudemet 1959, 214.

This was originally part of a longer law; see Cod. Just. 5.1.5 in Chapter 2, Part II.C.

In the Republic and early Empire, the urban praetor, who was responsible for maintaining justice in Rome, published an edict at the beginning of his term in office stating what legal remedies he would make available for particular situa­tions. The praetorship was a one-year appointment, and praetors tended to take over the edict published by their predecessor, making additions or changes as they saw fit. By the early Empire few additions were being made, and Hadrian (117-138) asked the jurist Julian to put the Praetor's Edict into its final form. It is also called the “Perpetual Edict” (cf. n.71) because it was issued for the praetor's entire term in office rather than one specific occasion. See Johnston 1999, 3-4; Nicholas 1962, 21-3; and especially Watson 1974b, 31-62.

76   The final sentence of Cod. Just. 2.12.21, omitted here, reads: “But if he has received a mandate, though he is a husband, he ought to perform only that which the assigned procuratorship (i.e., the mandate to act as legal agent) has ordered.” This is not from Constantine's original law, but was added by Justinian's compilers, who took it from a law of Theodosius I (Cod. Theod. 2.12.4, 393). See Beaucamp 1990, 138, n.37; Arjava 1996, 144. The principle that a woman's husband can act for her without a mandate is found in classical law: D.46.73.3 (Ulpian); Arjava 1996, 244.

77   Valerius Maximus II.1.5a claims that in early Rome, matronly honor was afforded the protection of verecundia, so that not even the garment (stola) of a respectable woman could be touched when she was being summoned to court; see Gardner 1993, 105. On materfamilias, see Part I.B.

78   This law is also found at Cod. Just. 1.48.1 with slight changes. The principle that no one (male or female) should be dragged from his/her home appears also in earlier law: D.2.4.18 (Gaius) and 21 (Paulus); Arjava 1996, 244.

79   This is an excerpt from a much longer law, also at Cod. Just. 2.44.2 (in part). Though the manuscript date is 321 (the second consulship of Crispus and Constantine Caesar), it must be a mistake for 324 (the third consulship of the Caesars): see Mommsen's note ad loc. and Seeck 1919, 61-2.

80   This law is also found at Cod. Just. 9.4.3.

81   See Dixon 1984, 356-7; Marshall 1989, 52-3. Cicero's remark that “our ances­tors wished all women to be in the power of tutors on account of the weakness of their judgment” (Pro Murena XII.27) is often cited by scholars as a classic example, though Cicero probably did not mean it very seriously.

82   Also at Cod. Just. 10.32.44. See Beaucamp 1990, 29-31, on curial service as a male privilege/burden and cf. the Introduction, Part II and Part VI.C below.

83   Cod. Theod. 9.21.1 (319) though only the penalties according to status are given in the law. Cod. Theod. 9.21.4(329) extends special indulgence to widows and father­less minors whose lands are near the operating quarters of counterfeiters.

84    The Falcidian law of 40 B.C.E. said that one-fourth of an estate fell to the heir(s), even if the testator had bequeathed more than that amount in legacies to non-heirs. If a child had been left less than one-fourth by a parent (or than his or her share of the one-fourth, if there was more than one child), he or she could bring a “complaint of undutiful will” (querela inofficiosi testamenti) and, if successful, would get the requisite fourth. (See also Chapter 5, n.23 and n.45.) The Falcidian fourth is here referred to as the portion given to an “ungrateful” daughter, that is, a daughter who received only the minimum amount required by law (though in this case the mother could not leave more to her daughter even had she wanted to do so).

85    This is an excerpt from a much longer law, found also at Cod. Just. 9.8.5 (with some changes in wording). Though the Codes attribute the law to both emperors, it was actually a law of the eastern emperor Arcadius, as shown by the place of promulgation (Ancyra is the modern Ankara, in Turkey) and the addressee, who was praetorian prefect in the east.

See the remarks in Rowlandson 1998, 354, and discussion by A.L. Connolly in New Documents Illustrating Early Christianity, vol. 4 (Sydney: Macquarie University, 1987), 131-3.

Originally published in The Oxyrhynchus Papyri II, ed. B.P. Grenfell and A.S. Hunt (1899), reprinted in Hunt and Edgar, Select Papyri no. 60. See also BL VIII, 234; Rowlandson 1998, 178-9.

See n.29 above. She must have been a citizen of Alexandria, since her kyrios and grandson are both citizens of Alexandrian demes (below, n.90).

“Neos Sebastos” (‘'New Augustus”) is the Egyptian month Hathyr (October 28-November 26). The day of the month was for some reason left blank. Corrected from “Leneian” in the original publication; see BL VIII, 234. Demes were the divisions of Greek cities in Egypt (as in Attica in Greece): see Delia 1991, 49-70. All the parties to this agreement held Alexandrian citizenship, which carried prestige and privileges.

Indicates the agreement was made before a public notary (agoranomos).

Text used is The Oxyrhynchus Papyri XXXIV, ed. L. Ingrams, P. Kingston, PJ. Parsons, and J.R. Rea (1968), 101-3, with corrections from BL VI, 111 and BL VIII, 261 as noted. See also Rowlandson 1998, 94-5.

Other petitions from women against uncle guardians, from the same period as P.Oxy. XXXIV.2713, are: P.Oxy. XVII.2133 (late 3rd c.); P.Mich.XV.723 (4th c.); P.Cair.Isid. 63 (296), 64 (c.298), and 77 (320). For another complaint against a guardian (brought by the minor's mother), see Chapter 5, Part II.B.

See BL VIII, 111, citing a correction by H.C. Youtie in P.Oxy. XXXVI (1970), 95.

She died. For this reading, see P.Oxy. XXXVI, 95, a correction by J.R. Rea.

See BL VIII, 111 and P.Oxy. XXXVI, 95 for corrections to the original edition.

The Greek word is oikopedon, which denotes a building-site, with or without buildings on it. See G. Husson,OIKIA: Le vocabulaire de la maison privee en Egypte d’apres les papyrus grecs (Paris: Sorbonne, 1983), 210; BL VIII, 261.

Originally published in The Oxyrhynchus Papyri I, 133-4; cf. also BL I, 314. This is the second of three petitions to the same prefect on the same papyrus, of which the third is entirely lost. Unreadable words are represented by...

See BL I, 314 for this reading.

She seeks the prefect's subscription, the notation in his own hand at the bottom of the petition which indicated that he had read it and was directing her to a local official for redress. Cf. the petitions of Aurelia Artemis, about twenty years earlier, who also sought the prefect's subscription so that she could go to the epistrategos: see Chapter 5, Part II.B.4.

This is the suggestion of Crook 1986b, 89-91. For a different interpretation, see Dixon 1984, 363-9; cf. Gardner 1993, 97-100.

Dixon 1984, 363-7, who believes that the desire to protect a woman's dotal property from her husband, rather than “womanly weakness,” prompted the Senate's decree. Beaucamp 1990, 68-71 thinks it was intended as a protective measure, but for the jurists, protection was closely linked to women's weak­ness.

See Part VI.C below on women and civic responsibilities.

That is, the judges who are hearing a claim for recovery of a debt brought by the creditors of those on whose behalf a woman provided guarantees.

That is, and not their generosity to family members.

See Gardner 1998, 238 on this rescript. I have translated pradentes viri as “legal experts,” believing that it refers to pradentes iaris, jurisprudents.

Other parts of the law are at CTh 4.3.1, 4.8.9, and 11.30.52. Though the heading names all three reigning emperors, it was really an enactment of the senior emperor, Theodosius I, father of Arcadius and Honorius. See Arjava 1996, 239—40 on the s.c. Velleianam in late antique and early medieval law.

14              March, 200; Apokrimata 1-5 were posted on that day; 6-9 were posted the next day (15 March); 10-13 on the day after (16 March). Phamenoth is the Egyptian month corresponding to 25 February-26 March.

P.Col VI.123, first published in Westerman and Schiller 1954 (translation and some commentary by Westerman; legal commentary by Schiller). New exami­nation of the papyrus significantly changed the readings; see H.C. Youtie's corrections in Schiller and H.C. Youtie, “Second Thoughts on the Columbia Apokrimata (P.Col. 123),” Chroniqae d’Egypte 60 (1955), 327-45 and BL

IV.            17-21. I use the revised text in Oliver 1989, 451-8. The papyrus itself was found in the Fayum, not Alexandria.

Schiller (in Westerman and Schiller 1954, 38-49) considered them sabscrip- tiones, that is, rescripts to individual, non-official recipients similar to those found in the Cod. Just., as does Williams 1974. Lewis 1978, 269-70 defines apokrimata as “... pronouncements, oral or written, made by the emperors in the exercise of their judicial function,” and equates the Greek term apokrima with the Latin responsam rather than sabscriptio. Turpin 1981, 145-60, argues that apokrimata are to be equated with decreta, oral decisions, given by the emperors in person to the recipients on the days mentioned in the papyrus; this seems to me to be the most likely explanation. Another papyrus, P.Amh. II. 63, also contains one of the apokrimata in P.Col.VI.123, indicating that those other than the recipients were interested in the rulings, perhaps professional advocates or officials who wanted precedents for future cases.

This too is a matter of dispute. Schiller (in Westerman and Schiller 1954, 47) believed the apokrimata were Greek translations of Latin originals; on the other hand, Westerman (ibid., 11-12) saw no reason to think so. Lewis 1978, 262 believed they were originally in Latin; but Oliver 1989, 456 thinks they were more likely to have been in Greek originally.

C.B. Welles suggested [Ma]thalge (BL IV, 19); adopted by Oliver 1989.

Assuming that the apokrimata are decreta recording actual court hearings before the emperors (see n.110). If they are rescripts, [Ma]thalge, probably not a resi­dent of Alexandria, would have sent her son there to deliver her petition and bring back the answer.

Postalare, that is, to request the praetor or another magistrate to appoint a judge to hear one's case (in civil law), or to accept an accusation (in criminal law). See Crook 1995, 159-60; McGinn 1998, 45-8; and Arjava 1996, 235-6. A third group could not postalare on behalf of others except for close relatives (including in-laws) and patrons or patronesses and their children [D.3.1.1.7-11]. These included those subject to legal infamy (see n.122) such as actors, pimps, and those convicted of crimes such as armed robbery, iniaria (cf. n.119), fraud or theft, and others; see McGinn 1998, 46-8.

Nerecandia stolae. On verecandia, see Part IV.B. The stola was the traditional garment of the respectable married woman.

Calamnia was “vexatious prosecution” or bringing a false charge, punishable under the lex Remnia of the late Republic. Dropping a prosecution that one had already begun without having obtained an official annulment (abolitio) was also punishable under the senatasconsaltam Tarpillianam of 61 C.E. See Robinson 1995, 99-103, and cf. below at n.120.

A popalaris actio was one “which protects the law of the people” [D.47.23.1 (Paulus)], which could be brought by any (male adult) member of the public; see Crook 1967, 74-5.

Iniaria (‘'outrage” or “insult”) included not only physical assault, but defamation and harm to one's reputation; see Robinson 1995, 49-51. Cf. D.47.10.18.2 in Part V.B.1 below.

Note that if a woman did bring a prosecution when she was not allowed to and subsequently dropped it, she would not be liable under the s.c. Tarpillianam (on which see n.117 above): D.48.16.1.10 (Marcian).

A iadiciam pablicam was a trial by jury, specifically one held before one of the permanent jury-courts (qaaestiones perpetaae) established in the late Republic or under Augustus for certain offenses including forgery, murder, violence, treason and adultery (under Augustus' adultery law, the lex Jalia; see Chapter 2, Part I.B). See D.48.1.1 (Macer); Crook 1967, 69-73. By the early third century, the standing-courts had all ceased operating (Garnsey 1967), but even in late antiquity the offenses which had been tried in the jury-courts were still referred to as iadicia pablica, and the restrictions on who could bring an accusa­tion continued to apply (Beaucamp 1990, 41-5).

Those marked with legal infamia, who were subject to certain legal disabilities; see Gardner 1993, 110-54 and McGinn 1997, 44-69.

The emperor wrote underneath the petition Sabscripsi (‘'I have written under­neath” or “I have subscribed”). See Honoré 1994, 45 and Introduction, Part I.A. Cf. the prefect's subscription to petitions at n.100 above.

However, women could inform on themselves, if they had inherited illegally - and then they could keep half of the illegal legacy.

Cognitoria opera. A cognitor represented someone legally: see Crook 1995, 158; McGinn 1998,48-51. The word translated “affair” (res) can also mean “property.” Nidaa, which can mean a widow or divorcee, or even a woman who has never married (virgo); see D.50.16.242.3 (Javolenus) in Part I.B above.

The lex Fabia on kidnapping, which probably fell under the iadicia pablica; see Robinson 1995, 32-5. In the mid-third century, since the permanent jury­courts were no longer in operation (see n.121), the accused were subject to trial before a judge (cognitio extraordinaria), in this case, the governor.

The text used is Wistrand 1976; the inscription is also found at ILS 8393. For “Turia” see further Chapter 2, Parts I.D.2 and I.E.2.

An interdict was an injunction granted by the praetor: see Johnston 1999, 118-19.

The beginning of D.48.12.3, omitted here, actually calls the emperors “Antoninus and Verus,” which would be Marcus Aurelius and Lucius Verus rather than Septimius Severus and his son Antoninus (Caracalla), but the simi­larity in names would account for the confusion. This passage was taken from Papirius Justus' first book “on imperial constitutions” (de constitutiones), the first collection of imperial rescripts known to us (Kunkel 1973, 129-30).

The petitions are edited (with French translation) by Feissel and Gascou 1995, whose text I use. On the documents from the Middle Euphrates, see Feissel and Gascou 1989; Bowersock 1991; and Millar 1993, 452-81.

Feissel and Gascou 1995, 111 remark that both Bathsabbatha's name and that of her mother suggest Jewish connections, but her brother's name does not.

Feissel and Gascou 1995, 116-17. They compare D.47.2.73 (Modestinus), for another woman composing a petition (libelli) to give to the centurion (in the Digest case, however, the woman never actually handed in the petition, though it was later read aloud in court, evidently after being stolen).

Bathsabbatha identifies herself by her mother's name rather than, as was usual, her father's. This implies that she was illegitimate; the editors suggest (111-112) that her father may have been in the Roman army (which had a considerable presence in the region), since soldiers were not allowed to marry legally until at least the reign of Septimius Severus (see Chapter 3, Part I.C). The Greek word used, eleutheroumai, means “be freed” but Bathsabbatha evidently is referring to her recovery of a corpse rather than a living person (Feissel and Gascou 1995, 110).

This is the centurion's subscription, which gives Bathsabbatha the authoriza­tion she needs to pursue her accusation. The editors note that there is no closing salutation or signature by Bathsabbatha (the petition was written by a professional scribe with a practiced hand). Either it was at the bottom of the papyrus, which is broken off, or the papyrus we have was a duplicate, which was also certified by the centurion (Feissel and Gascou 1995, 107).

There were two stages in a criminal trial: the actio prima, followed by an adjournment, then the actio secunda, and then the verdict: Crook 1995, 132-4. It is puzzling that Maesia was acquitted after only one actio; but see Marshall 1990b, 51-2.

Possibly women no longer had the right to appear as witnesses in the fourth and fifth centuries, or so Constantine asserted in 326 (in Cod. Theod. 9.24.1; see Chapter 3, Part II.C). But this may be in regard to witnessing contracts rather than appearing in court; see Arjava 1996, 235-7.

The emperor Augustus' law on adultery; see Chapter 2, Part I.B. (This passage is from the second book of Paulus' commentaries de adulteriis.) Prostitutes were also prohibited from giving testimony in cases concerning the Julian law on violence: D.22.5.3.5 (Callistratus), and very likely in other cases as well: see McGinn 1998, 61-4.

That is, she could not be a witness to a will made by someone else. Women did have the right to make wills, but needed their tutor's consent; see Part III.A. The statements in the life of the emperor Heliogabalus (Historia Augusta, Hel. 4.1-2 and 15.6), that the emperor had his mother and grandmother invited into the Senate, would (if true) commemorate exceptional incidents: see Chastagnol 1979, 3-5; Talbert 1984, 162.

See Arjava 1991 on Greek titles, which were less defined than in the west.

Chastagnol 1979 suggests that Caracalla was responsible; Raepsaet-Charlier 1981 argues for Marcus Aurelius.

The same law (with the addressee called Martinianus) is found also at Cod. Just. 10.40.9 and at Cod. Theod. 2.1.7, which omits the second sentence.

An as is a small unit of Roman money; Septiciawill be paying 6 per cent a year. Septicia opens her declaration with the verb philotimoamai, which literally means “I am desirous of honor.” The word is frequently used in inscriptions praising benefactors who have given generously to their cities, presumably for the purpose of being honored by them.

New Roman">Pace van Bremen 1996, 234—5, the word filii could include female as well as male children: see D.50.16.84 and 116, in Part I.A. Perhaps the reason the Boule wanted to take administration of the contest away from Septicia's chil­dren was because they were daughters, not sons. On iniaria, see n.119 above.

The first two inscriptions, in Greek, are from H.W. Pleket's collection of inscriptions illustrating the social history of the Greek cities of the Aegean and Asia Minor (Pleket 1969). The texts are also found in Inscriptiones Graecae, XII.5, ed. F. Hiller von Gaetringen (1909).

The wife's property would still be kept separate from that of her husband, however: see Chapter II, Part I.E. A wife's property could not be distrained upon to pay for her husband's manera: Cod. Just. 4.12.3 (293).

See Cod. Just. 10.69.1 (Gordian) for the policy that a man who has five living children is excused from personal manera.

Though this law and the following (Cod. Theod. 13.5.12) are given in the names of both reigning emperors, the addressees (Olybrius was prefect of the city of Rome; Demetrianus the prefect of the grain supply of Africa, a western province) indicate that they are laws of the western emperor Valentinian.

The grammar of the law is very obscure; the word translated “since” is qaando, but the writer appears to mean qaoniam, otherwise the law does not make sense. I follow Mommsen and Pharr in accepting the meaning “since.”

The “gifts” are those given to the people in return for the honor of the praetor­ship. “Full age” means the legal age of twenty-five; “adult” is someone above puberty (fourteen for boys, twelve for girls) but below twenty-five.

The “glebal tax” was a tax on senators in proportion to their property. The word with asterisks is unclear; perhaps “Carbonarian” or “ cardinariam.”

Here one's foram is where one has obligations (manera). Navicalarii who try to get out of their responsibilities are to be stopped even after illegally receiving imperial permission to “transfer their forum.”

The “noble boy” (abbreviated “n.p.” for nobilis paer) is the future emperor Valentinian II, the son of Valentinian I.

2 MARRIAGE IN ROMAN LAW AND SOCIETY

This passage, from the Digest’s section on “definitions” (see Chapter 1, n.1), is also found at D.35.1.15, where the context concerns a legacy to be given to the wife as soon as she has married. These and the following passages have been suspected of being interpolated: see Wolff 1950, 26-7.

On affectio maritalis, see Treggiari 1991a, 54-57. Even if the phrase is a later interpolation, the idea is classical.

3   The jurist Cinna wrote during the late Republic. Note that in this passage it is the wife who is said to be absent, rather than the husband as in D.23.2.5. Thus the text has often been emended, but Lewis 1986 argues that this is unneces­sary. Cf. Watson 1967, 25-7; Donahue 1979, 7-13. On required mourning for a husband, see Chapter 5, Part I.A.

4    See Gardner 1986b; 1993, 179-91 on the use of proofs in legal matters. In the classical period, written documentation is not privileged over the oral evidence of respectable witnesses. The phrase in D.20.1.4, “if there is (unwritten) evidence to prove it,” may be a later interpolation: Gardner 1993, 181-2. Written documents deposited in the public records become more important in the late Empire, however; see Harries 1999, 70-6.

5    The phrase “for the sake of producing children” (liberoram procreandorum causa) is also found in Latin marriage contracts from Egypt (see Part III) and evidently was used in Augustus' marriage law (Part I.B): Treggiari 1991a, 8, n.37.

6    Marriage between a woman over fifty (and therefore past child-bearing age) and a man under sixty (and therefore still enjoined to procreate under the law) was similarly penalized by a decree of the Senate of unknown (but later) date (the s.c. Calvisianum): Rules of Ulpian 16.4; Treggiari 1991a, 78.

8    The Voconian Law of 169 B.C.E. said that women in the top property class could not be heirs. (Dio is incorrect in saying that women could not inherit property worth more than 100,000 sesterces.) Augustus allowed a woman to be heir to her husband (even if she was in the top property class) if they had had a certain number of children surviving to a certain age (one child beyond puberty, two beyond age three, three beyond the ninth day of birth), or if they were younger or older than the ages at which the Augustan law required them to be married, or were related within the sixth degree. (A husband could be heir to his wife in the same circumstances.) See Rules of Ulpian 16.1; and Treggiari 1991a, 69-71. If they did not meet these qualifications, spouses could inherit only one- tenth of each other's property.

9    From the requirement that widows remarry soon after their husband's death. According to Rules of Ulpian 14, the lex Julia said widows had to remarry within a year and the lex Papia—Poppaea had extended that to two years. Suetonius says the later law allowed three years.

10   Son of Livia's son Drusus, and adopted son of Tiberius. Germanicus and his wife Agrippina had nine children, of whom six survived past infancy.

11   Treggiari 1991a, 174 (cf. 1982, 42) believes such a union would be considered iniustum matrimonium: the partners would not have conubium (the legal right of marriage with each other) but the relationship would still have some of the consequences of marriages. Corbett 1930, 62 thinks the union was null.

12   Note that there is some disagreement about the meaning of this passage: cf. Treggiari 1991a, 174 n.99; Arjava 1996, 40. The Sententiae Pauli were written on the cusp of the late Roman period, and do not always represent classical law.

13   For a case where the mother of a fatherless pupilla not only administered her daughter's affairs, but even gave her in marriage, see Chapter 5, Part II.A.3.

An even more complicated question was whether the children of a father who had gone mad could marry without his permission. According to a law of Justinian (Cod. Just. 5.4.25), some jurists thought that a madman's daughter could marry, but his son could not. See Gardner 1993, 174-6 for an explanation. See also Chapter 1, Part V.B.2 on “Turia.” The text is fragmentary;... indicate where I have omitted sentences.

The Latin text used is the Loeb Classical Library edition of Pliny: Letters and Panegyrics, vol. 1, ed. Betty Radice (Cambridge, MA: Harvard University Press, 1969).

See Chapter 1, Part IV.C for the concept of “womanly weakness” (which lies behind Pliny's statement). On the other hand, in this letter and the next, Pliny refers to the pudor (‘'modest demeanor”) and verecundia (‘'sense of shame”) of men, terms which are often used to describe feminine modesty (see Chapter 1, Part IV.B). For Pliny they are equally admirable in males.

Apparently this means that part (or all?) of what Calvina's father had given her as dowry was actually money he owed to Pliny, so it came, so to speak, from Pliny's account. See A.N. Sherwin-White, The Letters of Pliny: A Historical and Social Commentary (Oxford: Clarendon Press, 1966), 149, who considers the letter, with its blunt discussion of Calvina's father's debts and of Pliny's own generosity, “a remarkable document of Roman lack of delicacy.”

On munera, see Chapter 1, Part VI.C.

Senatusconsultum de Cn. Pisone Patre lines 100-6. For discussion of this passage see David Potter, “Senatus consultum de Cn. Pisone,” Journal of Roman Archaeology 11 (1998), 437-57, at 447. Potter points out that one million sesterces was probably equivalent to a year's income on Piso's estate, the standard proportion for a dowry in an elite Roman family (Saller 1994, 216-17, and cf. Pudentilla's dowry, Part I.D.2). However, he errs in saying that Roman fathers often left daughters “nothing beyond the money for the dowry” in their wills; see Saller 1994, 210-21.) On a daughter's peculium, see Saller 1994, 218-20.

If a man served as a magistrate, he would be obliged to pay for games as part of his official duties (munera); see n.19 above.

Quintus Mucius Scaevola (consul 95 B.C.E., died 82 B.C.E.) was one of the earliest jurists whose work is cited in the Digest (Nicholas 1962, 40; Robinson 1997, 43-4). The legal presumption that what a woman owned came from her husband unless otherwise proven is known as the praesumptio Muciana.

Wistrand 1976, 39-40 and Treggiari 1991a, 377, suggest that “Turia's” husband may have also been her guardian. Horsfall 1983, 92 suggests that they had a manus-marriage (as did “Turia's” sister and her husband and her father and his wife). Manus-marriage was uncommon by the later first century B.C.E. (see Chapter 1, Part II.B), but is possible in this case. In manus-marriage, the wife's property would have become her husband's, and she would have been his heir along with any children he had.

This excerpt also appears in Cod. Just. 8.57.1, except for paragraph (2). It was originally part of a longer edict on inheritance and debt, parts of which are found elsewhere in the Codes. Serdica is now Sofia, Bulgaria.

See Part I.B and Chapter 1, Part III.D on the ius liberorum. Cod. Theod. 8.17.1, a law of the eastern emperor Arcadius dated 396, allowed couples to petition for the ias liberoram at any time and age, since “the despair of (having) children alone shall be enough for the wretched to seek aid.”

Found at Cod. Just. 8.57.2 and 8.58.1 respectively. Another part of the same law, not in the Theodosian Code, is found at Cod. Just. 1.19.6. Though in the names of both reigning emperors, this was actually a law of Theodosius II only. Isidorus was prefect of Constantinople.

Nir clarissimas, a man of senatorial rank. See Chapter 1, Part VI.A.

Cod. Theod. 5.1.9, given at Constantinople 21 February, 428. This law repeals an earlier law, otherwise unknown, that had apparently allowed spouses to be each other's heirs without a will, even when there were living kin of the deceased spouse. Cod. Theod. 5.1.9 also refers to the ancient skepticism about the motives of spouses toward each other, as did Constantine's law of 320.

Valentinian, Novel 21.1; see Arjava 1996, 126-7. It appears from the law that Leonius' right to inherit in full from his wife was being challenged, probably by her relatives. They may have received the ias liberoram before the publication of the Theodosian Code in the west seven years earlier. In classical law, joint wills were not valid (Schulz 1951, 206).

See Arjava 1996, 133-56 for a discussion of married women's property and the financial relationship between husband and wife in late antiquity.

In early Roman law, betrothal had been actionable, but this was no longer the case by the first century B.C.E. See Corbett 1930, 8-16.

The “Interpretation” of Cod. 3.5.5 applied the sanctions affecting those who betrothed a woman to a civilian as well as a soldier, but this dates to the late fifth or early sixth century and cannot be taken as evidence of the intent of the original law.

Cod. Theod. 3.5.4 is also found at Cod. Just. 5.1.2 (with the addition of “while living in the same province” after “within two years”); 3.5.5 is not in Cod. Just.; see Beaucamp 1990, 254-5. Marcianopolis is in Bulgaria.

But note that Cod. Theod. 3.7.1 explicitly involves widows. Humbert 1972, 373-7 thinks Cod. Theod. 3.7.1 was intended to discourage widows from remarrying and thus belongs to a series of fourth and fifth century laws that placed restrictions on widows who remarried, which he thinks are due to Christian influence (see Chapter 5, Part I.B). However, Cod. Just. 5.4.20 (the second law) says nothing about widows, but both laws refer to women under twenty-five who have been emancipated from paternal power.

See D. 45.1.134 pr. (Paulus) for the classical view of this situation.

That is, if the widow should die.

This law is found also at Cod. Just. 5.4.18. Despite the attribution in the Codes to all three reigning emperors, it is a law of Valentinian alone.

That is, underpatria potestas. Such circumlocution is typical of late Roman laws. Nerecandia, on which see Chapter 1, Part IV.B.

The date is lost. The law is perhaps part of the same legislation as Cod. Theod.

3.10.1           (on which see Chapter 3, Part II.C). Though in the name of both emperors, it is a law of Honorius only.

Defensor, i.e. a tutor or curator.

This is part of a longer law (as the phrases “after other matters” and “and other matters” indicate), also including Cod. Theod. 3.13.3 (on dowry; in part II.C below) and Cod. Just. 5.9.4 (on bona materna, on which see Chapter 5, Part I.B). Also at Cod. Just. 5.1.4. Though in the names of both reigning emperors, it is a law of Honorius only, as it was enacted at Ravenna, seat of the western emperor at this time.

For laws on Christian celibate women, see Clark 1993, 50—6; Arjava 1996, 157-67; Evans Grubbs 2001.

Greek text is from Gregoire de Nysse: Vie de Sainte Macrine, ed. P. Maraval (Paris: Sources Chretiennes 178, 1971). See Maraval 35-67 for discussion.

Latin text is from Patrologia Latina 16, col. 203-6. See N.B. McLynn, Ambrose of Milan (Berkeley: University of California Press, 1994), esp. 53-6 and 60-8.

The Latin word is parentes, which can mean “parents” or “relatives” more gener­ally; see D.50.16.51 (Gaius), in Chapter 1, Part I.B. It is clear from the passage, however, that Ambrose is talking about young women whose fathers are dead (and who therefore are not bound by the decision of a paterfamilias).

The relative who had asked whether her father would have approved.

On the western Empire in this period, see J. Harries, Sidonias Apollinaris and the Fall of Rome (Oxford: Clarendon Press, 1994), esp. 82-102 on Majorian.

An earlier law, Cod. Theod. 16.2.27 (Theodosius, I, 390) had said that women could not become deaconesses until they were at least sixty, invoking 1 Timothy 5:9, which had said that no one under sixty was to be enrolled in the order of widows. The law was rescinded soon afterwards: see Chapter 5, Part I.B and Evans Grubbs 2001. On the other hand, Majorian’s age limit applied to all consecrated virgins, not just deaconesses (who were unknown in the western church). Theodosius’ law was concerned with safeguarding the property of wealthy Christian women for their families, whereas Majorian was concerned with promoting child-bearing, and so allowed consecration only after women had passed the age at which they could be expected to have children. His age limit is in line with ecclesiastical rulings: in 451, Council of Chalcedon (Canon 15) had said deaconesses could not be ordained until the age of forty; in 380, the Council of Saragossa (Canon 8) had said holy virgins were not to be veiled before forty.

The most exhaustive treatment of pre-nuptial gifts and arrhae sponsaliciae is L. Anne, Les Rites des fianpailles et la donation pour cause de mariage dans le Bas-Empire (Louvain, 1941). For a succinct treatment, see Arjava 1996, 52-62; for Constantine’s legislation, see Evans Grubbs 1995, 156-83.

This law is found at Cod. Just. 5.3.15, with some changes. Two dates are preserved: that of the law’s enactment and of its publication (posting) in Rome.

Also at Cod. Just. 5.3.16. Hispalis is the modern Seville. Again, dates of both issue and posting have been preserved.

Though in the name of all reigning emperors, this is a law of Theodosius, emperor of the eastern half of the Empire, as indicated by the place of promul­gation (now Thessaloniki in northern Greece).

Other parts of the same original law are found at Cod. Just. 5.1.3 (= the missing Cod. Theod. 3.5.10); Cod. Theod. 3.6.1; 3.11.1; 4.19.1; 6.10.1; 9.27.2; 9.42.8-9; Cod. Just. 6.23.16. Not all of these have to do with betrothal, but they do involve issues of family wealth (e.g. inheritance). Note that Cod. Theod. 3.5.11 is not found in Cod. Just., since the quadruple penalty was abolished by the eastern emperor Leo in 472 (Cod. Just. 5.1.5, below).

Cod. Theod. 3.5.10 (now lost, but also at Cod. Just. 5.1.3).

Originally part of the same law as Cod. Theod. 3.5.12 (see n.42 above) and Cod. Just. 5.9.4. A briefer version is found at Cod. Just. 5.18.11.

On the classicizing tendencies of the eastern Empire, see Honoré 1998. The eastern origin of this law is clear, since it was issued at Constantinople.

This law is found also at Cod. Just. 5.4.22, and is part of the same legislation as Cod. Theod. 4.6.8 (on which see Chapter 3, Part II.B.1, n.66).

This refers to Cod. Theod. 3.8.2 (382) and Cod. Just. 5.10.1 (392), laws of Theodosius II's grandfather Theodosius I, which said that if a widow remarried, she had to pass on to the children of her first marriage anything she had received from her first husband. Theodosius I had recommended that when a widower remarried, he pass on whatever he had received from his first wife to the chil­dren of his first marriage (Cod. Theod. 3.8.2; see Chapter 5, Part I.B). In his law, Theodosius II gives legal force to his grandfather's recommendation, making remarried men subject to the same rules as women.

Under classical divorce law, revived by Theodosius II two months before this law (his Novel 12 in Chapter 4, Part II), a husband was able to retain part of his ex-wife's dowry if the divorce had occurred through the fault of the wife. In this law, Theodosius II allows ahusband to get back all of his pre-nuptial gift, even if it had been absorbed in his wife's dowry, if the divorce was due to her fault.

The earlier legislation referred to is Cod. Theod. 8.19.1 (Honorius, 426); cf. also Cod. Theod. 8.18.1-3 (Constantine; see Chapter 5, Part I.B) which had deprived fathers with patria potestas of the right to sell or give away their chil­dren's maternal inheritance. Under classical law, everything children under paternal power received or owned, including anything left to them by their mother, legally belonged to their father, and was considered peculium. Theodosius II applies the provisions of the earlier laws to pre-nuptial gifts or dowry received by a married person still under paternal power: it is to go to their children, not to their paterfamilias.

Vir clarissimus, see n.27 above. An abbreviated version of this law is found at Cod. Just. 5.9.3. Its place of issue, Constantinople, indicates it is a law of Theodosius II, despite its attribution to Valentinian III also.

Though in the name of both emperors, this is a law of Theodosius II alone (Hormisdas was praetorian prefect of the east) and reflects the legal approach of his consistory (cf. n.58 above).

Presumably meaning Albinus, serving his second stint as praetorian prefect. So I interpret the reference in the law's preface to men “recalled” to the imperial court.

See Barnish 1988 on the western senatorial aristocracy at this time, with some interesting speculations on the impact of imperial laws on dowry, donatio ante nuptias, and remarriage.

Addressed to the praetorian prefect Firminus and enacted at Rome on 15 April, 452. For the provisions on divorce, see Chapter 4, Part II. This law is not in the Code of Justinian.

Her pudor, on which see Chapter 1, Part IV.B. A husband's gifts were regarded as made in return for his wife's sexual chastity. See Evans Grubbs 1995, 177, 181, 195; Cod. Theod. 9.42.1 (Constantine, 321), and for an earlier period, Pliny, Epistles I.14.

The “dear and devout names” are those of the deceased husband's parents.

In other words, the deceased wife's relatives usually get half of her dowry back if there are no children, but the husband ought to keep any part of the dowry which was originally his pre-nuptial gift and was converted into dowry upon marriage (see Novel 14 of Theodosius II, above, for this practice). The emperor wants to ensure that the widowed husband can give an adequate gift to his second wife should he wish to remarry.

In other words, the bride's parents demand a huge pre-nuptial gift, and then refund it to the couple in the form of the bride's dowry. Novel 14.3 of Theodosius II (above) had said that this commonly happened in the east; clearly Majorian did not think it should in his territories.

Other excerpts from Leo's original law are found at: Cod. Just. 1.18.13 (translated in Chapter 1, Part IV.A); Cod. Just. 5.30.3 (on which see Chapter 1, Part III.E, at Cod. Theod. 3.17.2); Cod. Just. 5.6.8, which says that marriage between a girl and a man who has usurped the function of a guardian but is not really her guardian is legal (cf. Chapter 3, Part I.C.2); and Cod. Just. 1.4.16, which is the same as para­graphs 3,4, and the beginning of 5 ofCod.Just. 5.1.5.

The “indulgence of age” (venia aetatis), which could be granted by request to women at age eighteen, enabled a woman under twenty-five to conduct her affairs as an adult. See Cod. 2.17.1 (translated in part in Chapter 1, Part IV.B). Beaucamp 1990, 254-5 compares this law to Cod. Theod. 3.5.5 of Constantine (in Part II.B) and Cod. Theod. 3.5.11 of Theodosius I (above). She notes that whereas in the earlier laws, the guardian's responsibility for making the betrothal (and hence his liability if it is broken) is as great as that of the paterfa­milias, in Leo's law the guardian plays only a subsidiary role, as one “through whom” the woman may have made the betrothal. Her mother, on the other hand, is considered as responsible as her father (or grandfather or great­grandfather) and penalized accordingly.

In other words, if arrhae had been given for a prohibited marriage (see Chapter 3, Part II), then presumably the whole transaction is void and no penalty applies. But if the marriage was allowed by law, then breaking the betrothal entails a penalty. The next paragraph gives an exception to this rule.

The rest of the law, not translated here, applies the exceptions given in para­graph (3) to men also, abolishes the quadruple penalty known from the legislation of Theodosius I (e.g., Cod. Theod. 3.5.11, above), and says that no stipulations other than those made in the law are valid: “since the power of contracting marriages ought to be free.”

There is an up-to-date list of all known marriage contracts from Egypt and the Near East by Instone Brewer at www.Instone.Brewer.com, with links to texts available on-line. Note also an unpublished contract dated to the third century, apparently from Bostra in the province of Arabia: see H.M. Cotton, W.E.H. Cockle and F.G.B. Millar, “The Papyrology of the Roman Near East: A Survey,” JRS 85 (1995), 214-35 at 223.

See Rowlandson 1998, 156-60 for examples.

See Rowlandson 1996, 317-19 for contents of dowries from Oxyrhynchus.

For example, P.Ryl. II.154 (66 C.E.); BGU IV.1045 (154). See Wolff 1939. The practical differences between “unwritten” and “written” marriages are not very clear; one difference seems to be that the father of a daughter born in an unwritten marriage could force her to divorce against her wishes (cf. Chapter 4, Part I.E).

The Gnomon of the Idiologos is a list of rules for application by Roman officials in Egypt. Many of the rules go back to Augustus, though the Gnomon as found in the papyri dates to the second century. Among the rules are many relating to marriage and inheritance, from which it is clear that Roman marriage law, including the ban on incestuous marriages, was applied to Roman citizens. See Rowlandson 1998, 175-7 for partial translation.

Much has been written on sibling marriage in Roman Egypt. See Hopkins 1980; Lewis 1983, 43-4 and 69-73; and recently, W. Scheidel, “Incest Revisited: Three Notes on the Demography of Sibling Marriage in Roman Egypt,” BASP 32 (1995), 143-56, and Measuring Sex, Age and Death in the Roman Empire: Explorations in Ancient Demography (Ann Arbor: Journal of Roman Archaeology Supplementary Series 21, 1996), 9-51.

See O. Montevecchi, “Endogamia e cittadinanza romana in Egitto,” in Montevecchi 1998, 251-8 (orig. pub. 1979); Chapter 3, Parts I.A.5 and II.A.

BGU I.183 (M.Chr.313), dated 85 C.E.; see Hopkins 1980, 322-3. It was not uncommon to combine marriage agreements with property settlements on the bride: Rowlandson 1996, 162-4. In this case, the mother divides her property among all her surviving children (and the children of a deceased child).

Discussion of marriage contracts in Roman Egypt in Wolff 1939; Modrzejewski 1993 (1981); Katzoff 1995a; and Rupprecht 1998. For lists of marriage contracts from Egypt, see most recently Brewer (above, n.78); earlier lists in Montevecchi 1936, 4-6, updated in Montevecchi 1988, 203-5.

Yiftach 1997, 178 defines synkhoresis as “an address to a governmental authority, in this case municipal jurisdiction, informing it of the accomplishment of a transaction.” The documents from the Protarchos archive are the only known marriage contracts drawn up in the form of a synkhoresis. Other documents from the Protarchos archive can be found at Chapter 4, Part III.A (BGU IV.1102) and Chapter 5, Part III.C (BGU IV.1104).

The others are BGU IV. 1051, 1052 (also in Hunt and Edgar, Select Papyri no. 3); 1098-1101; and P.Berol. 25423, in W. Brashear, “An Alexandrian Marriage Contract,” in Classical Studies in Honor of David Sohlberg, ed. R. Katzoff, with Y PetroffandD. Schaps (Ramat Gan: Bar-IlanUniversity Press, 1996), 367-84.

Originally published in W. Schubart, ed., Aegyptische Urkunden aus den Königlichen Museen zu Berlin. Griechische Urkunden IV (Berlin, 1912, rpt. on microfiche from Scholars Press). See BL I, 92 for revised readings. I use the text as found in Pestman 1994, 100-2. According to Pestman, traces of a date can be read at the end of the document.

In Roman Egypt, the drachma was a silver-alloy coin (which became more and more debased in the later Empire), and the standard unit of currency. It was equivalent to a Roman sestertius; four drachmas (a tetradrachm) was equivalent to the Roman denarius.

This is the so-called “moral” or “good behavior” clause, stating the expected proper behavior for each spouse, and the penalty a spouse who fails to behave accordingly will undergo. In the Roman period, the stated expectations become less explicit than in the Ptolemaic contracts. See especially Rupprecht 1998.

The meaning of this clause is debated. The hierothytai were a board of priests, and Wolff 1939, 34-47 suggests that a marriage that was also filed with the hierothytai was “more solemn,” and desirable for establishing the eligibility of the couple's offspring for privileges in Alexandrian society (cf. Delia 1991, 55 n.25). Recently, however, another synkhoresis from the Protarchos archive has been published (P.Berol. 25423, see n.88 above). In that document the couple add, after the clause about filing a contract with the hierothytai, provisions for their property in the event that one of them should die. It appears the contract filed with the hierothytai also contained those provisions. The second document then serves the purpose of a will (though it is not awill itself); see Yiftach 1997.

93   See Boak 1926, with his revised interpretation in P.Mich. II, pp. 29—33 (on P.Mich.II.121.recto II.i, another alimentary contract).

94    Text used is Papyri from Tebtunis Part I (P.Mich. II), ed. A.E.R Boak (Ann Arbor: University of Michigan Press, 1933), pp. 45—50. The names of the wife's father and mother's father are not certain.

95    This is the explanation of A. Bruckner and R. Marichal in Chartae Latinae Antiquiores (Ch.Lat.Ant.) IV (Olten and Lausanne: URS Graf Verlag, 1967), no. 249, pp. 49—53, whose text I am using. On the other hand, H.A. Sanders, in his publication of P.Mich. VII.434 (Latin Papyri in the University of Michigan Collection, Ann Arbor, 1947, 21—7; original publication in TAPA 69 [1938], 104-16), explained the text as in the form of a papyrus “diploma,” analogous to a wax tablet diptych (for which see Chapter 1, Part III.C on SB III.6223), of four pages, with the text written once on the outer (first and fourth) pages and again on the inner (second and third) pages, with the inner sewn shut to protect the text; Sanders' explanation was accepted by C.H. Roberts and E.G. Turner, editors of P.Ryl. IV.612 (Catalogue of the Greek and Latin Papyri in the John Rylands Library Manchester IV, 1952). Given the fact that papyrus was used rather than a wax tablet, it seems to me more likely that this was a “double document” of the type found in the Cave of Letters (Part III.B) and elsewhere in the east rather than a four-leaf papyrus on the model of a wax tablet.

96   I am using the text in Ch.Lat.Ant. IV.249 (see note above). The combined text of P.Mich. VII.434 and P.Ryl. IV.612 is also published in Corpus Papyrorum Latinarum (= CPL), ed. R. Cavenaile (Wiesbaden, 1958), nos. 208-9, pp. 313-17, with a few different readings. (The text in FIRA III.17 is based only on P.Mich. VII.434 and therefore superseded by Ch.Lat.Ant. and CPL.) Because both inner and outer texts are fragmentary, I draw on both for my translation; thus brackets indicate restorations only when words are missing from both inner and outer texts. Words that cannot be restored are indicated by “...”

97   But see BL IX, 160: he may be [L. Ignatius]s Nomissianus, not. [C.. Antistiu]s.

98   C. Antistiu]s Nomissianus filiam suam virginem [Zenarion e lege Iuli]a quae de mari­tandis ordinibus lat[a est liberorum procreando]rum causa in matrimonio eam collo[cavit (P.Mich. VII.434). The word eam (her) is readable only in P.Mich. VII.434; it appears to be the object of collocavit, but this is redundant since filiam suam virginem Zenarion has already been expressed as object. Sanders in P.Mich. VII.434, suggests reading eram (meaning “mistress of a household”) but era is an unusual word and it is perhaps better to see eam as an example of grammatical infelicity on the part of the composer of the text, as do the editors of Ch.Lat.Ant. IV.249.

99   The Augustan marriage law of 18 B.C.E., on which see Part I.B. The last letters of “procreating” (ndorum) are visible in P.Ryl. IV.612, so the restoration is almost certain. Cf. Cod. Just. 5.4.9 in Part I.A.

lugera are the Latin equivalent of the Greek arouras, a unit of land equivalent to 0.68 of an acre. Katoikic land was a special category of private land; see Rowlandson 1996, 41—8.

The meaning of this word (cottatia) is unknown, but apparently it refers to some sort of jewelry. The words “silver bracelets” are barely discernible.

The meaning of heratianon is unknown. It may be a type of clothing, or possibly a statuette of the goddess Hera, like the statuette of Aphrodite (see below). The word evidently comes from Greek, like many of the words in this ostensibly Latin document; see Sanders' note adloc. in P.Mich. VII.434, p. 25.

style='font-size:9.5pt'>A statuette of Venus/Aphrodite. Such bronze statuettes appear as part of the parapherna in eight other marriage contracts (usually of quite wealthy metro- plitan dwellers) and are known from other types of documents too. Their purpose was presumably to ensure sexual success and fertility. See F. Burkhalter, “Les statuettes en bronze d'Aphrodite en Egypte Romaine d'apres les documents papyrologiques,” Revue Archeologique 1 (1990), 51—60.

Greek text found in The Oxyrhynchus Papyri X, ed. B.P. Grenfell and A.S. Hunt (1914), 207—10; also in Hunt and Edgar, Select Papyri vol. I, no. 5.

A dalmatic, a tunic with wide full sleeves, was an item of women's clothing that came into fashion in the later Empire. See Walker and Bierbrier 1997, 161—2 and 178—9 for illustrations. A “dalmatic cape” (delmatikomaphorte) may be a dalmatic tunic with a hood or cloak attached.

A chiton was a tunic, a standard item of both men's and women's clothing. This tunic is described as monachon, “made out of a single piece of cloth” (BL IX, 184; citing L. Casson, The Periplus Maris Erythraei, 248). See Rowlandson 1998, 313—16 for women's clothing often found in dowry lists; Walker and Bierbrier have many illustrations of both clothing and jewelry.

Compare this with Roman legal procedures in the event of divorce when the wife is pregnant, for which see Chapter 4, Part I.E.2.

The Egyptian month corresponding to 26 January—24 February. The emperors are Valerian and Gallienus, the year is 260.

Greek text in The Oxyrhynchus Papyri XLIX, ed. A. Bulow-Jacobsen and J.E.G. Whitehorne (Cambridge, 1982).

See Modrzejewski 1993 (1981), 57—60 on self-ekdosis (he did not know of P.Oxy. XLIX.3500, which was published in 1982). Cf. H.A. Rupprecht, review of P.Oxy. XLIX in ZSSR,RA 101 (1984), 349 (cited in BL VIII, 271).

Rupprecht (cited n.110 above) suggests that the dowry may have been the subject of another document drawn up later.

That is, both also embalmers.

Though the total number of extant papyri also drops in the third, fourth, and fifth centuries, the decline in the number of marriage contracts is even greater. (It does pick up again in the sixth century; see Beaucamp 1992, 106-16.) There are also two fragments of possible marriage contracts from the fifth century, SB XII.11075 and BGU XIII.2328. I owe this information to A. Arjava.

The name is somewhat garbled. The phrase immediately before “according to... law” is missing except for the last word “for the sake of;” the editor plausibly supplies “the procreation of legitimate children” in the lacuna. Cf. the Latin contract (Part III.A.3 above), which uses the same terminology, evidently taken from the law itself. See n.99 above.

Text in Einige Wiener Papyri, ed. E. Boswinkel (Leiden, 1942). The date is 304, not 305 as in P.Vind.Bosw.: see Bagnall, Cameron, Schwartz and Worp 1987, 143.

Cf. P.Oxy. II.281 in Chapter 4, Part III.A.2 for a similar situation three centuries earlier. As far as I know, this earlier papyrus has not been mentioned in connection with P.Ross. Georg. III.28, which is usually said to be the earliest attestation of such an arrangement.

Papyri Russicher und Georgischer Sammlungen III. Spatromische und byzantinische Texte, ed. Gregor Zereteli and P. Jernstedt (Tiflis, 1930), 114—21. The date is 358: Bagnall, Cameron, Schwartz and Worp 1987, 69 and 251; BL IX, 226.

“In late 313 or early 314, yet another form of chronological reckoning appears, the indiction. The indiction cycle contained fifteen years and was counted from 312; a new cycle thus began in 327, 342, and so on, and the same year number would recur at intervals of fifteen years. A document dated only by indiction number, therefore, while perfectly clear in its original context, cannot be given an exact date now except by other information such as prosopography” (Bagnall 1993, 328).

Evidently these items were accidentally left out of the enumeration of the wedding-gift and are added here. The phrase “But indeed, also...” (ou men alla) must have been taken down just as it was spoken.

The Greek word is strophe. See editor's note at P.Ross.Georg. p. 120. Asep's abandonment of Apia is seen as a betrayal not so much of her as of her father!

P.Strass. III.131, published in Papyrus Grecs de la Bibliotheque Nationale et Universitaire de Strasbourg, ed. P. Collomp et al. (Paris, 1948), 6—7; republished as 8013 in SB V (Heidelberg, 1934). See also BL III, 232; BL V, 130-1; and BL X, 254.

PJand.Inv.Nr. 507, dated 489/90, now published as SB XVIII.13886 (ed. H.- A. Rupprecht, Wiesbaden, 1993). The couple agree they have come together in marriage, and the duties of each are apparently set out, with the husband promising to support and clothe his wife, and the wife declaring that she will love her husband and work with him to maintain their common home.

See La Ketouba de Cologne: Un contrat de mariage juif a Antinoopolis, ed. C. Sirat, P. Cauderlier, M. Dukan, and M.A. Friedman, with French translation.

For a list of Jewish marriage contracts (Greek and Aramaic), see Cotton 1994. Translation of P.Mur. 20 and 21 (both in Aramaic) and P.Mur. 115 and 116 (both in Greek) in Archer 1990, 291-7. The other Greek contracts are P.Yadin 37 (also from the Cave of Letters), translated in Lewis 1989, 131-2; and X.Hev/Se Gr. 2, first published (with translation) in Cotton 1994, final publi­cation in Cotton and Yardeni 1997. The other Aramaic contracts are P.Yadin 10 (see n.130 below) and the fragmentary X.Hev/Se 11 (also in Cotton and Yardeni 1997).

See discussion of “Jewish Law and Society” in Cotton and Yardeni 1997, 153-6.

On Babatha and the province of Arabia, see Millar 1993, 20-1, 92-9, and 414-28, G.W. Bowersock, Roman Arabia (Cambridge, MA: Harvard

University Press, 1983), 76-89. Lewis 1989 is the publication of the archive's Greek papyri, reviewed by Bowersock 1991. The archive is also sometimes referred to as “P.Babatha.”

I follow the Greek text in Lewis 1989, 76-82. Original publication in Lewis, Katzoff, and Greenfield 1987. See also BL IX, 376 and BL X, 286. There is an excellent illustration in Lewis 1989, Plate 18. Words in brackets [ ] indicate words missing in the papyri, but restored on the basis of the inner text. Words in parentheses ( ) are supplied by me for explanatory purposes.

Pace Katzoff in Lewis, Katzoff, and Greenfield 1987, 237. Cimber is a cognomen, not a nomen, and is not an indicator of citizen status.

By Wasserstein, “A Marriage Contract from the Province of Arabia Nova: Notes on Papyrus Yadin 18,” Jewish Quarterly Review LXXX (1989), 93-130. Katzoff responded to Wasserstein's criticisms in “Papyrus Yadin 18 Again: A Rejoidder,” Jewish Quarterly Review LXXXII (1991), 171-6; cf. N. Lewis, “The World of P.Yadin,” BASP 28 (1991), 35-41. See also J. Geiger, “A Note on P.Yadin 18,” ZPE 93 (1992), 67-8.

P.Yadin 10, published in the Israeli Exploration Journal 44 (1994), 75-101.

Cf. the Latin marriage contract in Part A for the groom's contribution. See Part II.C for pre-nuptial gifts in Roman law. For hedna in later documents from Egypt, see P.Grenf. II.76 and P.Oxy. LIV.3770 in Chapter 4, Part III. For the groom's contribution here as a Jewish practice, see Katzoff at Lewis, Katzoff and Greenfield, 1987, 242; cf. R. Katzoff, “Donatio ante nuptias and Jewish Dowry Additions,” in N. Lewis, ed., Yale Classical Studies vol. XXVIII: Papyrology (Cambridge: Cambridge University Press, 1985).

Greek “helleniko nomo.” The meaning of this phrase has been much discussed. See Lewis, Katzoff, and Greenfield 1987, 240-2 and n.129 above.

Judah will buy back the contract. This has parallels in Aramaic documents from the Judaean desert: see Katzoff in Lewis, Katzoff, and Greenfield 1987, 242-3.

Cf. BGU IV. 1050 and P.Oxy. X.1273 in Part A above for this clause.

This is a stipulatio clause, denoting that the contractants were asked formally if they agreed with what had been stated, and they then orally stipulated that they did. It reflects Roman law. This is the earliest extant example of a stipu­latio clause in a Greek document; it becomes common only in the third century (cf. P.Oxy X.1273 and P.Ross.Georg. III.28 in Part A above). See Katzoff in Lewis, Katzoff, and Greenfield 1987, 236-7.

In Greek, liblarios. The same Theenas son of Simon appears as liblarios in P.Yadin 15 and 17, and a certain Germanos is liblarios in P.Yadin 20-2. Lewis 1989, 64 (note on P.Yadin 15.18) says this is the Greek transliteration of Latin librarius (a scribe or copyist). But Bowersock 1991, 339 (cited in BL X, 286), argues for a Greek version of Latin libellarius, someone who wrote libelli (peti­tions). Given the context, librarius seems to me preferable.

See F. Cumont, ed., Fouilles de Doura-Europos (1922—1923): Texte (Paris, 1926), 344-7 and 416-19. I am grateful to Simon Corcoran for this reference.

This doesn't quite add up. 175 plus 565 comes to 740, not 750.

size=2 color=black face="Times New Roman">Text used is Welles, Fink, and Gilliam 1959, 156-8; cf. BL VI, 34. In the translation... marks where words or letters are missing; words in brackets are missing but have been supplied by the editor.

Agathe Tyche, “Good Luck” or “Good Fortune.” This appears also at the begin­ning of marriage contracts from Egypt (Welles, Fink, and Gilliam 1959, 155 n.13); cf. P.Oxy. X.1273 in Part A above.

Parapheromen[en. See BL VI, 34 for supplement of [proika], which only appears in the extant text in relation to the groom's contribution. Because of the frag­mentary state of the text, it is impossible to be sure if the 565 denarii of silver are supposed to be the total of the items listed (which appear to come to 510 denarii) plus a small amount of cash, or if the 565 denarii are in addition to the material items. I am assuming the latter. The clothing items listed would then be parapherna, rather than proix.

These were apparently men who verified the value of the items listed to the satisfaction of both parties. See n.28 in Welles, Fink, and Gilliam 1959, 159.

3   PROHIBITED AND NON-LEGAL UNIONS

Romans counted kinship by degrees based on how many acts of generation were required to produce the relationship. A person was related to his parents and to his children by one degree, to his siblings and grandchildren by two degrees, to his grandparents, aunts/uncles and nieces/nephews by three, to his cousins and great-uncles/aunts by four, and to his second cousins by six. See Goody 1983, 136—8 and D.38.10, summarized in Justinian, Institutes III.6.

... indicate sentences omitted in this translation.

The word used is sobrinarum, which usually means “second cousins,” as opposed to consobrini/ae, “first cousins.” See Goody 1983, 50—2.

In Suetonius' account (Deified Claudius 26.3) a freedman and a primipilaris (chief centurion) are said to have taken advantage of Claudius' encouragement of uncle-niece marriages.

Mosaicarum et Romanarum Legum Collatio VI.4, in FIRA II, 558-60. On the Collatio generally, see Corcoran 1996, 11 and Robinson 1997, 65. On this edict, see Corcoran 1996, 173-4 and Evans Grubbs 1995, 99-101.

Barnes 1982, 54 and 62-3.

December 30, 295, eight months after the date of the edict.

Cod. Just. 5.4.17 includes a very abbreviated version of this edict, which omits everything except paragraph 5 (on the female relatives a man was prohibited from marrying) but adds the prohibition on marrying a brother's daughter (which was not reintroduced until 342; see Part II.A).

Corcoran 2000, 13. On penalties and rank, see Introduction, Part II.

On the case of Petronia Justa, see Gardner 1986b; Weaver 1991; 1997, 69-71; Gardner and Wiedemann 1991, 163-4 has translations of several of the tablets.

Fully legal manumission entailed meeting the requirements of the lexAelia Sentia of4C.E., on which see Introduction, Part II and Weaver 1990; 1991; 1997.

The peculium was a fund given to slaves (male and female) by their owners. Slaves sometimes used their peculium (perhaps supplemented by other earnings) to purchase their freedom, but since the peculium legally belonged to the owner, he or she could reclaim the peculium upon manumission - in which case it could not be converted into dowry.

The word for “married” here is daxisti, which normally is used of the man marrying (literally, “leading”) the woman. Nabere is the verb used of a woman marrying. Perhaps the status disparity, with the woman in the superior position, has influenced the lawgiver’s choice of words. See Donahue 1979, 20.

Eros was a common slave name, and this, combined with his apparent lack of a nomen (family name, indicating free status), might have tipped Hostilia off as to his slave identity. See Evans Grubbs 1993 on free women and slaves.

If a free man cohabited with someone else’s slave, her master might resent this and could prosecute him under the lex Aqailia for damage done to his slave property, or bring an action for iniaria (outrage): see Watson 1987, 54—64. For the “law of nations,” see Gaius, Institutes I.82 in Part I.B.1 above.

That is, her parents’ status will be decreased by having a slave daughter. This would change after her father’s death: cf. Sent. Paali II.xxi^a.(18).

As in Sent. Paali II.xxi^a(13). In both cases, the woman’s relationship to her partner’s owner (patrona or mother) is such that it would be shameful for her to become his slave, so the law does not apply.

Under the lex Aelia Sentia, on which see Introduction, Part II.

See Evans Grubbs 1993, 129 on the relationship of this rescript (probably written by Papinian while secretary for petitions) to the passage by Ulpian.

Apparently the rank (dignitas) of the patrona. Both these penalties are used for hamiliores in this period; see Introduction, Part II. Condemnation to public works (opas pablicam) was less severe and degrading than the mines (Millar 1984). This may mean that if the patrona were of high rank, the freedman’s offense would be considered worse than if she were herself of humble origins; therefore, he would get the more severe penalty, the mines. But it is not clear. See J. Gaudemet, “La Decision de Callixte en matiere de mariage,” in Gaudemet 1980 (article orig. pub. 1955); Evans Grubbs 1993, 132-4.

D.23.2.44, D.23.2.44.6, D.23.2.27, D.23.2.31, and D.23.2.47, all placed by the compilers in the Digest title on marriage, were taken from books on the lex Jalia et Papia by either Ulpian or Paulus. In Part II.B.5, D.25.7.1, 4, and 3 (found in the very short Digest title “On concubines”) were all originally from Ulpian’s books on the Augustan marriage laws, and D.48.5.14 pr. was from his work “On adulteries,” commenting on the Augustan adultery law. The jurists Gaius, Marcellus, and Terentius Clemens also wrote commentaries on the Augustan legislation.

I am following Treggiari 1991a, 49-51. There is some disagreement among scholars about the meaning of iniastam matrimoniam and the status of unions between those of senatorial rank and freedpeople before Marcus Aurelius.

See McGinn 1991, 362-9 on this passage.

The rest of this passage, which says that if a man wishes to have a freeborn respectable woman as a concubine, he must openly profess this in front of witnesses or risk a charge of stapram (illicit sexual relations), is generally thought to be interpolated (Treggiari 1981a, 72-3, but see McGinn 1991, 359-62). Ulpian (D.25.7.1.1) also thought that only women of such low reputation as to be immune from adultery charges could be concubines, but this was a minority opinion: see Treggiari 1981b, 72-5; cf. Wolff 1939, 94-7.

See McGinn 1991, 351—2 on this passage. He points out that giving the liberta- concubine standing equivalent to a married woman meant that the relationship could not be liable under the adultery law - but any other sexual relationship the concubine had could be. For the meaning of materfamilias, see Chapter 1, Part I.B.

See D.20.1.4 in Chapter 2, Part I.A.2 for this idea.

For the ban on senator-freedwoman marriage, see Part I.B.4; for the ban on marriage between an imperial official and a local woman, see Part I.C.3.

Thus some scholars (e.g. Wolff 1950, 305) have thought the sentence where Ulpian expresses his opinion (‘'But it is not right...”) must have been interpo­lated. But cf. n.26 above.

See McGinn 1991, 354-5 for this translation.

On the Minician law, see D. Cherry, “The Minician Law: Marriage and the Roman Citizenship,” Phoenix 44 (1990), 24-66; cf. Gardner 1997, 38-9.

See Gardner 1997, 51-2 on this passage. I am omitting a number of sentences; omitted sentences are signified by “...”

The reference to arrhae is interpolated: Corbett 1930, 8 and 18. On the use of arrhae for the purpose of marriage in late antiquity, see Chapter 2, Part II.C.

See Wells 1998, who dates the rule to 13 B.C.E. (and therefore not part of the Augustan marriage legislation discussed in Chapter 2, Part I.B) and shows how it fits with other Augustan legislation on the military.

Cf. P.Dura 30, a soldier's marriage contract dated 232, in Chapter 2, Part III.C, and P.Dura 32, attesting a soldier's divorce in 254, in Chapter 4, Part III.B. By the reign of Constantine, the soldier's right to marry was assumed in law: see Cod. Theod. 3.5.5, dated 332, in Chapter 2, Part II.B.

See Campbell 1984, 441-2 on this passage. He thinks it implies that there were some veterans whose children, though born while they were in service, also came under their potestas. Presumably these were the most privileged military, the Praetorian Guard and Urban Cohorts.

Latin text is from Inscriptiones Latinae Selectae, ed. Dessau. See ILS 9052-9 and Campbell 1994, 195-201 for other examples.

This restriction to only one wife per veteran is not otiose; some soldiers may well have formed more than one liaison during their decades of service (Wells 1998, 189-90). Cf. the famous will of the veteran Gaius Longinus Castor (BGU I.326 = FIRA III.50; translations in Campbell 1994, 228-9 and Rowlandson 1998, 188-90), who evidently preferred to have two slavewomen as concubines rather than make the choice of marrying only one of them: see J. Keenan, “The Will of Gaius Longinus Castor,” BASP 31 (1994), 101-7.

As suggested by Campbell 1994, 197 (his translation of ILS 9054).

Actually a law of Constantius only, as the place of issue (Antioch, in Syria) shows. At this time Constantius was ruling the eastern half of the Empire, Constans the west. This law is not in the Code of Justinian.

See Goody 1983,40 and 60-2. Cf. Canon 61 of the Council of Elvira (probably held in the first decade of the fourth century); Canon 2 of the Council of Neocaesarea (held between 314 and 325); also Basil of Caesarea, Canon 23 (Epistle 199, written 375) and Canon 78 (Epistle 217, written 375). Another letter of Basil (Epistle 160, written 373 or 374) sharply criticizes a presbyter of Antioch who had permitted a man to marry his wife's sister after her death. Basil gives religious arguments against such marriage, but does not mention imperial law.

43    Constans is erroneously named; he had been killed in 350, and Constantius was sole emperor. “Julian Caesar” is the future emperor (reigned 361-363). This law is not in the Code of Justinian.

44    ... uxorisve eius postremo, cuius vetitum damnatumque coniugium est... This appears to be a reference to Cod. Theod. 3.12.2 (above), forbidding marriage to a sibling's former spouse, but the Latin is somewhat obscure.

45    Text used is Corpus Scriptorum Ecclesiasticorum Latinorum (CSEL) 82.2, ed. M. Zelzer (Vienna, 1990), where the letter to Paternus is no. 58. In the older Patrologia Latina edition it is number 60. I am translating only excerpts, not the entire letter;. indicate that sentences have been omitted.

46    So suggests Matthews 1975, 143-4 (cf. also 110-11).

47    Latin text used is that of B. Dombart as revised by A. Kalb, originally published in the Teubner series (Leipzig, fourth edition, 1928-9), as found in the Loeb vol. 4 (Cambridge, MA: Harvard University Press, 1966) at p.508. I am translating only a short excerpt. A complete translation by Philip Levine is found in the Loeb volume.

48    Theodoret, Epistle VIII, in Theodoret de Cyr: Correspondence I, ed. Yvan Azema (Sources Chretiennes vol. 40, Paris, 1955), 78-81. See Clark 1993, 43-4. Like Ambrose, Theodoret assumes that his correspondents are expecting imperial dispensation for their illegal marriages.

49    Though this law appears in the Code of Justinian in the name of the eastern emperor Zeno, at the time the law was enacted he was in flight from Constantinople because of a revolt by Basiliscus, brother of Zeno's mother-in­law Verina, wife of the previous emperor Leo (see Jones 1964, 224-5). This is apparently a law of Basiliscus (see Krueger's note at Cod. Just. 5.5.8). The Code of Justinian does contain two other laws against incestuous marriage from Zeno's troubled reign (474-491): Cod. 5.8.2 and 5.5.9, both of which are particularly concerned with uncle-niece marriage (Cod. Just. 5.5.9 also mentions marriage with a brother's former wife).

50    Cod. Theod. 4.6.3, the law translated here, was originally the third law under the title “On natural children and their mothers” (de naturalibus filiis et matribus eorum). The first is now lost (for its possible citation by later emperors, see Evans Grubbs 1995, 296-7). Of the second, only the final sentences remain (translated in Evans Grubbs 1995, 284). Like the final sentence of Cod. Theod. 4.6.3, the second law had a postscript dealing with the case of the “son of Liciniannus,” on whom see n.63 below.

51    The number of senators was greatly expanded under Constantine and later emperors (especially after the creation of a second Senate in Constantinople). Perfectissimi held high equestrian rank, and were eligible for many posts within the late Roman administration, including some governorships. See Jones 1964, 525-30.

52    Duumviri and quinquennales were the chief magistrates of municipalities. Flamines held local (pagan) priesthoods, and provincial priests (sacerdotes provinicae) were responsible for maintenance of the imperial cult (still extant under Christian emperors). See Jones 1964, 724-5 and 763-4.

Infamia (legal infamy) was frequently used as a penalty in the fourth and fifth centuries, and differed somewhat from the classical infamia. It primarily entailed exclusion from public office and honors. See A.H. J. Greenidge, Infamia: Its Place in Roman Public and Private Law (Oxford, 1894), 144—70. Peregrine status would entail losing Roman citizenship and the privileges that accompanied it, including the right to make a will. For men of rank both these penalties would have been significant: they would be reduced to the low status of the women they had wished to marry (Evans Grubbs 1995, 291—2).

The word for freedwoman is liberta, implying (at least in classical Latin) one's own former slavewoman, not just a former slavewoman in general (who would be called a libertina). On (Junian) Latin status, see Introduction, Part II and cf. below at n.96 and n.120.

Nataralis, that is, illegitimate.

That is, other children he had by a legal wife.

The word translated “wife” here and below is axor, which is usually used to describe a legitimate wife. In this case, such women are not considered wives by law, but they are by the men who have “married” and had children by them.

That is, to the man or his legitimate kin, or to the imperial fisc (treasury) if he is dead and has no legitimate kin.

The imperial treasury, which confiscated illegal legacies.

Perhaps someone who claims to be the man's legitimate child, and then hands the property over to the illegitimate children or their mother.

Adopting the translation of McGinn 1999, 58.

That is, when the property is recovered from the children or “wives” (after torture, presumably), they (or those who have colluded on their behalf?) shall be forced to repay four times the original amount.

The identity of this “son of Licinnianus” is unclear. He may have been an (other­wise unattested) illegitimate son of Constantine's former co-emperor, Licinius (defeated by Constantine in 324), or he could have been the illegitimate son of a local Carthaginian notable, whose case was covered by the law (and perhaps even prompted its passage). See Evans Grubbs 1995, 285-6. On the penalty, see Millar 1984, 144-5.

Found (with slight changes) at Cod. Just. 5.27.1.

Cod. Theod. 9.7.1 (326), on which see Evans Grubbs 1995, 205-8. For other laws regarding tavern-keepers, see ibid., 290. For the women in Cod. Theod. 4.6.3 as “analogues” for prostitutes in late antiquity, see McGinn 1997; 1999.

In 397, the western emperor Honorius reverted to Constantine's policy (Cod. Theod. 4.6.5), but a law of Honorius' brother Arcadius (Cod. Theod. 4.6.6) restored Valentinian I's ruling for the eastern half of the Empire. Then a western law of Valentinian III reduced the amount left to illegitimate children to one- eighth, apparently whether or not there were other heirs (4.6.7; see Part II.B.3 below; Beaucamp 1990, 198). In a law of 428 (Cod. Theod. 4.6.8), the eastern emperor Theodosius II returned to Valentinian I's policy, which became valid throughout the Empire upon the Codes publication in 438. In later laws (not received in the west), Theodosius allowed illegitimate children to inherit in full from their fathers, provided they became decurions (town councilors) if male, or married decurions if female (Evans Grubbs 1995, 302-4). At least one law under Cod. Theod. 4.6 appears to be missing; see A. Arjava, “Ein verschollenes Gesetz des Codex Theodosianus über uneheliche Kinder (CTh 4,6,7a),” ZSSR.RA 115 (1998), 414-18.

See McGinn 1997, 78-86 for discussion of vel humilis vel abiecta.

On this (now lost) law of Constantine, see Part II.B.2 below.

vv.cc. = viri clarissimi (men of senatorial status). The first two sentences of this law are found (with an additional phrase) at Cod. Just. 1.14.9. There is an abbreviated version of paragraphs (2) and (3) at Cod. Just. 5.5.7. A few, non­essential phrases have been omitted in the translation.

“A man is not able to have a concubine at the time that he has a wife. Therefore, a concubine is distinguished from a wife by choice alone” (Sent. Pauli II.xx.1). It is not clear whether this passage pre-dates or post-dates the Constantinian law; they are roughly contemporary.

See Evans Grubbs 1995, 298-300. Seventy-five years later, Augustine, bishop of the north African city of Hippo, had to tell his congregation they could not have both a wife and a concubine: Sermo 224.3 in Patrologia Latina 38, col. 1094-5; on which see Shaw 1987b, 16; cf. Sermo 392.2 in Patrologia Latina 39, col. 1710, and see Part II.B.2 for Augustine on concubines. (But note that Augustine’s congregation seems to have considered slavewomen who were sexu­ally exploited by their masters to be “concubines,” whereas under the Roman legal definition such relationships, while certainly not illegal, were not really concubinatus.)

The rest of the law, here omitted, says that disposition of pre-nuptial gifts and dowry are covered by the same policy, and that the offer of retroactive legitima­tion is good only for those who marry their concubines now.

Latin text used is that of P. Knoll, originally published in 1909 in the Teubner series, as found in the Loeb vol. 1 of the Confessions (Cambridge, MA: Harvard University Press, 1912) at pp.148-50 and 324-5.

“You” is God; the Confessions are addressed to God throughout.

Latin text used is CSEL 41 (Vienna, 1900), ed. J. Zycha, at pp. 193-4.

That is, knowing that he does not have marital intent toward her and will even­tually dismiss her and marry another.

The law’s manuscript date is 319, but Seeck 1919, 56 re-dates to 318. It is also at Cod. Just. 5.5.3 (with some changes). The addressee, Patroclus, is unknown.

The law first inaccurately uses the term conabia, meaning legal marriages, to describe the free-slave relationship, but then correctly calls it contubernium (see Part I.B). Cf. the use of uxor in Cod. Theod. 4.6.3 and nupta in Cod. Theod. 9.9.1, both meaning “wife,” to describe non-marital relationships.

That is, employees of the “very powerful house” to which he has fled.

By the imperial treasury, whereas rural properties go to his town or heirs. In Justinian’s version (Cod. Just. 5.5.3), his city gets all his property.

The rest of the law, omitted here, dealt with penalties for the landowner to whom the curialis fled and his overseers and stewards, if they knew about the relationship. See Evans Grubbs 1995, 278-9 for translation and discussion.

Addressed to Junius Bassus, praetorian prefect, Not found in Cod. Just. Only part of the law is translated here; see Evans Grubbs 1995, 280-2 for the rest.

The rest of the law, omitted here, said that “natural” children who were born from a free mother (whether freed or freeborn), could inherit up to one-eighth of their father's estate. Though in the names of both reigning emperors, it was a law of Valentinian III only. It is not in the Code of Justinian.

Cod. Just. 5.4.21, also to Bassus, undated (not in the Theodosian Code). The identity of recipient and similarity of subject matter make it likely that these were part of the same law originally.

The sixth-century emperor Justinian required that the highest classes have written evidence of a marriage: Arjava 1996, 206. This may have been because, after many of the prohibitions on marriage between those of different status had been abolished or mitigated (see below), it was considered more important to have external documentation that a couple intended marriage rather than concu­binage. See Wolff 1939, 91-2 and 98-9.

Latin text is found in CSEL 32, Part 1, ed. C. Schenkl (Vienna, 1897).

Latin text is found in CSEL 54, ed. I. Hilberg (Vienna, 1909) at p. 688.

The stola was the dress of the respectable Roman matron, which distinguished her from prostitutes and disreputable women; see McGinn 1998, 154-5. An imperial rescript, by granting the man the right to marry legally an otherwise ineligible woman, would have thereby granted her respectability.

Paul, 1 Corinthians 7 (‘'better to marry than to burn”).

See J.N.D. Kelly, Jerome: His Life, Writings, and Controversies (New York: Harper & Row, 1975), 213-14 for the background. Among Jerome's targets on this issue was Ambrose, whom Jerome detested.

Leo, Epistle 167.4-5, written 458 or 459. Text in Patrologia Latina 54, at col. 1204-5. An English translation of the whole letter by E. Hunt is found in Pope St. Leo the Great: Letters (Fathers of the Church vol. 34: New York, 1957), 289-97. See Crouzel 1971, 304-12; Evans Grubbs 1995, 315-16.

This refers to an official procedure by which a person who had been held in slavery would be legally recognized as not only free, but freeborn, and granted ingenuitas. Cf. Cod. Theod. 4.8.5 and 6 for legislation regarding claims for freedom and free birth.

D. Hughes, “From Brideprice to Dowry in Mediterranean Europe,” in The Marriage Bargain: Women and Dowries in European History, ed. M.A. Kaplan (New York and Binghamton: Herrington Park Press, 1985), 13-58, suggests that Majorian's law requiring dowry for a legal marriage influenced his contemporary Pope Leo. But Leo does not explicitly mention dowry as a necessary accompani­ment of marriage. It seems more likely that if Leo was influenced by a Roman law, it was Cod. Theod. 4.6.7 of Valentinian III, denying legitimacy to children born “without honorable celebration of matrimony,” see above.

This law has been attributed to both Constantine and to Licinius, his co-ruler and rival in the east. It is better to take it as a law of Constantine, one of many he enacted on mixed-status relationships: see Evans Grubbs 1995, 264-5. Decoctio natalium, a unique expression. See Evans Grubbs 1995, 266.

They would be Junian Latins. Cf. n.54 above and n.120 below.

This is part of a much longer law dealing with matters of inheritance and debt, which was divided up and put under different titles by the Code's compilers. Cod. Theod. 8.16.1, repealing the Augustan penalties on celibacy (Chapter 2, Part II.A), is part of the same law. See Evans Grubbs 1995, 119-20.

Cod. Theod. 4.12.2 of Constantine, dated 317, required three warnings in the presence of seven Roman citizens (the law itself is lost but the “Interpretation,” dating to the late fifth-early sixth century, supplies the content). Cod. Theod. 4.12.4 (Constantine, 331) rescinded the need for three warnings, but 4.12.5 (Julian, 362) reinstated it. Cod. Theod. 4.12.7 (Arcadius, 398) again required three warnings before a woman could be enslaved. This must have caused some confusion. See Evans Grubbs 1995, 265-9; cf. Beaucamp 1990, 185-7.

99    Secundus, the addressee of the law, was praetorian prefect of the east, and so would not receive a law enacted at Trier in the west. Seeck 1919, 109 suggests the place-name Thyatira (in Asia Minor) was corrupted in the manuscripts to the more famous Trier. This is then a law of the eastern emperor Valens.

100  n.p. = nobilis puer (‘'noble boy”). Gratian, the son of Valentinian by his first marriage, was not designated emperor until 367, after the apparent date of this law, so ascription to him as “Augustus” in the law's heading is apparently incorrect. He was seven years old at the time of this law.

101  Text of the Consultatio Veteris Cuiusdam lurisconsulti is found in FIRA II, pp. 593-613. It evidently dates to the fifth century (Robinson 1997, 65-6).

102  The words “among after matters and at the (same) place” (inter cetera et ad locum) indicate that this was excerpted from a longer law.

103  “... et nunc contemnentes dominum minoris aetatis servitutis iugum conantur effugere...” Possibly it is the dominus (master) who is a minor (as A. Arjava has suggested to me) rather than the woman. Cf. Cod. Just. 5.5.4 (Part II.D) for leniency toward those who contracted illegal unions in their youth.

104  This was a law of the western emperor Valentinian, brother of Valens (note that it was issued from Milan, the seat of imperial government in the west at this time). This is then a western counterpart to Cod. Theod. 4.12.6.

105  Cod. Theod. 10.20.3, dated 365; Cod. Theod. 10.20.10, dated 380; but cf. Cod. Theod. 12.1.179, which says it is “confirming the authority of the s.c. Claudianum” and orders that children born from freeborn mothers of curial families are to serve as curiales in their mother's municipality.

106  Cf. Cod. Just. 7.20.1 in Part I.B.3 for this situation. A married woman who had sexual relations with someone other than her husband could be prosecuted for adultery. Unmarried women (virgins, widows, or divorcees) who engaged in sexual relations could be prosecuted for stuprum. The penalties for both were severe, involving exile and confiscation of property and in late antiquity, some­times even the death penalty. See Evans Grubbs 1995, 201-21.

107  The capital penalty would be either death or exile with confiscation of property (in other words, the penalty for stuprum; see n.106 above).

108  That is, the slave. The word used, verbero, is very rare in Roman law, but found in early Latin literature. See Evans Grubbs 1993, 145-7 on the unusual language of this law.

109  Nupta means married woman, but according to the law this cannot be a legal marriage. Cf. the use of uxor (wife) in Cod. Theod. 4.6.3 and conubium in Cod. Theod. 12.1.6 above. The word for “lover,” amatus (more literally, “beloved”), is a literary, not legal, term (cf. n.108 above).

110  That is, if they are her children from another, legal marriage (cf. the mention of legitimate children in Cod. Theod. 4.6.3, Part II.B.1).

111  In Roman inheritance law, a woman's intestate heirs would be her agnate rela­tives (those on her father's side), first of all her brothers. Not until 178 C.E. could a woman's own children (legitimate and illegitimate) inherit from her upon intestacy; see Gardner 1986a, 198-200 and Chapter 5, Introduction. Here the illegitimate children by the slave man are still preferred to her agnates, if she and her lover are both dead. The translation in Evans Grubbs 1995, 273, says “their brothers,” the Latin text does not have a possessive pronoun, but the sense must be “her.” Surely illegitimate children would not be preferred to their own, legitimate brothers.

An official in the civil service. For encouragement of slave informers, cf. Cod. Theod. 9.24.1 on abduction marriage in Part II.C.

The law's date is uncertain; the manuscript date is 326, but Seeck 1919, 64, re-dated it to 329. See Evans Grubbs 1995, 51-2 on problems with dating Constantinian legislation. An abridged version appears at Cod. Just. 9.11.1. There are lacunae in the manuscripts. I use Mommsen's suggested reconstruc­tion. I have also omitted the last sentence of paragraph (1).

The word translated as “children” is liberi, which can also mean “free people.” The lawmaker probably intended a play on words.

The restrictions on marriage between men of rank and low-status women were removed [Justinian Novel 117.6; see Beaucamp 1990, 208]. On the other hand, the union of a decurion with another landowner's slave was preserved among the marriage prohibitions in the Code of Justinian [Cod. Just. 5.5.3] However, other fourth-century laws that called for the enslavement of free women married to imperial workers were retained: Cod. Theod. 10.2.3 is at Cod. Just. 11.8.3, and Cod. Theod. 10.20.11 is at Cod. Just. 11.8.7 (cf. n.105 above). See Beaucamp 1990, 194-5.

Constantine is mistaken, at least as far as classical law goes: women's testimony was always accepted, and women could also bring legal actions in matters concerning themselves or their family. See Chapter 1, Part V.

That is, between the abductor and the girl's parents.

Latin status at this period was a sort of halfway-state between slavery and full Roman citizenship. See Part II.B.4, n.96.

That is, if they accepted the abduction marriage and did not bring the abductor to court. The Latin word is parentes, which could mean “relatives” more generally; see Chapter 2, Part II.B, n.47 and n.125 below.

Not in the Code of Justinian (cf. Cod. Just. 7.13.3 for one sentence), because Justinian substantially modified the law on raptus; see Evans Grubbs 1989, 77-9. Aquileia is in Italy, on the north Adriatic coast.

Imperial law starting with Constantius also repressed the abduction of Christian women who had dedicated themselves to God: see Evans Grubbs 2001.

This law appears also at Cod. Just. 5.7.1, with some changes. Other parts of the law are probably Cod. Theod. 3.6.1, and 8.15.6; probably also Cod. Theod. 3.5.10-11 on return of arrhae after a broken betrothal (Chapter 2, Part II.C). Cod. Theod. 3.6.1 says that arrhae do not have to be returned if the betrothal was the result of pressure from a provincial official.

The Latin word is parentes; see n.121 above.

Fatherless women under a guardian; see Chapter 1, Part II.C.

I follow the translation of Pharr 1952, 73 of the Latin quorum utilitas agitur, referring to the women who are being coerced into marriage.

The Cod. Just. version adds “though he will not have achieved the prohibited marriage,” implying that the union was not iustum matrimoniam. See Gaudemet 1949 (1980), 85-6.

The Latin word, iadex, which literally means “judge,” is used in later Roman law to designate an imperial official with judicial powers - more specifically, the governor of a province.

The vicarias was an imperial official in charge of a diocese, a group of provinces. In the administrative hierarchy, he ranked below the praetorian prefect (the highest administrative official apart from the emperor himself) and above a provincial governor. See Jones 1964, 373-5. The Christian church adopted this imperial terminology for its own (later) vicars and dioceses.

Though in the name of all three reigning emperors, the place of issue (in northern Greece) indicates that this is a law of Theodosius.

Adnotatio, a document attached to a rescript particularly in cases where a deci­sion was being made contrary to the usual policy, in which the emperor might give his reasons for making an exception. See Corcoran 1996, 57-8.

There is a problem with the day, since Theodorus was no longer praetorian prefect on January 23. The law was probably issued earlier in January.

Though in the names of both eastern and western emperors, Cod. Theod.

3.10.1             is a law of the western emperor Honorius, as the place of issue (Ravenna, by this time the seat of the western emperor) indicates. This law appears with some changes (e.g., no mention of cousin marriage) at Cod. Just. 5.8.1. Cod. Just. 5.4.20 on consent to marriage (see Chapter 2, Part II.B) may be part of the law too.

The law first uses the word barbara to describe the barbarian wife, but then switches to the term gentiles at the end of the first sentence and in the second sentence.

Though in the name of both reigning emperors, the addressee of the law, Count Theodosius (a western official, father of the future emperor Theodosius I), and the circumstances in which it was probably enacted (a revolt in the western province of Mauretania; see Sivan 1996) indicate it is a law of Valentinian. The date is unclear; it could belong to any of the years in which the emperors held the consulship jointly. The law is not in the Cod. Just.

Under Augustus' adultery law, a woman's husband and father had first priority in bringing adultery charges, but if neither did so within sixty days of the act of adultery, then the opportunity to prosecute was thrown open to any citizen male (women did not have the right to bring adultery charges). Constantine changed this in a law of 326 (Cod. Theod. 9.7.2), by limiting the right to bring a prosecution against a woman to her husband or male relatives (men who committed adultery with married women could still be prosecuted by unrelated parties, however). See Evans Grubbs 1995, 208-14.

139  v.c. = vir clarissimus, a man of senatorial rank. Though in the names of all three reigning emperors, the law's place of issue (Thessalonika, in northern Greece) and its addressee (Cynegius was praetorian prefect of the east) indicate that this is a law of Theodosius. It is found also at Cod. Just.1.9.6.

140  A passage in a papyrus from the “Babatha archive” (P.Yadin 26, lines 13-14) has been taken by some scholars to mean that Babatha's husband had two wives simultaneously: see Lewis 1989, 22-4. But this interpretation has been questioned, and it may mean only that both women were married to the same man at different times: see Katzoff 1995b. In any case, the Babatha archive involves a Jewish community 250 years earlier than the date of this law.

141  Valentinian II died in May 392, so the Codes ascription to him is erroneous; it should be Honorius (Linder 1987, 191). In any case, the place of promulgation shows this is a law of Theodosius, the senior emperor (and father of both Arcadius and Honorius). This law is not found in the Theodosian Code.

142   For the events of these years, see Honoré 1998, 179-87; Chapter 5, n.14.

143  Cf. Consultatio Veteris Cuiusdam Iurisconsulti IX.7 in Part II.B.4 above, which apparently forbade free women who had contracted contubernia with slaves when they were minors to leave the relationship.

144  No consulship is given, so this law cannot be assigned to a particular year; it dates from between August 25, 383, when Valentinian acceded to the throne and May 15, 392, when he died. Seeck 1919, 127, dates it to 392, connecting it with Cod. Just. 5.10.1, on widows who remarry, though that law is dated 15 March, 392 and is addressed to Tatian, Theodosius' praetorian prefect in the east (see Chapter 5, Part I.B). Gaudemet 1949 [1980], 86 dates it to 387-93 and says it is not possible to know to which emperor to attribute it. But Honoré 1998, 186 dates the law to 389 or 392 and attributes it to Valentinian II. He identifies Andromachus, here Count of the Privy Purse, with the praeto­rian prefect of Gaul in 401.

4    DIVORCE AND ITS CONSEQUENCES

1       In addition to D.24.2, other passages in the Digest relevant to divorce are found in D.23.2 (the title on marriage), D.24.1 (on gifts between spouses); D.43.30 (on exhibiting of children, in regard to a father's right to break up his child's marriage; see Part I.E.1); D.25.3 (on acknowledgment of children born to pregnant divorcees; see Part I.E.2); and D.50.16 (definitions of terms). The Digest excerpts come from a range of juristic writings, particularly (as noted below) commentaries on the Praetor's Edict or on Augustus' marriage laws.

2       The last two sentences of this passage, which is from one of Paulus' books on the Praetor's Edict, are repeated at D.50.17.48.

name=bookmark809>3       See Horsfall 1983, 92-4. Under the Augustan legislation, the couple's failure to have children would mean the husband could inherit only 10 per cent of his wife's estate; see Chapter 2, Part I.B. The date of “Turia's” death is not known; she may have died before 18 B.C.E. when the Augustan law was passed.

An extreme case of ambiguity surrounding the ending of a marriage is that of the emperor Claudius' wife Messalina, who celebrated a very public wedding to Gaius Silius without actually divorcing Claudius (Tacitus, Annales XI.27-30). Claudius' advisors assume he is divorced, but there was no evidence of it apart from Messalina's new “marriage;” see Gardner 1986a, 85; Treggiari 1991a, 458. For an elaborate juristic working-out of the possible scenarios for a madwoman wife, see Ulpian at D.24.3.22.7-10, with Gardner 1993, 176-7.

See Treggiari 1991a, 350-3. The passage continues (Rules of Ulpian 6.13) that if the husband has moral defects, he has to return the dowry immediately (for serious defects) or within six months (for “lighter” ones). As Treggiari (1991a, 52) remarks, “... the immorality threshold was higher for husbands...”

In this passage . indicate that I have omitted phrases in my translation. Cf. the question of a daughter's consent to marriage - in the absence of outright rejec­tion “consent” was assumed: see D.23.1.12 in Chapter 2, Part I.C.3.

Ulpian, at D.24.3.22.5-6, even suggests that a daughter would be so unwilling for her father to get her dowry back that she would go into hiding or “oppose her father modestly (verecunde) through her absence.”

The emperor's reply was written below (subscribed) the petition, and would then have been posted in a public place in Sirmium (in Serbia), which was the site of an imperial residence in the late third and early fourth centuries.

On the lex Aelia Sentia, see Introduction, Part II, “Roman social structure and the legal system.” Female slaveowners were not similarly encouraged to marry their former slaves: see Chapter 3, Part I.B.3.

See Gardner 1986a, 86-7; cf. D.38.11.1.1 (Ulpian). From the extant juristic commentary, this appears to have been the case whether or not she was freed explicitly for the purpose of marriage. Compare the situation in late Roman law of women who unjustly repudiated their husbands, who were forbidden to remarry ever or within a five-year period: see Part II and Wolff 1950.

Much of this passage (and much of D.24.2.11.2, following it), which are from the third book of Ulpian's commentaries on the Augustan marriage laws, has in the past been suspected of post-classical interpolation. See Wolff 1950.

Those captured by the enemy became slaves, and therefore had no right of marriage. Captives who returned to Roman territory regained their former posi­tion by the right of postliminium, but their marriage was not automatically resumed unless their former spouse consented. The marriage of a freedwoman to her patron was an exception to this. See Buckland 1908, 291-8.

A fideicommissum was a trust made by the deceased. If someone had been bequeathed a slavewoman by means of a fideicommissum to manumit her, he would have the rights of patron over her, but did not have the right to keep her in marriage against her will as her original owner would have had.

See D. Kleiner, Roman Imperial Funerary Altars with Portraits (Rome, 1987), #23 for the altar and inscriptions.

The Latin word is stigmata, which can refer also to branding or tattooing (of a criminal or a runaway slave). For curses in antiquity, see J.G. Gager, Curse Tablets and Binding Spells from the Ancient World (Oxford and New York: Oxford University Press, 1992, esp. 175-99). For further discussion of this inscription, see Evans Grubbs, 2002.

The final line of the inscription, omitted here, is difficult to read. Henzen in CIL VI.20905 read it as “and the same marks of infamy to Hymnus, those who followed Zosimus.” Hymnus was presumably the slave whom Acte took with her when she ran away from Euphrosynus.

Modern scholars are not in complete agreement about the situation of adult children under paternal power who wished to divorce. Corbett 1930, 242-3 thought that both a son and a daughter in potestate could divorce without their paterfamilias’ consent, but Gardner 1986a, 11 and 86, disagrees; and cf. Gardner 1993, 177 and 229, n.51. For a more nuanced interpretation, see Treggiari 1991a, 445-6, who notes that “[a]t the very least, [the legal texts] show... that people could regard daughters in power as agents in their own divorces.”

This refers to the praetor's interdict, given to a man who demands that someone under his potestas be produced: see D.43.30 pr.-1. This passage is from Book 71 of Ulpian's commentaries on the Praetor's Edict.

Legitimate children who were left out of their father's will had the right to bring an action challenging the will on the grounds that their father had been “undutiful” (inofficiosus): see Chapter 1, n.84 and Chapter 5, n.23. The phrase “slipped into the disgrace of disinheritance” (ad exheredationis notam prolapsum) implies that Faustina's father “fell down” in his duty to her.

Nicomedia, where Diocletian's imperial residence was located, is in north­western Turkey (modern Izmit). On the “posting” of laws, see the Introduction, Part I.A.

Tiberius was not at that time actually under Augustus' patria potestas, so Augustus did not have any legal right to interfere in his marriage. But it would have been difficult for Tiberius to refuse, given the political situation. Some years later, in 4 C.E., Augustus adopted Tiberius, which did give him patria potestas over Tiberius. By then Tiberius and Julia were divorced, Julia having been banished by her father in 2 B.C.E. for sexual misconduct. Augustus himself sent the repudium to Julia in Tiberius' name (Suetonius, Tiberius 11).

A member of the equestrian order, on which see Introduction, Part II.

That is, earlier emperors. Diocletian's staff had checked to see if there were previous imperial decisions relevant to Caelestina's case.

The date of the s.c. Plancianum is not known. Talbert 1984 attributes it to the reign of Hadrian (his senatusconsultum #85, 445), but a Trajanic date is also possible. Its relationship to the section of the Praetor's Edict which called for inspection of a widow who claimed to be pregnant by her deceased husband is not clear. I believe that the Senate's decree on pregnant divorcees was passed under Trajan, but was influenced by the much earlier policy on pregnant widows found in the Praetor's Edict. See further Chapter 5, Part III.A. Note that this and the following passages from Ulpian (D.25.3.1.6 and 25.4.1 pr.) are from his books of commentaries on the Praetor's Edict.

I have omitted a few sentences, indicated by “.”

That is, she abandoned the newborn infant, a not uncommon practice in antiq­uity: see Harris 1994. Cf. BGU IV.1104 in Chapter 5, Part III.C, involving the possibility of exposure of a newborn by a pregnant widow; such cases suggest that exposure was most likely in situations where the marriage was ended by the husband's death or by divorce.

See Gardner 1986a, 158-9, on this case. Gardner states that the fetus was not considered a human being, and therefore aborting it was not illegal. The real issue in the case cited by the jurists was the right of the paterfamilias to deter­mine the fate of the child, not the question of the fetus' own status.

See Evans Grubbs 1995, 257-9, drawing on E. Volterra and M. Sargenti. Maliercalarias, an example of non-legal terminology.

That is, she will be praised for having revealed her husband's crimes. Ad acacalam capitis, another example of non-legal colloquial language. Conciliatrix, that is, a procuress (another example of non-legal language).

The day of issuing is missing. This law is not found in the Code of Jastinian, which adopted the milder divorce regulations of Theodosius II (see below). Unlike deportatio, the more severe form of exile, relegatio did not involve loss of citizenship or the right to make a will: Garnsey 1970, 111-17. The wife who divorces her husband in this law is sentenced to deportatio; the adulterous wife in Augustus' law was sentenced to relegatio. (By this period, the adulterous wife might even be sentenced to death: Evans Grubbs 1995, 216-21.)

Cod. Just. 5.17.7, a law of 337 (not extant in the Theodosian Code), sets forth a more lenient policy for wives of soldiers who have not heard from their husbands for at least five years: they can get a divorce and receive back their dowry, and they may remarry. The law is attributed to Constantine but was apparently enacted after his death: see Evans Grubbs 1995, 232, and Barnes 1982, 87 n.172 on who was responsible for issuing this law.

Cod. Theod. 3.13.2 (363), a law of Julian, refers to the retentiones (withholdings) made from a divorced wife's dowry because of fault on her part or the presence of children (Part I.C). This may have been part of Julian's divorce law, the rest of which is lost.

The work is the Liber Qaaestionam Veteris et Novi Testamenti (‘'Book of Questions on the Old and New Testament”), question 115, chapter 12, in Corpas Scriptoram Ecclesiasticoram Latinoram 50, ed. A. Souter (Vienna, 1908), 322. On Ambrosiaster, see W.G. Rusch, The Later Latin Fathers (London: Duckworth, 1977), 65-7 and D.G. Hunter, “The Paradise of Patriarchy: Ambrosiaster on Woman as (Not) God's Image,” Joarnal of Theological Stadies 43 (1992).

Postliminium, the right to return from exile (or captivity outside the Empire) and resume one's position and rights as a Roman citizen. See n.13.

Stapram, which denoted illicit sex, including adultery (sex between a married woman and someone other than her husband) and sex with or by an unmarried woman (virgin, widow, or divorcee) of respectable status. According to this law, a man whose wife had divorced him for only “middling faults” could prosecute her for stapram if she remarried after the divorce.

The one-year waiting period for remarriage is the same as that imposed on widows in 381 by Theodosius I (Cod. Theod. 3.8.1) See further Chapter 5, Part I. A on legally imposed delays on remarriage of widows. Only in late law is such a delay imposed on divorced women, but it was no doubt due to the same concern about paternity, as well as about female propriety. See Beaucamp 1990, 227-9. On withholdings (retentiones) from the dowry, see Part I.C. and n.37 above.

Though the law appears in the name of the eastern emperor, Theodosius II, as well as the western emperors Honorius and Constantius, the fact that it was issued from Ravenna, the imperial seat in the west since 402, indicates that it is a law of Honorius and Constantins only. Constantins (III) was married to Honorius' sister, Galla Placidia, and was co-emperor for a few months in 421; see Matthews 1975, 377-9. Cod. Just. 9.9.34 is an abridged version of this law. See Honoré 1998 on the development of different consistories (and legal approaches) in the two halves of the Empire in the fifth century.

In another law two months later (Novel 14.4, in Chapter 2, Part II.C), Theodosius said that if a marriage “has been dissolved by repadiam by the woman's fault,” the husband was to get back all of the pre-nuptial gifts he had given her, even if they had been converted into dowry. Since the fate of pre­nuptial gifts after divorce had not been regulated in classical law, it was necessary for Theodosius II to add this provision to his otherwise “classical” divorce law. See Chapter 2, Part II.C on pre-nuptial gifts.

Nir clarissimas, of senatorial status; see Chapter 1, Part VI.A. The first sentence of this law is repeated at the beginning of Cod. Just. 5.17.8 of 449.

Intentata, apparently meaning that she is able to show justification for the divorce.

Any child born in that interval will be assumed to have been conceived from her first husband; see n.41 above.

It was routine practice to subject slaves to torture in order to obtain their testi­mony, on the assumption that they would not otherwise tell the truth: see Bradley 1994, 165-70. Though normally slaves could not testify against their owners, the Augustan adultery law allowed the torture of the slaves belonging to a man or woman accused of adultery (but not of stapram): D.48.18.17 pr. (Papinian); D.48.5.28.6 (Ulpian); Cod. Just. 9.41.1 (196); 9.9.3 (213); Cod. Theod. 9.7.4 (385). Treason was so serious a crime that slaves could even bring an accusation against their owner, something they were generally forbidden to do; thus they could also be tortured to extract evidence of their owner's treason. See further O. Robinson, “Slaves and the Criminal Law,” ZSSR.RA 98 (1981), 213-54. In late antiquity, liability to torture was extended to include lowborn free people as well as slaves; see Harries 1999, 118-34. Cf. also Cod. Theod. 4.6.3 (336) in Chapter 3, Part II.B.1.

The Latin text is in Corpas Scriptoram Ecclesiasticoram Latinoram (CSEL), vol. 55, part II, ed. I. Hilberg (Vienna, 1912), 37-49 (translated passage is at pp. 38-40). A translation of ilie entire Epittle 77 ran be foil ml in St. Jerome: Select Letters, trans. F.A. Wright (Cambridge, MA: Loeb Classical Library, 1933), 309-37.

See Barnish 1988, 145, who finds that Fabiola is the only attested divorce in Prosopography of the Later Roman Empire vols. I and II. This does not mean that divorce was uncommon in other segments of society, however.

Matthew 5:31-32 says a man may only divorce his wife for her adultery, and if she remarries, she and her second husband are committing adultery (cf. Matthew 19:9). The other Gospels which cite this teaching of Jesus (Mark 10:2-12; Luke 16:18) do not mention the exception for adultery, but condemn all divorce and remarriage aOter divorce, as does Paul in 1 Corinthians 7:10 (cf. Romans 7:2-3). See Evans Grubbs 1995, 243-4.

Paul, 1 Corinthians 6:16.

The view of the famous jurist Papinian (early third century) is contrrited with that of the apostle Paul, whose views on marriage are found in his first letter to the Corinthians.

Paul, 1 Corinthians 7:8-9.

Cf. Paul, Romans 7:22-3.

1 Timothy 5:14-15.

Jerome's views on the superiority of virginity over marriage are most forcefully expressed in his treatise Against Jovinian; cf. also his Epistle 22 to the young virgin Eustochium. Several years before he wrote his eulogy of Fabiola, Jerome had condemned the remarriage of a woman who had left her dissolute husband, as long as her husband was still alive: see Epistle 55.4. For Jerome's views on divorce see Crouzel 1971, 284-303.

This attitude was codified in a law of Constantine (Cod. Theod. 9.7.1, 326) that defined the type of woman who could be accused of adultery (as being respectable enough to have to meet the law's sexual standards): female tavern­owners were liable to prosecution for adultery, but the women who served wine to customers were not, and therefore a man could have sex with them with impunity. See Evans Grubbs 1995, 205-8; McGinn 1997, 89-94.

See Clark 1993, 38-41; Evans Grubbs 1995, 242-53. Crouzel 1971 collects and discusses the relevant passages on divorce from Christian writers (Latin and Greek), in French translation.

On post-476 legislation, see Beaucamp 1990, 174-7; cf. 221-38; Rabello 1981, 87-9; Arjava 1996, 181-3.

For an up-to-date list of divorce documents from Egypt and the Near East, see Instone Brewer at www.Instone.Brewer.com. Older lists are in Montevecchi 1936, 20 and 1988, 206. I have also consulted the relevant volumes of the Berichtigungsliste der griechischen Papyruskunden aus Aegypten (BL) for revised read­ings and references in later publications.

Originally edited by W. Schubart and published in Aegyptische Urkunden aus den Königlichen Museen zu Berlin, Griechische Urkunden IV (Berlin, 1912). I use the Greek text in Corpus Papyrorum Judaicarum, vol. II, ed. V.A. Tcherikover and A. Fuks (Cambridge, MA: Harvard University Press, 1960), 10-12 (= CPJ II.144). See Tcherikover and Fuks (see n.63), 1-5; Modrzejewski 1961 and 1995. However, this interpretation has been disputed: see Rabello 1981, 97. Tcherikover and Fuks (n.7 at CPJ II.144) suggest it may have been a “mixed marriage” between a Jewish woman and a non-Jew, since the husband Hermogenes may have belonged to a deme and thus had Alexandrian citizen­ship, which Jews in Alexandria generally did not (see Delia 1991, 26-7). But see n.66 below.

For Jewish divorce rules in this period, see Rabello 1981 and D.J. Brewer, “Jewish Women Divorcing their Husbands in Early Judaism: The Background to Papyrus P.Se'elim 13,” Harvard Theological Review 92 (1999), 349-57. No Jewish divorce documents in Greek have been found in Judaea or Arabia (unlike marriage contracts in Greek; see Chapter 2, Part III.B). P.Mur. 19, a deed of divorce in Aramaic, is translated in Archer 1990, 297. There has been much controversy over an Aramaic document from the Judaean desert (P.Se'elim 13), which has been variously described as a receipt for return of ketubah and renunci­ation of further claims by the wife to her husband (who was divorcing her), or a divorce declaration by the wife herself, which would be against Jewish law. For the latter interpretation, see T Ilan, “Notes and Observations on a Newly Published Divorce Bill from the Judaean Desert,” Harvard Theological Review (HTR) 89.2 (1996), 195-202; her arguments are challenged by A. Schremer in HTR 91 (1998), 193-202, and accepted with some modification by Brewer 1999. The final publication of P.Se’elim 13 (Cotton and Yardeni 1997) tenta­tively calls it a “Waiver of Claims?”

For Alexandrian demes, cf. Chapter 1, n.90 on P.Oxy. II.261. The reading here is controversial. Schubart, the original editor, read Archegetou but was unsure; his reading has been confirmed as “fairly certain” (Delia 1991, 59). Tcherikover and Fuks suggested Archistrateiou, but that is problematic. See BL IV, 7; BL VI, 15, and BL X, 19; cf. Delia 1991, 59-60. Recently, Modrzejewski 1995, 312-13 has suggested archeg(ou), referring to a term found in literary and epigraphical Jewish sources to mean “leader” (of a synagogue or of the Jewish community). In that case, Hermogenes would not belong to a deme, and his identity as a Jew would be more probable (cf. n.64 above).

17 B.C.E. The Egyptian month Pharmouthi runs from 27 March to 25 April. Tcherikover and Fuks note ad loc. that this dowry is rather modest; cf. P.Oxy. II.281 below with a dowry of 200 drachmas of silver.

10 March, 13 B.C.E. The month Phamenoth runs from 25 February to 26 March.

Published in The Oxyrhynchus Papyri II, ed. B.P. Grenfell and A.S. Hunt (Oxford, 1899); also found at Mitteis and Wilcken 1912 (MChr. 66).

Originally published in Griechische Urkunden der Papyrussammlung zu Leipzig, ed. L. Mitteis (Leipzig, 1906), reprinted in Mitteis and Wilcken 1912 (MChr. 293). See BL III, 91; BL IV, 42; BL V, 48, BL VII, 79; and BL VIII, 170 for correc­tions and new readings, incorporated in the revised text of Pestman 1994, 110-11, which I am using. Brackets [ ] indicate where text is lost but has been restored;... indicate missing words.

Marepsemis son of Pakebkis appears in several other papyri as hypographeus (subscriber) to documents drawn up at the Tebtunis grapheion. See H.C. Youtie, “Hypographeis and Witnesses of 2nd Century Tebtunis,” ZPE 19 (1975), 191-201, esp. 199-201 (who also gives a revised text of lines 31-7).

Greek text found in New Classical Fragments and other Greek and Latin Papyri, ed. B.P. Grenfell and A.S. Hunt (Oxford, 1897), 119-21; also in Hunt and Edgar 1932, 26-9 ( = Select Papyri no. 8); Mitteis and Wilcken 1912 (MChr. 295).

size=2 color=black face="Times New Roman">Supplying autoi (masculine dative) with Hunt and Edgar and Mitteis, rather than autei (feminine dative) with Grenfell and Hunt.

Originally published in Papyrus Grecs de la Bibliotheque Nationale et Universitaire de Strasbourg, ed. P. Collomp et al. (Paris, 1948), 19-20; republished as SB

V.             8024. My translation incorporates additions from BL V, 132; cf. also correc­tions in Papyrus Grecs de la Bibliotheque Nationale et Universitaire de Strasbourg, ed.

J.  Schwartz (Strasbourg, 1963), 185.

On indictions, see Chapter 2, n.118. In this papyrus, the consuls Tatian and Symmachus provide the exact year. Phaophi is the Egyptian month running from 28 September to 27 October.

Other petitions from or on behalf of the wife are: P.Panop. 28 (329), from the wife's father against her husband; P.Oxy. VI.903 (4th/5th c.), translated in Rowlandson 1998, 207-8; P.Oxy. L.3581 (4th/5th c.), trans. in Rowlandson 1998, 209-10; P.Lips. 39 (390); PSI I.41 (4th c.); PSI IX.1075 (458); cf P.Lips. 41 (later 4th c.), a lawyer's notes on behalf of the wife. From the husband: P.Cair.Preis. 2 (362); P.Lond. V. 1651 (363). See Bagnall 1987; Beaucamp 1992, 146—56; Evans Grubbs 1995, 239—42. Cf. P.Oxy. II.281 above for a petition from an earlier period.

The Greek term for the defensor civitatis, at this time a local official concerned with cases involving property: Bagnall 1993, 165; R. Frakes, “The Office of the Defensor Civitatis’’ Classical Journal 89 (1994), 337—48.

Daimons were seemingly quite active in fomenting marital discord in late antiquity; cf. P.Grenf. II.76 and P.Stras. III.142 above. In P.Cair.Preis. 2, however, the daimon may signify epilepsy; see Beaucamp 1992, 92.

Text edited by R.A. Coles in The Oxyrhynchus Papyri LIV (1987), 200—1. The text is fragmentary;... indicates where the Greek cannot be read.

An interesting detail, intended to show that Arilla, unlike the boy's father, was providing support for the child. Not all mothers breast-fed their babies and Arilla could have hired a wet-nurse: see Dixon 1988, 120—9; cf. Rowlandson 1998, 275—6 for a translation of one from the Protarchos archive (BGU

IV.            1058).

The date is 26 March, 334. Lamprotatoi (most splendid) is the equivalent of Latin viri clarissimi (v,c.), indicating men of senatorial status.

The tabellarius was evidently a sort of private notary; see editor's note at P.Oxy. L.3581. For speculation about what law is being referred to, see ibid. and Bagnall 1987, 43.

P.Lips. 39, in Mitteis and Wilcken 1912, 141 (M.Chr. 127). After the emperor Julian apparently rescinded Constantine's law in the early 360s, it is not clear what the legal situation was, especially in the east. There may well have been legislation that does not survive. See Arjava 1988 and 1996, 177-83.

Constantine's law (Cod. Theod. 3.16.1, [331]) ruled out legal divorce due to a husband's violence; he would have to be a murderer, poisoner-magician, or tomb-robber for a wife to repudiate him legally and get back her dowry. Honorius' law (Cod. Theod. 3.16.2, [421]), which was not promulgated in the eastern provinces, would probably have classified wife-beating among the “middling faults” that allowed divorce but penalized the wife by loss of dowry and pre-nuptial gift, and refused her the right to marry again. Theodosius II's law of 449 (Cod. Just. 5.17.8) allowed a wife to divorce if her husband was “afflicting her with whippings.” Cf. the bishop Basil of Caesarea on wife­beating: wives should bear with the blows and stay in the marriage (Epistle 188, canon 9; Evans Grubbs 1995, 251). Augustine's mother Monnica avoided beat­ings by skillful handling of a bad-tempered husband, but her friends did not fare so well (Confessions 9.9.19; Arjava 1996, 130-2; Shaw 1987b, 31-2).

See Chapter 2, Part III.A at n.81. This document from Dura shows that the custom of unwritten marriage was not unique to Roman Egypt.

See Welles, Fink, and Gilliam 1959, 160-6 for text and translation of P.Dura 31. They suggest Nabusamaus and Acozzis may have been paternal cousins, as they both have a grandfather named Abissaeus.

For the Greek text and discussion, see Welles, Fink, and Gilliam 1959, 166-9. In my translation,. signify places where the writing has been destroyed; words in brackets [ ] indicate restorations by the editors of words no longer readable; words in parentheses ( ) are my explanatory additions.

89 The date is 30 April, 254. The year is reckoned from the original founding of Dura by the Seleucids in the fourth century B.C.E. The city's title is evidence that by the mid-third century it had gained the prestigious rank of Roman colonia; see Welles, Fink, and Gilliam 1959, 166—7. The day may perhaps be 29 April: see BL VIII, 118, citing PJ. Sijpesteijn in ZPE 33 (1979), 235, n.29.

5   WIDOWS AND THEIR CHILDREN

1   For Egypt, see Bagnall and Frier 1994, 126-7 and 153-5; Hanson 2000. For the assumption that remarriage was usual, see esp. Humbert 1972; cf. Parkin 1992, 132-3, n.196. Saller's (1994, 43-69) computer simulations of Roman demographics also assume remarriage was usual (though he admits the census data from Egypt show otherwise). Widows and “orphans” (usually children whose father was dead but mother still living) are the subject of an exhaustive study by J.-U. Krause, Witwen und Waisen im römischen Reich (4 vols, Stuttgart 1994-5). See the review article, “Widows, Orphans, and Social History” by T.A.J. McGinn in Journal of Roman Archaeology 12 (1999), 617-32.

2   Under the praetorian scheme of inheritance, priority in succession to a deceased male child not under patria potestas would be given to his own children (if he had any), then to other “legitimate heirs,” including agnates. Priority in succes­sion to a female child would follow the same order, except, of course, that their own children would not have priority, but would be considered part of their husband's family. Mothers, as cognates, would only inherit in the absence of agnates. Under the older, civil law scheme of succession, a mother could not inherit at all. See Gardner 1998, 15-24 on succession under the civil law and the praetorian rules.

3   See Gardner 1986a, 164-9 on women making wills. Other times when a woman might undergo coemptio would be in order to change her tutor mulierum (Gaius Institutes I.115; see Chapter 1, Part III.A) or to enter a marriage with manus (Gaius, Institutes I.109-113; see Chapter 1, Part II.B).

4    She could make her children heirs on condition that their father emancipated them, or leave them a legacy or fideicommissum (trust) to take effect upon their father's death. For one such case, see J. Gardner, “Another Family and an Inheritance: Claudius Brasidas and his Ex-wife's Will,” Liverpool Classical Monthly 12.4 (1987), 52-4.

5    On the ius liberorum, see Chapter 1, Part III.D. Under the s.c. Tertullianum, a mother with the ius lib. inherited as a “legitimate heir” rather than a cognate, though even there she ranked behind other relatives. See Gardner 1998, 228-9.

6    Most of the laws on bona materna are not translated here, but see Cod. Theod. 8.18.3 and Cod. Just. 6.60.4 in Part I.B below, and cf. the regulations regarding the fate of dowry and pre-nuptial gifts in Cod. Theod. 3.13.3 (422) and Novel 14 of Theodosius (439), translated in Chapter 2, Part II.C, and Cod. Just. 5.17.8 (449) in Chapter 4, Part II. On bona materna in late antiquity, see Humbert 1972, 397-401; Arjava 1996, 98-105; Evans Grubbs 1995, 115-18.

7    Cod. Theod. 5.1.1 (317-19). However, even if the mother did have the ius liberorum, the deceased child's paternal uncles and their children and grandchil­dren would still get one-third of the inheritance collectively. Cod. Theod. 5.1.2 of Valens (368 or 369) added that the deceased's brothers (natural or adopted) would be preferred to their mother, unless they had been emancipated (Constantine’s law probably intended this too). Cod. Theod. 5.1.7 of Valentinian III allowed emancipated brothers the same one-third as paternal uncles. See Cod. Theod. 5.1.8 in Part I.B for another modification.

The original law of 18 B.C.E., the lex Julia de maritandis ordinibus, had allowed only a year’s delay in remarrying for widows, and six months for divorcees, but this was changed by the later lex Papia: see Rules of Ulpian 14; Treggiari 1991a, 73-4. See further Chapter 2, Part I.B, at n.9.

Infamia involved restrictions on the right to represent others in court (which women could not do anyway) or to appoint representatives to act for them, or to act as witnesses; see Gardner 1993, 110-28; cf. Gardner 1986a, 46. On the Praetor’s Edict, see Chapter 1, Part IV.B, n.75.

On mourning, see Treggiari 1991a, 493-4. The Sent. Pauli I.xxi.13 say that parents and children over six are to be mourned for a year, husbands for ten months and relatives within the eighth degree for eight months.

But cf. D.23.2.6 in Chapter 2, Part I.A.2: even a bride married in absentia whose husband dies returning from dinner must mourn him. This was written in the late Republic, about 250 years before Ulpian.

Cod. Just. 5.9.1, same addressee and date. The opening sentence is the same as in Cod. Just. 6.56.4. Neither excerpt is extant in the Theodosian Code. See Beaucamp 1990, 214-18.

In other words, as each of her children dies, his or her portion goes to the surviving siblings; only when the last child has died intestate does the mother get back the half of her property that she had given them when she married.

Though the Codes give the law in the names of all reigning emperors, Eutropius was the praetorian prefect of the east, ruled by Theodosius I, who was older and more active a legislator than the western emperors Gratian and Valentinian II. Thus this was a law of Theodosius I, as was the following law (Cod. Theod. 3.8.1) and Cod. Theod. 3.8.2 in Part I.B below, also enacted at Constantinople, Theodosius’ seat. Gratian and Valentinian II were both sons of Valentinian I (reigned in the west, 364-75), by different wives. Gratian (named Augustus as a boy in 367) was killed in 383 by the forces of Magnus Maximus, who was later condemned and killed by Theodosius as a usurper. Valentinian II (named emperor at the age of four after Valentinian I’s death in 375) was also over­thrown by a usurper in 387, but was eventually restored by Theodosius, and died in 392, probably by suicide. Theodosius was made emperor in the east in 378 after the death of Valentinian I’s brother, Valens, at the battle of Adrianople, so technically he was the least senior of the three. But due to his age and personality, he was definitely the dominant force in legislation from 378 on. See Honore 1998 on legislation of this period.

Adnotatio, on which see Chapter 3, n.132.

This is the Laudatio Murdiae (‘’Eulogy of Murdia”). I am using the Latin text as in Dessau, ILS 8394. Part of the inscription is also found at FIRA III.70. For a translation of the entire inscription, see Gardner and Wiedemann 1991, 132-3. Rather than making her a co-heir along with her brothers, Murdia gave her daughter her share as a legacy. See Champlin 1991, 116; Dixon 1988, 56-7. Murdia gave him apraelegatum, on which see Buckland 1963, 352-3.

See Fantham 1995; Bradley 1997; Dixon 1997, 162-4; Hunink 1997 and 1998; and Harrison 2000, 39-88 for recent discussion. The text used is Hunink 1997. See Chapter 1, Part III.B and Chapter 2, Parts I.D.2 and 3, and I.E.2 for the Apologia.

For the idea that enforced celibacy of young widows was injurious to their health, see Hanson 2000, 149-50.

She had in fact been betrothed to her husband's brother, and marriage tablets (tabulae nuptiales) had been drawn up, but when her father-in-law died she broke the engagement to his son: Apologia 68.

Fantham 1995, 223, suggests there may have been a local custom of widows marrying their husband's brother; cf. the banning of such “levirate” marriage in late Roman law: Cod. Theod. 3.12.2 (355) and Cod. Just. 5.5.8 (470), in Chapter 3, Part II.A.

An “undutiful will” (inofficiosum testamentum) was one in which the testator over­looked or gave less than expected to those he or she should have included according to legal and social norms, particularly children, parents, and siblings. Those who had been so slighted could bring a querela inofficiosi testamenti (“complaint of undutiful will”), and the will could be broken (see Chapter 1, n.84). Cases in which children of first marriages brought complaints when their parent favored a second spouse in his or her will were particularly common. See Gardner 1986a, 183-90. Pudens evidently thought Pudentilla's will would favor Apuleius at his expense.

Apuleius is referring to a letter (in Greek) written by Pudentilla to her elder son, Pontianus, in which she had jokingly alluded to the claim of Apuleius' detractors that he was a magician and had bewitched her. The prosecution, erro­neously describing this as a “love letter,” had read out carefully selected passages of the letter out of context in an attempt to show that Pudentilla was not in her right mind. Apuleius put the passages in context and reproached Pudens for destroying his mother's privacy by making her letter public. See Apologia 79-84 and Hunink's notes ad loc.

Humbert 1972, 298-9 believes the passage is interpolated; Beaucamp 1990, 313 accepts it as genuine. The rescript as awhole is badlycomposed: the opening sentence uses the pluralpupilli, but paragraphs (1) and (2) refer to only one boy (puer).

This was a law of Septimius Severus, referred to in a number of legal sources; see esp. D.27.9 and Cod. Just. 5.71; Talbert 1984, 449, #134. On tutores and cura­tores, see Chapter 1, Parts II.C and III.E and Part II below.

This is an excerpt from a long edict “to the People” enacted at Sirmium (now in Kosovo, Yugoslavia). Other parts of the law are at Cod. Just. 2.16.1 and 5.72.4 and the fragmentary Cod. Theod. 3.30.3. Seeck 1919, re-dated it to 329. For a list of Constantine's laws on guardians, see Evans Grubbs 1995, 346-7.

Humbert 1972, 405-9, thinks that this law deprived remarried mothers of their right to raise the children of their first marriage, rather than of any control over their property. I do not think the text as we have it supports this.

Cod. Theod. 8.18.1 (315) and 8.18.2 (318 or 319). The children were in turn expected to offer their father one-third of the bona materna. On bona materna, see above at n.6.

The Latin words are ingenuam, liberam, libertam, libertinam. An ingenua would have born free; a libera could be freeborn or a former slave who had been freed. Liberta and libertina both denote a freedwoman; liberta is used of a freedwoman in relation to her former master (patron), libertina means “freedwoman” gener­ally. Pharr 1952, 215 translates libertina as “daughter of a freedwoman.” In the Justinianic version (Cod. Just. 8.55.7), this first sentence is omitted, and the emphasis is solely on remarried mothers.

31   The Latin is portentosae vilitatis abiectaeque pudicitiae, presumably meaning prosti­tutes or women of promiscuous lifestyle. Cf. Chapter 3, Part II.B for laws forbidding marriage with high-ranking men to “humble or despicable” women.

32   Though in the names of both surviving sons of Constantine, this is a law of Constantius, at that time ruling in the eastern Empire. Other parts of the same law are found at Cod. Theod. 8.13.2 and 3.13.1. The law's provisions were repeated in another law of Constantius, Cod. Theod. 8.13.4, enacted in 358 and addressed to the urban prefect of Rome (thus clearly extending the same policy to the west as had already been in effect in the east.) Cod. Theod. 8.13.1 is found at Cod. Just. 8.55.7, with the change that mothers who do not remarry can revoke their entire gift, not just one-half.

33   Gifts “in anticipation of death” (donationes mortis causa), trusts (fideicommissa), and legacies were all ways of transferring property after death by will or codicil. See Nicholas 1962, 264-70.

34   Under the s.c. Tertullianum, on which see Introduction to this chapter and Part II.A.1 below. She can inherit only half of a deceased child's property; presum­ably any surviving daughters get the other half. If there are sons surviving, they have priority over their mother, and she does not inherit.

35   Though the law as recorded in the Codes is in the names of all three emperors, its promulgation at Constantinople indicates that, like Cod. Just. 6.56.4 and Cod. Theod. 3.8.1 in Part I.A above, this is a law of Theodosius I; see n.14 above. It was, however, received in the west as well.

36   The words “After other matters” at the beginning and “And other matters” at the end indicate that this is an excerpt.

37   See Honore 1998, 249-51. The same law also included the so-called “law of citations” (Cod. Theod. 1.4.3) detailing which classical jurists were to be considered authoritative by fifth-century judges. Other parts of the law are: Cod. Just. 1.14.2 and 3; 1.19.7 and 1.22.5, all on the definition and validity of different types of legal enactment; Cod. Theod. 4.1.1 (father has right of succes­sion to deceased child without the need for a decree, just as mother does); 8.18.9 (father or grandfather with patria potestas has usufruct of bona materna) and 10 and 8.19.1 (in no case does a father gain ownership of bona materna); and Cod. Just. 6.30.18 (child's succession rights). All of the excerpts from the law of 426 except Cod. Theod. 5.1.8 are addressed “to the Senate” (or “to the Senate of Rome”) in the Codes, but it is part of the same law, directed toward the senato­rial class of Rome and hence a law of Valentinian III (then ruling from Ravenna), despite co-attribution to the eastern emperor Theodosius II.

38   In 410, a law of the eastern emperor, Theodosius II, had granted the ius liberorum to all (Cod. Theod. 8.17.3; see Chapter 2, Part II.A), but this did not affect the western Empire until the publication of the Theodosian Code in 438.

39   Found at Cod. Just. 6.56.1 + 6.55.11; see Beaucamp 1990, 233.

40    Cod. Theod. 3.8.1 of Theodosius I (Part I.A), which extended the mandated delay in remarrying to one year, presumably applied to all widows, but all the other laws involve widows with children only.

On patristic exhortations to widows, see Humbert 1972, 327-40; and J.N. Bremmer, “Pauper or Patroness: The Widow in the Early Christian Church,” in Between Poverty and the Pyre: Moments in the History of Widowhood, ed. J.N. Bremmer andL. van den Bosch, (London and New York: Routledge, 1995), 31-57.

Champlin 1991, 87-102 tends to see the captator as more of a literary topos than a social reality, but the convergence of literary and legal evidence in late antiq­uity suggests that there was a basis for concern. The final paragraph of Majorian’s novel denounces all legacy hunters, and says if an ‘extraneous’ person does inherit, he must give one-third of the inheritance to the fisc.

This refers to Cod. Theod. 3.8.2 (382), of Theodosius I, above.

See Chapter 2, Part I.E on gifts between living spouses.

Under the lex Falcidia, children, as heirs, were entitled to at least one-fourth of the inheritance, and if they did not receive it, could bring a claim of “undutiful will.” See n.23 above; Chapter 1, n.84; Chapter 4, n.20.

A mother could appoint a tutor for her children in her will only if she had made them her heirs. However, governors were accustomed to confirm such testamen­tary appointments whether or not the children were their mother’s heirs: see D.26.3.2 pr. (Neratius) and Cod. Just. 5.28.4 (Alexander Severus, 224).

See chapter Introduction. Gardner 1998, 247-8 notes that mothers with the ias liberoram had little chance of being their child’s heir anyway, since siblings would succeed over their mother. Septimius Severus’ ruling, which denied even succession as a cognate to mothers who failed to have a guardian appointed, would have been more of an impetus.

A delict was an act of wrong-doing that fell under private law, as opposed to a crimen that fell under public (criminal) law. Failing to request a tutor was not a delict (or a crime).

That is, under twenty-five. For the “slipperiness of age” (aetatis labricam) as an excuse from liability, cf. Cod. Just. 5.5.4 in Chapter 3, Part II.D.

Another rescript of Alexander Severus says that a paternal aunt can also request a guardian (Cod. Just. 5.31.4, dated 223).

This rescript is to be joined with Cod. Just. 5.71.12, which indicates that Leontius wanted to recover a debt owed to him by a minor by having the governor issue a decree allowing the minor’s rural property to be sold to pay the debt. It is possible that the child’s mother intentionally did not have a tutor appointed to avoid legal proceedings against him; cf. D.38.17.2.45 above.

This apparently applied to mothers with and without the ias liberoram; see Cod. Theod. 5.1.1, cited at n.7.

The word translated as “children” is filios, which can include daughters as well as sons: see Chapter 1, Part I.A.

Ms. date 315; re-dated by Seeck 1919, 166 to 318.

Including mothers, but also grandparents, who were also obliged to have guardians appointed in accordance with the laws; see D.38.17.2.28 above and Cod. Theod. 3.18.1 (Constantius, 357).

This implies that at the time of Theodosius’ law, mothers were supposed to see to the appointment not only of tutors for their children below puberty (papilli) but also curators for minors, i.e. those above puberty but under twenty-five. Cf. Cod. Just. 5.31.6 (Part II.A.3 below) for the earlier policy. Justinian restored the old policy that mothers were not responsible for the appointment of curators: Beaucamp 1990, 319.

Excerpts from this law are found at Cod. Just. 6.58.10, 6.56.6, and 8.14.6. The place of enactment and the addressee (Florentius was praetorian prefect in the east) indicate that this is a law of Theodosius II.

That is, Septimius Severus' ruling that a mother must ask for a guardian to be appointed or lose her right to inherit under the s.c. Tertullianum.

On “interceding,” see Chapter 1, Part IV.D. This passage is from Book 29 of Ulpian's commentaries on the Praetor's Edict.

Cf. n.56 above. Though preserved separately, Cod. Just. 5.35.1 and 5.31.6 were part of the same rescript, as they have the same addressee and date.

Arjava 1996, 89-90; cf. Gardner 1986a, 150-1; and Beaucamp 1990, 327-8, who notes that Cod. Just. 9.41.2 (a rescript of Septimius Severus and Caracalla dated 204) says that slaves should not be heard (in court) against their masters' tutors or mother, unless it is an accusation concerning the guardianship; she believes this implies that mothers could also be tutors.

Decreed by Septimius Severus for mothers who did not request tutors; see Part II.A.1 above.

See Chiusi 1994, 167-70 on this passage. “Scaevola” is Q. Cervidius Scaevola, writing in the mid-late second century, not Q. Mucius Scaevola, the Republican jurist. “Claudius” is Claudius Tryphoninus, a jurist of the early third century.

In another case, where the mother had given an indemnity to the tutor and had since died, her son was told that he had to bring an action against the tutor rather than the mother's heirs (Cod. Just. 5.51.9, 293). Presumably the tutor could claim in his defense that he had been released from liability. See Chiusi 1994, 166-7; Gardner 1998, 250-1.

This law was confirmed in the east by Theodosius' grandson, Theodosius II (Novel 11, Part II.A.1 above). Justinian extended Theodosius' law to allow mothers of illegitimate children to serve as their tutors, if their father had not made other provisions in his will, and also enabled grandmothers to undertake the guardianship: Beaucamp 1990, 331.

The Justinianic version (Cod. Just. 5.35.2) adds sacramento praestito after “avow,” specifying that the mother is to make a solemn oath. An oath is also mentioned in Theodosius II's law of 439 (Novel 11.2). See Beaucamp 1990, 333-4.

This is a law of Theodosius I, who was in the west at Milan from summer 388 to mid-391. See Honoré 1998, 58-9, who identifies the quaestor who drafted this law as Nicomachus Flavianus, defender of traditional Roman “pagan” religion. Published in The Oxyrhynchus Papyri XXXIV, ed. L. Ingrams, P. Kingston, PJ. Parsons, andJ.R. Rea (London, 1968), 94-7; see also BL VI, 111 and VIII, 261.

For this reading, see H.C. Youtie in ZPE 4 (1969), 39; cited in BL VI, 111. The date is 18 February, 206: see BL VIII, 261. The name of Geta, son of Septimius Severus, was deleted after his murder by his brother Caracalla in 212; cf. Chapter 1, n.31.

Originally published in The Oxyrhynchus Papyri VI, ed. B.P. Grenfell and A.S. Hunt (London, 1906), 247-53, republished in Mitteis and Wilcken 1912 as MChr. 317 and by V. Arangio-Ruiz in FIRA III.51, 153-9. I am using the text in Migliardi Zingale (2nd edn., 1991), 84-7. See also BL I, 329 and III, 133 for restorations to the lacunae in the text. The papyrus is not completely preserved, with the last part of each line missing; in my translation, words between brackets [ ] have been restored where the text is missing;... indicate missing words. I am not translating the entire will, but only the parts that relate to guardianship and the mother's role.

The exegetes was a municipal official (see P.Oxy. I.56 in Chapter 1, Part III.C) in Roman Egypt; the prytanis was the head of the town council (boule). Note that prytanis is not extant in the text but has been supplied; another suggestion for the lacuna was enarchos prytanis (see BL I, 329), “the prytanis in office,” but that has not been generally adopted.

This refers to Alexander Severus' concession that wills written in Greek were valid under Roman law; see the note of the editors of P.Oxy. VI.907 ad loc.

The Latin term matrona stolata is here transliterated into Greek. It is a title of respect for women (referring to the stola traditionally worn by the respectable Roman matron) and indicates high status; see B. Holtheide, “Matrona Stolata-Femina Stolata,” ZPE 38 (1980), 127-31.

An aroura was a measurement of land, about 0.68 of an acre.

See Chiusi 1994, 177 on this clause. She suggests it is similar to the provision in a marriage contract of 127 (P.Oxy. III.496; see Part II.B.3 below) that says no one is to eject the mother from the guardianship.

The Egyptian month Pauni runs from 26 May to 24 June; Epeiph runs from 25 June to 24 July. Hermogenes died less than two months after making this will. There are also many accusations against guardians known from the Egyptian papyri, where the accuser is not the ward's mother, but the ward himself (or herself); for instance, P.Oxy. XXXIV.2713 in Chapter 1, Part IV.C.2.

The name “Eglas” is from Egaltein, the Aramaic name for Zoar, the district in which the village of Maoza is located; it is evidently not John's patronymic (Bowersock 1991, 340-1, cited in BL X, 286).

All the documents are published in Lewis 1989. For discussion of the case, see Chiusi 1994, 178-91 Cotton 1994 and Lemosse 1968.

I translate only the outer text, as in Lewis 1989, 55. The papyrus is very frag­mentary (see Plate 8 in Lewis 1989). Rather than mark with brackets all words missing from the papyrus which have been restored, I adopt Lewis' restorations;. indicate where the papyrus cannot be read or restored. The inner text is of use in restoring the outer text, as is the text of P.Yadin 15, which was written directly after P.Yadin 14.

There is a discrepancy in the day according to the Roman calendar (the fourth day before the Ides of October = 12 October) and the Greek (Macedonian) calendar (24 Hyperberataios = 11 October); see Lewis 1989, 57 note ad loc., who thinks 11 October is more likely. Thesrei is the Jewish month.

During his year in office, a governor would travel to various cities in his province, hear cases and receive petitions; these assizes are known in Latin as his conventus or in Greek (as here), parousia.

The translation here is from the outer text in Lewis, 1989, 58-60 (cf. Plate 10) with a few restorations based on the inner text when it was better preserved.

Cf. the practice of mothers giving security to tutors, as seen in the rescripts Cod. Just. 4.29.6 pr. and 5.46.2 in Part II.A.3 above. See Chiusi 1994, 189-90. Greek liblarios. See Chapter 2, Part III.B, n.136.

Greek text in Lewis 1989, 116-17 with Plate 36. See also BL IX, 376 for correction of a typographical error in line 15.

But see J.R. Rea in The Oxyrhynchus Papyri LVIII (London, 1991) at P.Oxy. LVIII.3921: he thinks Julia Crispina was the orphans' mother.

In “Julia Crispina, Daughter of Berenicianus, A Herodian Princess in the Babatha Archive: A Case Study in Historical Identification,” Jewish Quarterly Review LXXXII (1992), 361-81, Tal Ilan suggested that Julia Crispina was the granddaughter of Berenike, the Jewish princess who was for a time the mistress of the emperor Titus. Berenike is known to have named her son Berenikianus, and Julia Crispina is said to be the “daughter of Bernikianus” (sic) in P.Yadin 25. A Julia Crispina is also known from BGU I.53 to have been the absentee landowner of two houses in the village of Euhemeria in the Arsinoite nome in Egypt, and has been identified with the Julia Crispina of P.Yadin 20 and 25; see Lewis 1989, 111, n.2 and Ilan, op. cit., 368-9.

P.Med.Bar. 1, published in Montevecchi 1981 (= Montevecchi 1998, 273-85), republished as SB XVI.12720; translation in Rowlandson 1998, 167-8.

Marriage contract of 127: P.Oxy. III.496, at lines 10-13. Other contracts: P.Oxy. III.497 (early second century) and P.Oxy. II.265 (81-95 C.E.), where it is added that if the appointed guardian dies, the wife is to be sole guardian.

FIRA III.47, also in CPL 221 and Migliardi Zingale 1988, 22-6; translation in Campbell 1994, 158-9. A wax tablet polyptych in Latin, dated 142. As Campbell notes, Antonia Thermutha is called the boy's mother, not Silvanus' wife. As a soldier in the second century, he could not legally marry, but he could make his illegitimate child heir in his will; see Chapter 3, Part I.C.4.

Text used is The Oxyrhynchus Papyri VI, ed. B.P Grenfell and A.S. Hunt (London, 1908), 221-2.

For the “royal scribe” (Jasilikos grammateus) also acting for the strategos (a nome official), cf. P.Oxy. I.56 (211 C.E.) in Chapter 1, Part III.C.

See editors' note ad loc. Matrina wanted Didymus to absolve her from all responsibility for mismanagement of the guardianship.

Van Bremen 1996, 228-30. A third-century B.C.E. inscription from the Aegean also mentions a woman as prostatis, perhaps in a quasi-guardian func­tion as in Ptolemaic Egypt: see O. Montevecchi, “Ancora su Prostates-Prostatis,” in Montevecchi 1998, 287-90 (orig. pub. 1989).

Though Lycia did not become a Roman province until the reign of Claudius (41-54 C.E.), after the date of this inscription, it had come into the Roman sphere of influence earlier.

New Roman">The Greek text of the inscription is found in Balland 1981, 251; see also New Documents Illustrating Early Christianity vol. 6, ed. S.R. Llewellyn with R.A. Kearsley (Sydney: Macquarie University, 1992), 24.

Balland restored the inscription from the Xanthians (VII.80) to show that Sen- breidase's husband had been her first cousin; such intermarriage among leading families was not at all uncommon in the cities of Asia Minor in the early Empire: Balland 1981, 253-4; cf. van Bremen 1996, 229 and 258.

“Second” in relation to the honors accorded her by the Xanthians on the accompanying inscription; cf. Balland 1981, 252-3.

Supplementum Epigraphicum Graecum (SEG) VI.672 (1932). On the honoring of women benefactors, see Chapter 1, Part VI.C.

P.Oxy. VI.909, lines 1—13, dated 225. Originally published by Grenfell and Hunt in 1908 (n.93 above), republished in Hunt and Edgar, Select Papyri no. 35.

SB V.7558; also in FIRA III.30 and Select Papyri no. 260. See also BL III, 189; IV, 80; VII, 195 and the revised text by H.C. Youtie, “P.Mich.Inv. 2922 = Sammelbuch V.7558,” ZPE 13 (1974), 241-8. This is actually a request for release from the guardianship by one of the two men appointed epitropoi.

P.Oxy. LVIII.3921, ed. J.R. Rea (cited at n.88 above); cf. Lewis 1993, 31-3.

I use the Greek text in Parassoglou 1978 (on which see the review by R. Bagnall, BASP 17 [1980], 97-104). The papyrus is broken off at the left side, so a number of words are lost but have been restored. I do not bracket the restorations in my translation, since there are so many and most are uncontro- versial (but see BL VI, 123, VII, 176; VIII, 300, IX, 230). P.Sakaon 36 was first published as P.Ryl. II.114 (ed. J. de M. Johnson, V. Martin, and A.S. Hunt, Manchester, 1915), and is also in Hunt and Edgar 1932-4, vol. II, no. 293.

The age denoted by aphelix (‘'underage”) in the later third century is unclear. Earlier it was synonymous with Latin impabes, denoting a boy under fourteen or a girl under twelve. At least some of the children must be under fourteen; otherwise it would be absurd for her to call them nepioi (but cf. Beaucamp 1992, 173-4; one son may have been almost twenty-five!).

In Greek, to metrophiles. The meaning of this word has been debated. Parassoglou 1978, 86 translates it as “love of equity;” PJ. Parsons prefers “your love of humble people” (in Journal of Egyptian Archaeology 71 [1985], 210, cited in BL VIII, 300); M. Blume says “ton amour de la mesure” (in Egitto e storia antica dall’ ellenismo all’età araba [Bologna, 1989], 279-81, cited BL IX, 230). In any case, it is meant to be flattering and to stress the prefect's probity.

This is the prefect's subscription to the petition, which was then pasted as the 69th sheet in a roll of petitions to be kept in the prefect's office.

P.Sakaon 31 was first published in Jouguet 1911 as P.Thead. 15, and is also in Select Papyri II, no.262; cf. BL I, 430. I follow the Greek text in Parassoglou 1978, 68-71. (Note that Crook 1995, 101-2 uses Jouguet's text of P.Thead. 15).

The Greek translation of the Latin procurator is epitropos, but here it means an imperial official; cf. Crook 1995, 101 n.182.

See Part II.A and Chapter 1, Part V.B. Beaucamp 1992, 21-8 discusses cases where women in late antique Egypt go to court; cf. also her Annexe III (pp. 389-93) of women in the papyri who appear in court. In all cases women are acting either in their own interests and/or those of close family members; in no case do women represent others apart from their children or minor relatives. (Thus the evidence of the papyri and the strictures of Roman law actually coin­cide: see Chapter 1, Parts V.A and B.) Aurelia Artemis is unusual in acting on behalf of others [Beaucamp 1992, 24], but of course they are her own children, whose father is dead (and her own interests are also involved).

A word cannot be read here; proposed readings include “having appeared” (as in Hunt and Edgar 1932-4) or “being dead” (cf. app. crit. in Parassoglou 1978; Crook 1995, 101), which cannot be the case, since Aurelia Artemis was still alive more than twenty years later.

P.Sakaon 37 was first published in Jouguet 1911 as P.Thead. 18. It is quite frag­mentary, and there are many restorations. I follow the text in Parassoglou 1978, 87-90, except where noted. See also BL 1,430; V, 148; VII, 176; VIII, 300.

The functions of the hypomnematographos (‘'recorder”?) are unclear. Here he is evidently acting as strategos: see Jouguet 1911, 113-14.

Or, “so that you might order the strategos by means of your sacred subscrip­tion”: see G. Foti Talamanca, Ricerche sul processo nell’Egitto greco-romano II.1 (Milan: Giuffre, 1979), 137 n.238 (cited at BL VIII, 300).

This is the notation made by the prefect's office; see n.108 above. Hathyr runs from 28 October to 26 November (of the year 283).

See BL V, 148 and VII, 176. Mecheir runs from 26 January to 24 February (284). The day is missing.

De inspiciendo ventre custodiendoque partu. The Latin word venter can mean “stomach,” “womb,” or “the unborn child.” See Thomas 1986, 211-14. My translation varies according to what sounds more appropriate in English. Excutio can mean either “drive out” or “search.” “Search” is preferable here.

The Latin word parens can mean father or mother, or even some other relative; see D.50.16.51 (Gaius) in Chapter 1, Part I.B. Here it evidently refers to the child's deceased father, who might have made provision in his will for children yet to be born. This passage suggests that a fatherless child might live with someone other than its mother; see Gardner 1984, 133.

The heir “instituted in the first grade” would be the person named in the will as heir. The testator could also name a “substitute” heir to inherit if for some reason the heir in the first grade could not inherit (perhaps because he or she had died since the making of the will) or refused the inheritance.

Watson 1974b, 31-62 points out that though it is very difficult to know when individual edicts were first introduced into the Praetor's Edict, an edictum de inspiciendo ventre, dealing with the inspection of pregnant women, was known already to the republican jurist Sulpicius Rufus (died 43 B.C.E.). On the date of the s.c. Plancianum, see Chapter 4, n.25.

Andria, lines 770-1. This was in response to a claim that a baby had been smuggled in during the alleged birth (see Part III.B below).

Liber venter. Here venter clearly means “unborn offspring” (cf. n.118). Liber can mean either “child” or “free;” here the the latter is more likely.

On bonorum possessio contra tabulas, see Buckland 1963, 382 ff.; Schulz 1951, 270-4.

The following passages (D.37.9.27; D.25.6.1; D.3.2.15-19) are all from juristic commentaries on the Praetor's Edict.

On “pupillary substitution” (naming a substitute heir for a child who was a pupillus, that is, below puberty) and “second tablets,” see Schulz 1951, 263.

In the following sentence (not translated here), Papinian says that he replied (i.e, to the person who had consulted him) that if the deceased's nephews lost the case, they should not inherit even as substitute heirs.

The emperors were actually Theodosius I and his sons Arcadius, and Honorius. This is a law of Theodosius I.

This was part of a longer law, other excerpts from which are at Cod. Theod. 2.12.5 (see Chapter 1, Part IV.E); Cod. Theod. 4.8.9.; and Cod. Theod. 11.30.50. Cod. Theod. 4.3.1 is found also in Cod. Just. 6.17.2.

131  For pregnant women in the papyri, see S. Adam “La femme enceinte dans les papyrus,” Anagennesis. A PapyrologicalJournal 3 (1983), 9—19; and Montevecchi 1998, 259-64 (orig. pub. 1979).

132  The text used is W. Schubart, ed., Aegyptische Urkunden aus den königlichen Museen zu Berlin: Griechische Urkunden Band IV (Berlin, 1912). Lacunae in the papyrus are indicated by...

133  On infant exposure, see Harris 1994; cf. D.40.4.29 in Chapter 4, Part I.E.2 for a pregnant divorcee who exposed her child.

134  Year 21 of Augustus' reign, 10 B.C.E. The Egyptian month Phaophi runs from 28 September to 27 October. The agreement is their marriage contract, now made null and void.

135  size=2>8 B.C.E. The month Pachon runs from 26 April to 25 May. In the Roman period, the Egyptian year began at the end of August, so this is eighteen months after Dionysarion and her husband made the marriage agreement.

136  P.Gen. II.103-4 are published in Les Papyrus de Geneve, Part II, ed. C. Wehrli (Geneva, 1986), 76-80; for corrections see Wehrli in ZPE 67 (1987), 117-18; BL VIII, 13; IX, 91. For a translation see Rowlandson 1998, 289-91; discus­sion ibid. and in Hanson 2000, 138-9; cf. Gardner 1984.

137  P.Gen. II.104 mentions Antonioi, Diogenes and at least one other, “on the female side.” Gardner 1984, 133 notes that if Petronilla's mother-in-law had the ius liberorum, she would have been able to succeed to her son under the recently enacted s.c. Tertullianum (see chapter Introduction) if he had no legiti­mate children and no brothers.

138  Published in A Family Archive from Tebtunis (P.Fam.Tebt.), ed. B.A. van Gronigen (Leiden, 1950), 70-5. Translation in Rowlandson 1998, 180-1.