D The senatusconsultumVelleianum

Related to the notion that women were somehow “weaker” and in greater need of protection than men was the belief that certain types of transactions and responsibilities were “men's business” and should not be engaged in by women.

Imperial bans on women's “interceding” on behalf of their husbands had already been enacted by Augustus and Claudius, evidently ineffectively. It is relevant that both those emperors had undercut the power of tutela mulierum, Augustus by granting the ius liberorum (which freed women with three children from tutela), and Claudius by abolishing the tutela legitima of agnate kin [See Part III]. The date of the s.c. Velleianum is uncertain, but it was during the reign of either the emperor Claudius (41—54) or Nero (54—68).

Release from a restrictive tutor, though beneficial to women who owned property and engaged in legal and financial transactions, might also have made them, and their property, more vulnerable to the designs of the unscrupulous, including their own husbands.

The first title of the sixteenth book of the Digest is devoted entirely to the senatusconsultum Nelleianum, indicating that it was still relevant to the society of sixth-century Byzantium. All the jurists whose commentaries on the senatusconsultum are cited in the Digest were writing in the third century, about 150 years after the law's passage. The reason they give for the ruling decision, that it was to protect “weak” women, may not have been the Senate's original concern.¹⁰² In the absence of earlier sources, we cannot know.

D.16.1.1 (Paulus): By the senatus consultum Nelleianum it has been most fully expressed that women are not to intercede on anyone else’s behalf. For just as women have by custom been deprived of civic responsibilities and (such responsibilities if undertaken by women) are in general not legally valid,¹⁰³ so much the more should they be deprived of that responsibility in which not only their efforts and their service alone are involved, but also the risk of their family property. Moreover, it seemed right that a woman be aided in such a way that an action be given against the old debtor or against the man who had made the woman financially responsible on his own behalf. For he, rather than the creditor, deceived the woman.

D.16.1.2 pr (Ulpian): And indeed first in the time of the deified Augustus, and soon thereafter in the time of Claudius, it had been prohibited by their edicts that women intercede on behalf of their own husbands.

“In regard to the speech which the consuls Marcus Silanus and Velleus Tutor made concerning what ought to be done about the obligations of women who become answerable for debts on behalf of others, they (the Senate) decided the following about this matter:

Though the law which pertains to providing guarantees and giving loans on behalf of others for whom women have interceded seems to have been stated before in this way: that there should not be an action for recovery of the debt by them (the creditors on whose behalf the women provided guar­antees), nor should a legal action be given against the women, since it is not right that they discharge men’s duties and be bound by obligations of this kind; (however) the Senate thought that those to whom there will be legal recourse on this matter¹⁰⁴ would act correctly and properly if they give their attention to preserving the will of the Senate in this matter.”

The Senate did not forbid women to guarantee the debts of others, but said that women ought not to take on such a responsibility and that therefore creditors who attempted to recover a debt from a woman guarantor should be denied an action against the woman in court. Moreover, it appears that women who did not want the benefit of the law could renounce their right to use the exception that the Senate's decree offered [Beaucamp 1990, 67-8].

Juristic commentary on the senatus consultum Vlleianum discusses the circumstances in which a woman can claim the benefit of the law and so be released from responsibility for the debts of another person which she had guaranteed.

Roman jurists were aware that women themselves might abuse the law. Thus Ulpian, writing over a century after the decree was passed, stresses that it was intended to assist “weak” women, not women who cleverly took advantage of the law in order to cheat credi­tors:

D.16.1.2.2 (Ulpian): Therefore let us examine the words of the Senate’s decree, first having praised the foresight of the most splendid order (the Senate) because it brought aid to women who, on account of the weakness of their sex, had been overcome and thwarted by many incidents of this kind. 3: But it helped them in this way only if they were not engaged in cunning; indeed, the deified (Antoninus) Pius and (Septimius) Severus have issued rescripts to this effect. For it assists those who have been deceived, not those practicing deceit, and there is also such a rescript of Severus in Greek: “The decree of the Senate does not help women who have used deception.” For the weakness of women, not their cunning, deserved help.

The Senate's decree was rather vaguely worded and evidently created some confusion about the circumstances under which women could claim the law's protection and not be liable for another's debts.

Cod. Just. 4.29.2, 11 August, 213

The Emperor Antoninus (Caracalla) Augustus to Nepotiana:

In vain did you attempt to use the legal exception of the Senate’s decree which was made concerning women’s interceding, since you yourself are the principal debtor. For the exception of the Senate’s decree is given to a woman when she herself owes nothing originally, but has interceded on behalf of another debtor with his creditor. If, however, women have obli­gated themselves to others on behalf of their own creditor or have allowed themselves or their own debtor to be made over (for their own debt), they do not have the aid of the Senate's decree. Posted on the third day before the Ides of August in the fourth consulship of the Emperor Antoninus and the consulship of Balbinus.

Cod. Just. 4.29.5, 18 June, 223

The Emperor Alexander Augustus to Popilia:

If your property was pledged by your husband (for a debt) without your consent, it is not under legal obligation. Or if you, with the knowledge of his (female) creditor, consented to the obligation, you are able to use the Senate's decree. But if you allowed your husband to obligate your property as if it were his own, you wanted to deceive the person giving him the loan and therefore you are not aided by the decree of the Senate, which was looking out for women's weakness, not their cunning. Given on the fifteenth day before the Kalends of July in the consulship of Julianus and Crispinus.

Cod.

The Emperors Valerian and Gallienus Augusti to Sepiduca:

If, wishing to give your daughter a dowry, you pledged your property to your son-in-law, you are mistaken in supposing that the benefit of the Senate's decree applies to you. For legal experts thought this reason should be removed from the benefit of the law.¹⁰⁶ Posted on the ninth day before the Kalends of March in the consulship of Tuscus and Bassus.

Like the desire to help a condemned father pay his debts [see D.16.1.21 above], the wish to give a daughter a dowry stems from familial generosity, not financial obligation. Thus the senatusconsultum Vdleianum does not apply.

Sometimes the s.c. Nelleianum could afford protection for a woman, who might otherwise be obligated for the debts or contracts of family members:

Cod. Just. 4.12.1, 12 April, 287

Emperors Diocletian and Maximian Augusti to Asclepiodota:

In vain do you dispute about whether contracts made with your husband have legal standing or not, since it should be sufficient for you, if you did not have any contract in your own name, that you cannot be called into court on behalf of your husband. Because not even if you had interceded on his behalf willingly, could anything be accomplished at law by you on account of the senatusconsultum. Given on the day before the Ides of April in the consulship of Diocletian for the third time and Maximian.

Cod. Just. 4.12.4, 23 August, 301

Emperors Diocletian and Maximian Augusti and the Caesars to Philotera:

Since you relate that in fact you were brought to court as representative of the person of your son (ex persona filii), because you apparently contributed something on behalf of his debts, you are not at all prevented from using your legal defenses in the presence of the man who has legal cognizance over this matter, so that he shall not allow you to be pressed for the payment of someone else’s debts. Given on the tenth day before the Kalends of September in the consulship of Titianus and Nepotianus.

In the late fourth century, the emperor Theodosius repeated the classical prohibition on women “intervening” on behalf of others. This is an excerpt from a long law, which may have referred to a particular case involving inheritance claims in which a woman was taking an active role:

Cod. Theod. 2.12.5, 28 September, 393

Theodosius, Arcadius and Honorius Augusti to Rufinus, praetorian prefect:

In no way are women able to act (legally) beyond what is fitting for them, or to intervene on behalf of other persons. Given at Constantinople on the fourth day before the Kalends of October in the third consulship of Theodosius and the consulship of Abundantius.¹⁰⁷

The rescripts translated above were all written after 212, when the Edict of Caracalla granted Roman citizenship to virtually all free inhabitants of the Empire. Thus their recipi­ents were Roman citizens, and could be expected to know of and respect Roman legal rules, including the s.c. Nelleianum. One would expect that before 212, provincials who were not Roman citizens would not care about the Senate’s decree. But one provincial woman was worried enough about its ramifications to approach the emperors for clarification.

In 199—200, Septimius Severus and his son Caracalla were in Egypt. A number of impe­rial decisions addressed to or concerning those living in Egypt are known from that year, reflecting the importance of an imperial visit to a province: locals would take advantage of the emperor’s proximity to send petitions or even bring legal actions before his court. Among the imperial decisions dating to 199—200 are thirteen short responses found on a single sheet of papyrus, with the heading “In Alexandria. Copy of the apokrimata posted in the stoa of the gymnasium in the eighth year, 18 Phamenoth,”¹⁰⁸ with the emperors’ names and titles written in a different hand. Then follow the thirteen decisions, each addressed to a specific recipient or recipients.¹⁰⁹ What exactly apokrimata were is a matter of debate, but clearly the decisions were made by the emperors while in Egypt and responded to the concerns of provincials, not necessarily only those who were residents of Egypt but also perhaps those from neighboring provinces who traveled to Alexandria to get an imperial ruling.¹¹⁰ The original responses may have been in Latin, of which the papyrus gives a Greek translation.¹¹¹

The fifth apokrima is addressed to a woman, the beginning of whose name is lost; it ended in —thalge)-¹ But from what does remain of the name, and from the name of her father (Ambrelos) and son (Abdomanchos), it appears that the recipient was of Arabic origin [Westerman-Schiller 1954, 18].

P.Col. VI.123, lines 18-20, 200 C.E.

To [Ma]thalge daughter of Ambrelos, through her son Abdomanchos:

Women are not prevented from borrowing money and from making payments on behalf of others.

In keeping with Greco-Roman ideas of feminine modesty [see Part IV.B], (Ma)halge approached the emperors through her son rather than appearing herself.¹¹³ She is evidently not a Roman citizen; no traces of a nomen appear, and it would be surprising to find a woman of Semitic origin with Roman citizenship at this date. Her question suggests knowledge of the s.c. Velleianum and concern that something she wants to do might not be valid [Gaudemet 1959 (1979), 212—13]. It is surprising that a non-Roman woman in pre-212 Egypt would be worried about the legality of borrowing money and paying on others' behalf: such activities were allowable under Greco-Egyptian law. Perhaps the custom in her homeland (if she was not from Egypt) was more restrictive [Schiller in Schiller-Westerman 1954, 64]. In the second century, Babatha, a Jewish resident of the newly created Roman province of Arabia, had utilized the Roman legal system to take action against her son's guardians [Chapter 5, Part II.B.2].

In any case, the imperial reply is in keeping with Roman law: such activities are not forbidden [Schiller in Schiller-Westerman 1954, 64—5]. A woman could borrow money on her own account and then use it to pay someone else's debt. What she was not supposed to do was pledge herself as surety for the debt of another person. In her case, the s.c. Velleianum did not apply and (Ma)thalge could use the money she had borrowed as she saw fit.

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