B Right to act legally on behalf of oneself or ones family

Women could act legally, however, in regard to a matter pertaining to their own property or person. Indeed, the papyri show plenty of evidence for women appearing in court on behalf of themselves or family members, though often represented by a male relative or professional advocate [Anagnostou-Canas 1984; Beaucamp 1992, 21—8].

1   Right to act legally in civil cases

Sent. Pauli I.ii.2: A woman is not prohibited from undertaking the work of a legal representative¹²⁵ in regard to her own affair.

A married woman who was legally independent [sui iuris; see Part II] could bring charges for insult (iniuria) to herself. However, in such a case her husband could bring charges for iniuria to himself, because insult to a married woman was considered to be insult to her husband also [cf. D.47.10.2, Part V.A.1]. This and the following passage are from Paulus' commentaries on the Praetor's Edict:

Exceptions to the prohibition on women acting legally on behalf of others were made in the case of family members, particularly in cases where there was no male relative competent to do so.

D.3.3.41 (Paulus): It is permitted for women to act sometimes on behalf of their parents, when there is a legal hearing, if by chance illness or age impedes their parents, or they do not have anyone (else) who can act for them.

2    Right to bring criminal charges

Even in regard to the major offenses subject to criminal trials (indicia publica; cf. V.A.2 above) a woman could approach the authorities to make an accusation, provided that she or a close relative was the victim:

D.48.2.1 (Pomponius): It has not been permitted for a woman to make someone a defendant in a criminal court (iudicium publicum), unless of course they are avenging the death of their parents, children, or of their patron or patroness and their (the patrons') son, daughter, grandson, or granddaughter. D.48.2.2 pr. (Papinian): In certain cases, the right of public accusation has been conceded to women, as for example, if they are avenging the death of those men or women against whom they do not (have to) testify against their will by the law of criminal (proceedings). And the Senate decided like­wise in the Cornelian law on wills; but it has been permitted to women to speak in a criminal court also concerning the will of a slave owned by their father or mother.

Cod. Just. 9.20.5, 7 May, 259

Emperors Valerian and Gallienus Augusti and Valerian the Caesar to Juliana:

If an adversary is detaining your brother, you ought to request a hearing (postulare) against him under the Fabian law,¹²⁷ after approaching the governor of the province.

Cases are known in which women did take legal action concerning the death of a family member [cf. Part VC below]. For instance, the woman known as Turia avenged her parents' murder, which had occurred shortly before her wedding day. We hear about “Turia” in the eulogy given by her husband at her funeral, which was later engraved on a marble inscription at Rome.¹²⁸ Note, however, that her husband says the duty fell on her because her male kin were unavailable to take action themselves.

Laudatio Turiae I.3—5, late 1st c. B.C.E.

You were suddenly orphaned before our wedding day when both of your parents were killed together in the deserted countryside. Through your efforts most of all, since I was away in Macedonia and your sister's husband Cluvius was in the province of Africa, your parents' death did not remain unavenged.

Emperors sometimes received requests for clarification on whether a woman could bring murder charges. Though the imperial replies reiterated the classical rule that women could prosecute in cases involving injury (including murder) to themselves or family members, it is clear that the emperors thought this right should be used rarely, and with great caution:

Cod. Just. 9.1.4, 16 June, 222

Emperor Alexander Augustus to Dionysius:

Your wife should approach the governor of the province if she thinks the murder of her (male) cousin should be avenged. Posted on the sixteenth day before the Kalends of July in the consulship of Alexander Augustus.

Cod.

A mother is among those persons who are able to avenge their own son’s death without fear of the penalty for calumnia, and this benefit of the Senate’s decree has been preserved also in other criminal trials. [The rest of the rescript is omitted.] Posted on the sixth day before the Kalends of July in the consulship of Julianus and Crispinus.

Cod. Just. 9.1.9, 2 March, 239

Emperor Gordian Augustus to Severianus:

A competent judge is not unaware that a woman who chooses to pursue revenge (for the) murder of a son, should not be admitted rashly to bring an accusation, until she has proven that she is the mother. Posted on the sixth day before the Nones of March in the consulship of Gordian Augustus and Aviola.

Cod. Just. 9.1.12, 27 April, 293

Emperors Diocletian and Maximian Augusti and the Caesars to Corinthia:

A woman is not permitted to bring an accusation concerning a crime which has been (put) among publica iudicia except for certain reasons, that is, if she is pursuing outrage (iniuria) to herself or her family, (and) according to the ancient statues only concerning those (reasons) for which it has been specially allowed, and not by demanding an (imperial) rescript from the Emperor. (1) Therefore the governor of the province, after being approached (by you), will first investigate whether the crime is such, that a woman is not prohibited from entering an accusation about it. Subscribed on the fifth day before the Kalends of May in the consulship of the Augusti.

Particularly awkward was the case where a mother wished to accuse her own son of plan­ning her death, since this involved a violation of familial pietas as much as a woman's right to prosecute:

Cod.

Emperors Diocletian and Maximian Augusti and the Caesars to Aelia:

You are able to undertake an accusation against your son on account of the plot which you claim was prepared against your life, if your sense of duty (pietas) and the natural reason of your mind do not revoke your inten­tion. Subscribed on the sixteenth day before the Kalends of March in the consulship of the Caesars.

3    Right to bring an action over a family member’s freedom

If someone was thought to be held in slavery unjustly, it was possible to bring a legal action de liberali causa (‘'concerning freedom”) to force the slaveholder to release the enslaved person. Slaves themselves could not bring this action; they had to find an advocate (adsertor) who would act for them. Usually women were not allowed to bring a case de liberali causa, since they were not supposed to undertake legal action on behalf of others. However, in one of his commentaries on the Praetor's Edict, Ulpian notes an exception:

D.40.12.3.2 (Ulpian): But when there is no other (male) person of this sort, who would litigate on his behalf, then it is necessary that the ability to approach the praetor and give information about this be given even to a mother or to daughters or sisters or other women who are related, or even to a wife, so that, when the case has been heard, help may be given to (the enslaved person) even if he is unwilling.

Related to the action de liberali causa was an action to force someone who was unjustly holding another in captivity to “exhibit” (exhibere) the wrongly held person.

D.43.29.3.8 (Ulpian): The Praetor says: “You are to exhibit.” “To exhibit” is to bring forth into public and offer people the ability to see and touch: strictly speaking, “to exhibit” is to have outside of a concealed place.

name=bookmark266>4    Right to bring an action for the public welfare

Women were also allowed to bring a public legal action when the state was believed to be in danger; for instance, if they wanted to accuse someone of treason (jnaiestas) against the emperor or the Roman people. Here Papinian refers to a famous example of a woman’s infor­mation leading to suppression of a plot against the government, when a woman named Fulvia (not Julia, as Papinian reports) informed Cicero about the conspiracy led by the disaffected aristocrat, Catiline, in 63 B.C.E.:

D.48.4.8 (Papinian): In criminal inquiries of treason even women are heard. In fact, a woman, Julia (sic), uncovered the conspiracy of Sergius Catiline and provided the consul Marcus Tullius (Cicero) with evidence.

A public accusation was also open to women who had information about the government distribution of free grain to the people of Rome, which was under the supervision of the prefect of the grain dole (praefectus annonae). Protecting the food supply to Rome was so essen­tial to public order that people normally not able to bring a public action are allowed, even encouraged to do so. This passage is from the jurist Marcian’s first book on iudicia publica:

D.48.2.13 (Marcian): The deified (Septimius) Severus and Antoninus (Caracalla) said in a rescript that a woman bringing information pertaining to the grain dole is to be heard by the prefect of the grain dole for the public good. Those branded with legal infamy (infamia) also are allowed to bring an accusation without any doubt. Soldiers also, who are not able to bring others’ lawsuits to court, (since) they are on guard on behalf of peace, even more should be allowed to bring this type of accusation. Slaves who bring an accusation also are heard.

The same rescript referred to by Marcian is quoted by another jurist, from which it is clear that the emperors were replying to a female petitioner:

D.48.12.3.1 (Papirius Justus): [the beginning of the passage is omitted] Likewise (the emperors)¹³⁰ replied in a rescript in these words: “Though it is not customary for women to employ this sort of denunciation, however, since you have promised that you will show things which pertain to the benefit of the grain supply, you are able to inform the prefect of the grain supply.”