D The ius liberorum

According to Gaius, freeborn women who had three children, and freedwomen who had four, were freed from tutela mulierum by the ius (trium) liberorum, the “right of (three) children” [Institutes.

Many women, however, may not have known about this imperial privilege or have been in a position to take advantage of it. Only Roman citizen women were eligible for the ius liberorum, as Augustus' marriage legislation was aimed only at Roman citizens. After the Edict of Caracalla in 212, the “right of children” became much more widespread, and the number of women in the papyri who claim that they have it increases, though a dispropor­tionate number are from the well-to-do and influential class of bouletai (town councilors) [Sheridan 1996; cf. Sijpesteijn 1965; Beaucamp 1992, 193-267].

After the emperor Claudius abolished tutela legitima for freeborn women, tutela mulierum ceased to be a very restrictive institution for most women (again, freedwomen were at a disad­vantage), leading one scholar to suggest that the ius liberorum then became “honorific rather than a practical advantage” [Dixon 1988, 89-91].

Moreover, the ius liberorum carried other, more practical benefits for both women and men, particularly in regard to inheritance rights [Treggiari 1991a, 66-75]. The senatusconsultum Tertullianum, under the emperor Hadrian, granted women with the ius liberorum inheritance rights to their children who died without a will; previously the children's agnate relatives would have succeeded upon intestacy [See Chapter 5, Introduction]. Spouses with the ius liberorum were not subject to the Augustan legislation's restrictions on how much they could leave each other by will [see Chapter 2, Part I.B]. The emperor even sometimes granted the ius liberorum to those without children, as Trajan did for Pliny the Younger and Suetonius, thereby freeing them from the inheritance restrictions placed on childless people by the Augustan legislation [Pliny, Epistles X.2; X.94-5; cf. CIL VI.1877 and XI.6354 below].

As with manus-marriage and tutela mulierum, we are mainly dependent upon Gaius for our knowledge of the ius liberorum in classical law.

Presumably women who qualified for the ius liberorum had to submit proof of their child­bearing to the authorities so that their right to act without a tutor would be officially registered. However, only one such application for the ius liberorum actually survives, from mid-third century Oxyrhynchus. Aurelia Thaisous (who also goes by the Greek name Lolliane) asks the prefect to keep her application for the ius liberorum on file in his office.⁴⁶ Literacy was not required for release from guardianship, but few women in Roman Egypt could read, let alone write, and Thaisous’ claim to literacy is meant to show that “she is particularly capable of acting on her own behalf” [Sheridan 1998, 199].

Another document, of four years later, records a business transation of the same Aurelia Thaisous [P.Oxy. XII.1475; see Pestman 1994, 245]· There she is explicitly said to be acting without a guardian by virtue of the ius liberorum.

P.Oxy.

... [There have long been laws], most eminent prefect, which give power to women who have been adorned with the right of three children to have control over their own affairs and to act without a kyrios in the transactions that they undertake, and much more so to women who know letters. And therefore I myself, having been blessed with the honor of a goodly number of children and also being literate and especially being able to write with ease, with exceptional assurance address your greatness through this petition of mine in regard to being able to carry out without hindrance those transac­tions which I undertake henceforth. I ask that you keep this (petition) without verifying it beforehand⁴⁷ in your eminence’s office, in order that I may be aided (by you) and acknowledge always my gratitude to you. Farewell.

I, Aurelia Thaisous, also known as Lolliane, have sent this for handing-in. Year 10, Epeiph 2?⁴⁸

(reply from the prefect’s office) Your petition will be kept in the office.

Though few documents recording legal and economic transactions survive from the Roman west, the ius liberorum is attested on several Latin inscriptions, mostly from Rome itself. This indicates that even if obtaining a tutor’s authorization for legal acts was a formality for most freeborn women, the right to act without a tutor was still considered important.

A marble tablet, dug up in 1554 in a vineyard but now lost, recorded the donation by Statia Irene to Marcus Licinius Timotheus (also spelled Licinnius and Timoteus) of land outside Rome on which a funeral monument had been built.⁴⁹ The donation was made by the legal procedure of mancipatio, as was the similar donation by Julia Monime (in the presence of her tutor) to the collegium of Silvanus (translated in Part III.B above).

Mancipatio is described by Gaius as an “imaginary sale” requiring five adult male Roman citizen witnesses and a scale-holder [Gaius, Inst. I.119—22; Schulz 1951, 344—8]. The person receiving the mancipated item struck the scales with a piece of bronze (here perhaps repre­sented by the sestertius coin) and declared that he had bought the item “by bronze and bronze scales.” Only one witness is mentioned in this inscription (and none in the inscription recording Julia Monime’s donation). By the mid-third century, mancipatio was beginning to fall out of use, and the procedure may not always have been strictly followed.⁵⁰

Statia Irene and Licinius Timotheus conclude their transaction with a stipulation (stipu­latio), a verbal contract in which the stipulating party requested a verbal promise from the other party, who would reply “I solemnly promise” (spondeo} [Crook 1967, 207—8]. By the mid-third century, written documents were being used to supplement and provide evidence for the existence of oral contracts [see Gardner 1993, 182—6]. Here the verbal agreement is recorded in writing, on the stone inscription and also on a document (mentioned at the end of the inscription) which Statia Irene signed and sealed on the day of the transaction (31 July, 252).

CIL VI.10247, 252 C.E.

Statia Irene, having the ius liberorum, has given to M. Licinius Timotheus for the sake of donation and mancipation, for one sestertius coin, the monument which is on the Via Triumphalis between the second and third milestone for those going away from the city on the left side, on Cinna’s hill, and is on the land of Aurelius Primianus, the baker⁵¹ of the priests, men of senatorial status,⁵² and is called (the land) of the Terentiani, next to the monument of the late Claudius Proculus and whatever other neighbors there are and where and whatever people it borders on; with Claudius Dativus holding the scales (and) Cornelius Victor as witness; and she has yielded to vacant possession of the above-mentioned monument.⁵³ And the right of way, access, going around, drawing of water, wreathing and feeding or bringing in the bones of a dead person, dead females or dead males, to that monument shall be permitted.⁵⁴

This above-mentioned monument you, Statia Irene, i.l.h., have given to me, Licinnius Timotheus, by manicipation for one sestertius coin, (and) that about this matter evil intent is absent and will be absent from you (and) your heir and from all those to whom this matter will pertain, (and) that these things were thus correctly given and done and performed, Licinius Timoteus has stipulated (and) Statia Irene, i.l.h., has solemnly promised.

Transacted on the day before the Kalends of August in the consulship of the emperors, our lords, Gallus Augustus for the second time and Volusianus Augustus.

In the same consulship on the same day, I, Statia Irene, i.l.h., have consented, subscribed, and given my seal to the donation of the above­mentioned monument just as has been written above. Transacted.

Because the ius liberorum was an honor as well as a legal benefit, it is sometimes mentioned on inscriptions commemorating women who held it.

Abeiana Balbina was a priestess of the imperial cult (flaminica), and her husband had been a quinquennalis, the highest municipal magistracy, one of the two chief decurions elected every five years to take the census [Dyson 1992, 204—5]. They had been granted the ius liberorum

commune (elsewhere called the ius liberorum communium) This enabled them to inherit fully from each other by will, a privilege not available to couples without children [see Chapter 2, Part I.B]. The name of the emperor who granted the ius liberorum has been obliterated, indi­cating that he suffered a damnatio memoriae (official condemnation of memory) after his death. He was probably Commodus, son of Marcus Aurelius, who was assassinated at the end of 192.

CIL XI.6354 = ILS 6655, late 2nd c.

To Abeiana Balbina, daughter of Gaius, a flaminica of Pisaurum and Ariminum, patrona of the town of the Pitinatian Pisaurensians. To her, in the year when her husband Petinus Aper was quinquennalis, the common people of the city of the Pisaurum (set this up) on account of their meritorious actions. To her the emperor [the name has been obliterated] granted the common right of children (ius commune liberorum). Place given by decree of the decurions (L.d.d.d.)⁵⁵

In the following epitaph from Rome, the freedman Persicus commemorates his wife Cornelia Zosima, also an ex- slave, and their freeborn son, C. Cornelius Persicus.⁵⁶ Persicus had held important posts as an apparitor (public servant), positions which could lead to social advancement for an ambitious freedman. His son had gained equestrian status (the “public horse”), and his wife, Cornelia Zosima, had been granted the ius quattuor liberorum — the “right of four children” rather than “three” because she was a freedwoman [Gaius, Inst. I.194; Part III.A]. The expression “by the favor of Caesar” (beneficio Caesaris) indicates that Cornelia Zosima, like Abeiana Balbina, had received the ius liberorum as a personal benefit from the Emperor, an interesting example of an imperial grant of the ius liberorum to a former slave [cf. Arjava 1996, 78].

CIL VI.1877 (ILS 1910), late 1st c. C.E.

The freedman Persicus, who was manumitted by a consilium before the Caesar Domitian acting in a procuratorial capacity during his (Domitian's) second consulship,⁵⁷ was employed in two companies of public servants for the consuls, the company of summoners and the company of lictors, (and set this up) for his son C. Cornelius Persicus, who had the public horse, (and) for Cornelia Zosima, his (the son's) mother, who had the right of four chil­dren by the favor of Caesar, and for his and their freedmen and freedwomen and their descendants.

The following semi-literate inscription was found on marble tablet at Rome, erected by the wife of an imperial freedman as a tomb monument for herself, her husband, and two of her children, whose nomenclature indicates that they were freeborn but illegitimate (presum­ably born while their father was still a slave; see above for a similar situation). Women did not require a tutor’s authorization to set up a gravestone, and it appears that the only reason Septimia Dionisias mentions her possession of the ius liberorum is because she is proud of it, as she is also of her frugality in saving enough to afford this funerary monument. She may have been a former slave herself (in which case she would had to have borne four children rather than three) or the descendant of freedmen. The fact that she herself has liberti who are given burial rights in her tomb is a further indication of the social success of which she is so proud.

The Latin of the inscription contains a number of grammatical and spelling errors and is not fully intelligible (note, for instance, the variations in spelling of the nomen·· Dionisias herself has the correct form Septimia; her son Venerius is Setimius, and her daughter’s name, originally spelled Setimia, was corrected by squeezing the “p” in above the line). The inscrip­tion apparently dates to the third century [Weaver 1972, 24, note 2].

CIL VI.10246, 3rd c.

Septimia Dionisias, having the ius liberorum, in this little Peladian place of confinement⁵⁸ with a little building and a monument which I built from the ground out of my own frugality for me and my husband, Titus the freedman of Augustus and for my children, Setimius Venerius and Septimia Efesia, and I order that it not go out of my name; but if anyone has broken the law of my passing (preteriti mei) he shall bear in the name of punishment (a fine of) 50,000 denarii.⁵⁹ (For my) freedmen and freedwomen (and) their descendants.

A number of Greek inscriptions commemorating women in Greece and Asia Minor mention that the women held the dikaion teknon [see Spawforth 1985, 192, 207—8, 234; van Bremen 1996, 226—8]. These were women of the local elites, many of whom had received Roman citizenship even before the universal grant of Caracalla. The following inscription from Ephesus was inscribed on a sarcophagus, and records a legal transaction in which Claudia Antonia Tatiane grants her brother⁶⁰ and his wife right of burial in her heroon (burial shrine). As with Statia Irene above, possession of the ius liberorum is mentioned in order to give validation to the transaction and demonstrate the woman's right to act on her own. Claudia Antonia Tatiane and her brother were Roman citizens and of equestrian status, as his title (kratistos, “most excellent”) indicates. She is known from other inscriptions for her bene­factions [van Bremen 1996, 227]. The sarcophagus on which this Greek inscription was written may have been that of Aemilius Aristides and his wife.⁶¹

SEG IV.544, 204 C.E.

Claudia Antonia Tatiane greetings to the most excellent Aemilius Aristides. I grant to you, my lord brother, [the.. sarcophagus] in my heroon in Ephesus before the [Magnesian] Gate, in which to bury your wife. I have written this letter through my slave Dionysios, which I also myself have subscribed, in the consulship of Fabius Chilo for the second time and An[nius Libo... you have the power to keep it] or to put it away into what­ever archives you wish, even without my being present. Cl. Antonia Tatiane, having the right of children, I have ordered [... it to happen... just as] it has been written above, and I bid you farewell, my lord.

And it was put into the archives on the tenth day before the Kalends of December in the consulship of Fabius Chilo [and Annius Libo].

The next inscription, written in Latin, is an epitaph for a Christian woman, set up by her husband, a Christian priest (presbyter). It was found at Nicopolis in the province of Moesia (Bulgaria), near Aurelia Marcellina's hometown of Oescus.⁶² The use of the Christian chi rho symbol, which appears in art and inscriptions only after the victory of Constantine over Maxentius, indicates that the epitaph is later than 312, though probably before 400. Thus even in the fourth century, among Christians, the ius liberorum was an honor worth noting on a woman's tomb [see Evans Grubbs 1995, 81]

CIL III.755, 4th c.

[chi rho symbol]

To the good memory of Aurelia Marcellina from Oescus, a most dutiful woman, who had the ius liberorum, formerly the daughter of Marcellinus, ex­prefect of the legion Tertia Gallica, at Danaba (near) Damascus, who lived fifty years. The priest Turranius Leontius made this while alive as a memo­rial for his well-deserving wife and for himself.