E Tutela mulierum in late antiquity

Tutela mulierum disappears from Roman legal sources in the early fourth century. The latest references appear in the Rules of Ulpian [Part III.A] and in a fragmentary collection of legal sources now known as the Vatican Fragments (Fragmenta Vaticana), which includes selections from classical jurists and imperial rescripts.

Cod. Theod. 3.17.2, 31 December, 326

Constantine Augustus and the Caesar to the people:

A paternal uncle related by blood is not to refuse tutela legitima over women. Given on the day before the Kalends of January in the seventh consulship of the Augustus himself and the consulship of the Caesar.

But in the fifth century, the eastern emperor Leo interpreted Constantine’s law as referring to tutela pupillarum, the guardianship of fatherless minor women, rather than tutela mulierum [Cod. Just. 5.30.3, 472]. Scholars who have written recently on women in late Roman law agree with Leo [Beaucamp 1992, 261; Evans Grubbs 1995, 327; Arjava 1996, 116-17].

In contrast with the lack of legal references to tutela mulierum, late Roman legal sources have a good deal to say about the guardianship of fatherless minors, both those below puberty (who had a tutor impuberum) and those above puberty but below twenty-five, the age of majority (who had a curator minorum).

Even women who had earned the ius liberorum, which gave them the right to conduct their affairs without a tutor mulierum [see Part III.D], had to have a curator if they had not yet attained the legal age of twenty-five:

Cod. Just. 5.37.12, 5 October, 241

Emperor Gordian Augustus to Octaviana:

Only if you have attained legal age should you go to law about those matters which you allege have been done by the tutor in regard to fraudu­lent administration or have been conducted negligently by the curators of those to whom you have succeeded. For you are not unaware that an abun­dance of children does not provide much support to women in regard to managing their own affairs, if they are below legal age. Posted on the third day before the Nones of October in the second consulship of Gordian Augustus and the consulship of Pompeianus.

Octaviana had inherited the estate of a minor whose property had been mismanaged by his guardians, and she wished to bring charges against these guardians [see Chapter 5, Part II on accusations against guardians]. But the emperor tells her that she cannot act for herself if she is still under twenty-five. Her “abundance of children” (fecunditatem liberorum) refers to possession of the ius liberorum, which would have freed her from a tutor mulierum but not from a curator minorum [Arjava 1996, 115]. Other rescripts rule that a minor (male or female) may appoint a procurator to handle his or her legal affairs, with the approval of the curator minorum or tutor impuberum [cf.

By the mid-third century the curator minorum seems to have superseded the tutor mulierum for women below the age of twenty-five.⁶⁶ (A law of Constantine allowed young women at age eighteen to petition for the venia aetatis, the “indulgence of legal age”, which would release them from the need for a curator; see Part IV.B). By the time they turned twenty-five and were free of a curator's supervision, most women would be married, and many would be eligible for the ius liberorum by having had three children [Arjava 1997, 29].

In earlier Roman law, a woman's husband was not also her tutor; on the contrary, the orig­inal purpose of tutela mulierum had been to safeguard the woman's property for her natal family against its possible depredation by non-relatives, including her husband. This purpose had been long forgotten, and Claudius' abolition of agnate tutela, along with second-century legislation favoring the transmission of a mother's estate to her children, meant that a woman's natal family no longer could control her disposition of property.

Some later imperial legal sources recognize the husband as representing his wife in public situations, particularly in court. A rescript of Marcus Aurelius and Iucius Verus allows a woman Sextilia to be represented through her husband in litigation over a financial matter, assuming that she formally appoints him her procurator [Cod. Just. 2.12.2, 161]. Eighty years later, Gordian told a petitioner that the fact that his opponent, a married woman under twenty-five, appointed her husband as procurator without her curator's consent does not provide grounds for overturning the court's decision in her favor [Cod.

In the early fourth century, Constantine ruled that a husband could represent his wife in court as her procurator, even if she had not formally appointed him by mandate [Cod. Just. 2.12.21, 315; see Part IV.B]. In two other laws he assumed that husbands acted legally for their wives [Cod. Theod. 3.5.3, 330; cf. 3.1.3 of the emperor Julian]. This was in line with social practice in the eastern Mediterranean, where the husband was generally his wife's kyrios. This does not mean that Constantine actually made the husband his wife's tutor, or was directly influenced by eastern legal systems.⁶⁷ Rather, he granted de facto recognition to a social practice which already existed, probably in the west as well as the east, where the husband was considered to represent his wife in public [Beaucamp 1992, 264—6; Evans Grubbs 1995, 326-8].

The classical Roman tutela mulierum may never have been actually abolished by law. (At any rate, no such law survives, though this could be due to the incomplete preservation of legal sources like the Theodosian Code.) Instead, it faded into desuetude by the end of the fourth century. The ius liberorum lasted longer, but this was because of its importance in inheritance matters, not tutela: women with the ius liberorum had improved succession rights to the property of their intestate children, and couples with the ius commune liberorum could inherit from each other by will.⁶⁸ By the end of the fourth century, the ius liberorum was no longer associated with freedom from tutela mulierum, because tutela mulierum itself was no longer a living legal concept.

The same evolution appears in the papyri from Egypt, where considerable documentary evidence survives.

1      There are only four documents from the fourth through sixth centuries in which women

are said to be acting with a kyrios. In all four, the kyrios is the woman's husband. (This was common practice also in earlier Roman Egypt, unlike the situation in Roman law.)

2      There are almost sixty cases from the same period where women are explicitly said to be acting without a kyrios. Up until the later fourth century they are said to be acting without kyrios because they have the ius liberorum [dikaion teknon). The last reference to the dikaion teknon is in 389. After this, it appears that the reason the women act without kyrios is because they have no husband; in almost all cases, they are clearly widows. Sometimes women who do not have a kyrios are accompanied by a male synestos (“asso­ciate”) in their legal transactions [see P.Oxy. X.1273 in Chapter 2, Part III.A.4 for an example]. Apparently women themselves could serve as synestos: in a divorce agreement of 391 a woman is accompanied by her mother as synestos [P.Stras. III.142; see Chapter 4, Part III.A.5].

3      Thus in late antique Egypt the husband's role took over and eclipsed that of kyrios, and the only way to escape guardianship by a husband-kyrios was via widowhood. Beaucamp sees this as a strengthening of marital control over women: a woman needed her husband's authorization, or at least his consent, for all legal acts which directly affected her property, especially selling land or houses and manumitting slaves.

Though this evolution of the concept of guardianship and of the husband's role was not due to any imperial legislative enactment, the authority granted the husband in his wife's affairs parallels the development in late Roman law, as seen in the legislation of Constantine mentioned above.

IV