Roman Law

Brian Compton

Miami University

Reading Plautus' Aulularia introduces the audience to a number of issues which have legal bearing in Roman society. Some of these issues had been around for years before Plautus, others were not officially codified until after his time. Nevertheless, Plautus refers to legal matters in the play with a level of certainty, so there was always legal tradition even if it wasn't in writing. The areas that I will look at in the play are: the iniuria of rape and a victim's legal recourses; the laws of dowries; the delict of theft and its legal recourses; and the laws of inheritance.

NB: a number of the laws referred to here post-date Plautus, such as the lex Julia de vi publica. However, as is usual in ancient societies, a rich tradition predated the written recording of most laws, so the law itself may well reflect previous legal tradition (judiciary rulings, custom, and, of course, the mos maiorum). Thus, we can assume that Plautus drew his knowledge from these traditions, and we will look at the written law only as a concrete document which solidified those traditions for history's sake.

Iniuria of rape:

In line 28 (the Lars prologue), the Lars states that "eam compressit de summo adulescens loco," (a youth from high standing [Lyconides] has raped her [Phaedria, Euclio's daughter]). This creates a situation of iniuria, which is the category of personal wrong. Under the Republican government, rape was considered in this category along with assault, libel, and treating a debtor as insolvent when he was not, along with other injuries to body or reputation. It would have been treated as any other case of iniuria then; the judge of the case would be required to assess whatever damages he saw fit. Previously, the prosecution had the right to fixed payments based on the actual injury: 300 asses for a broken bone, 150 asses if the broken bone belonged to a slave, and 25 asses for any other injury. Watson (1975: 79), notes that the minor amount for the last two actions usually meant they were disregarded, and at this time rape would have fallen in the last of those categories. If any other action were taken against a rapist by a woman's family, those who took the action would be subject to criminal prosecution.

Things began to change in the later Republic. A reference is made to a lex Plautia de vi that was used to prosecute Catiline in an instance prior to his conspiracy, a charge on which he was acquitted. However, we have nothing else from the Romans which says more about that particular law. Still, it is enough to know that a woman had legal recourse in the instance of rape, and that it was not treated as simply iniuria. Later came the lex Julia de vi publica, about which we know more. Created most likely during Julius Caesar's dictatorship, this gave the woman the right to prosecute her rapist. It also allowed the woman's father and, if married, her husband to seek damages. Finally, under later interpretations, it allowed the father of the woman's betrothed to seek damages if her father did not.

Also, no time limit was set for starting action against a rapist, unlike the charge of adultery which had a limit of five years. Lastly, the charge of rape was legally treated as a capital charge, with all the regular punishments (death or exile) that went along with the category. Under Hadrian, this went so far that families who took it upon themselves to enact punishment prior to a court hearing were treated very leniently by the emperor and his courts (Gardner, 1991: 118-119).

Did this solve all the problems of dealing justice to rapists? Not exactly; with the Augustan laws against adultery, rapists could defend themselves by saying the sex was consensual. If they succeeded, they escaped capital punishment (though they still had to face possible charges of adultery or stuprum [extra-marital sex]), and could counter with an iniuria charge of calumnia (wrongful and injurious prosecution). Also, the woman was now on the receiving end of adultery or stuprum prosecution. Finally, her reputation was left sullied, and if she were unmarried her chances of getting married were drastically cut. Thus, women who were raped were counseled that they ought to be absolutely sure they could prove their case. Otherwise, it was not in their best interest to bring charges to court against their rapist. This was especially true for prostitutes or women of a lower class, for they would not even have the satisfaction of seeing the man receive stuprum or adultery charges. Relations with them were legally considered in quas stuprum non committitur, "in which unlawful relation is not committed" (Gardner, 1991: 121).

The customs of dowries:

In line 238, Euclio informs Megadorus that he cannot give a dowry for his daughter's wedding, to which Megadorus informally agrees. In line 256, Euclio and Megadorus put a formal binding on the contract with these words:

Megadorus: Sponden ergo?

Euclio: Spondeo.

By these words, the traditional and necessary ending to any oral agreement, Megadorus and Euclio have a legal contract whereby Euclio agrees to give Megadorus no dowry. This is an example of one of the three types of dowries, the dotis dictio. In this form, the father of the bride states his intended payment in the form of the question, "Do you accept (fill in the blank)?" The groom then responds, "I accept (fill in the blank)," if he agrees to it, and usually he would; there are few to no records of bargaining over a dowry. This form of the dowry would normally be used at the time of betrothal; when the groom asks for a woman's hand in marriage, her father would agree to give her to him along with a stated dowry, which is what Euclio and Megadorus have acted out in the play.

The dotis dictio was an oddity in the world of the Roman contract. Normally, contracts were set up to create a quid pro quo situation. All sides would bring something into the agreement which would be mutually beneficial to the parties involved. In return, everyone in the contract would be required to deliver their portion and do so according to certain stipulations within the contract, stipulations on which the parties would agree prior to closing the deal. In the dotis dictio, however, only the giver asked a question, that of acceptance; the receiver did not ask the normal question of promise. In this sense, it was a one-sided contract, and the only one of its kind accepted under Roman law. And, as it was a contract, the courts recognized that actions could be taken on it; for instance, once the dowry was given, if the husband did not marry his betrothed, the girl's father could sue the groom or his paterfamilias for return of the dowry. In like manner, if the bride's father withheld the dowry for an excessive period of time, the groom or his paterfamilias, whichever was more instrumental in making the contract, would have the right to sue for their rightful property (and once it was promised, the dowry legally belonged to the groom and his familia) (Gardner, 1986: 99; Watson, 1975: 37).

Another form of the dowry is the dotis promissio. This was another verbal contract, or stipulatio, but this was of the more usual nature. First, the husband asked if his bride's father agreed to give a certain amount, and the father would then give his assent. He would then ask if the husband accepted the amount promised, to which he would give his assent. This would all follow the prescribed rules for a contract, ending with the "spondesne...spondeo," question and answer, as above.

This differs from the dotis dictio in two ways. First, the dictio, as said above, is one-sided. Secondly, the promissio could be introduced by the husband-to-be or by the bride's father or family; the dictio could only be introduced by the bride's family, again following the idea of it's one-sidedness. Over time, this form and the dotis dictio were merged together, and in Justinian's Digest, the the dictio was not even present.

The final, and more common, form of dowry was the dotis datio, the "giving of the dowry." This could come in two forms, moveable or immoveable property. Moveable property would include liquid money, livestock, art objects, etc. Immoveable property would include land, houses, and the like. If the property is moveable, the father would be required to turn it over in three annual payments. Gardner (1991: 100-1) makes note of two historical figures in this situation. The first is Scipio Aemilianus, who assumed the payment of his aunts' dowries in the will of his adopted grandmother; he paid them in full within the first year, even though he had three years to do so. The second is Cicero, who married off his daughter to Dolabella in 50 B.C., and in 47 noted in a letter that he was worrying about making the third payment to his son-in-law.

The fact that Euclio does not give a dowry to Megadorus is unusual but not illegal. Nowhere in Roman law does it say that a father must provide a dowry for his daughter, so long as the groom agrees to such an arrangement. It would, however, make a risky situation for the bride and her father. The dowry was almost an insurance policy that the marriage would last until death do the husband and wife part. If the husband were to divorce his wife for any reason not resulting from sexual or other immoralities on her part, half the dowry would be forfeit to her upon completion of the divorce, and in later years her family could take action to gain back its entirety. Without the dowry, Megadorus would have no restrictions if he should choose to divorce Phaedria. However, as it was his insistance not to have her bring a dowry, it is a risk which Euclio and Phaedria should feel fairly comfortable in taking.

The delict of theft:

In line 713, Euclio discovers that a thief has stolen his gold and he gives his standard complaint of "Perii, interii, occidi, " "I have perished, I have been ruined, I have died," as he has done before when he thinks his money has been stolen. In Rome, that would be the common response to thievery. There was no police force in Rome until the early Empire, and even then it was not nearly the idea of a "police force" as we today would envision it. It was the duty of the victim to find the perpetrator and bring action against the individual in court (Morey, 1889: 379).

Theft of property was included in the legal category of delicts, those acts which are criminal but not in the interest of the state to intervene on its own, as opposed to a capital crime, where the state had direct interest and involved itself directly. This would be equal to modern-day torts, appropriately since the category of delicts actually evolved into English tort, or civil, law, and it is from there that the Americas developed their tort law system (Watson, 1975: 3, 76-77). Everything in the category of delicts was actionable, but usually it was only the right of the victim to bring the action; such was the case with theft.

In order for someone to bring a charge of theft, or furtum, against another, the person starting the action must establish two things: a) malicious intent in the taking of the thing; and b) an actual taking of the thing. The intent stems from the thief's knowledge that he is taking another's property without permission from the owner, and that intent is complete upon the gaining of the thing stolen.

There are three main types of theft recognized in Roman law. The first is rei furtum, the taking of an actual object (this is the type Euclio has experienced). The second is usus furtum, which is the personal use of something entrusted to one's care without the knowledge or consent of the owner of the entrusted thing; Morey (1889: 378) uses the example of a person who borrows something for a stated purpose and then uses it for another undeclared purpose. The final category is possessionis furtum, which usually involved the theft of something used as a guarantee on payment of a debt; in this situation, the actual owner of the property could be accused of thievery if they misappropriated or otherwise negatively affected the collateral of a debt. In order to gain back what was stolen, the victim had to take an action against the thief; this would be separate from an action to gain penal fines from the thief.

Theft was further broken down into two other categories, these for the sake of determining the amount of damages. Furtum manifestum existed when the victim caught the thief at or near the sight of the crime. If this was the case, the courts required the thief to turn over in money or goods four times the amount of the property stolen. The other kind of theft was furtum nec manifestum, where the thief was not caught at the scene of the crime. This time, the thief was only required to pay twice the amount. Why was this the case? The fact that the individual got his or her property back should have been enough; to ensure that the victim would feel appropriately avenged, though, the courts added the penalties, and the victim would more than likely feel more need for vengance in the former case than in the latter. Also, this penalty would be applied to any accomplices involved in the theft.

Other individuals could be considered victims for the sake of a theft case. If someone was entitled to the use of the fruits of a thing stolen (for example, produce stolen from a farmer's field that the farmer might owe to another person), that person could bring an action. If what was stolen was part of a contract with other persons, they could also bring an action. This would include such things as promised dowry; the husband or his paterfamilias could bring an action against the thief, along with the father of the bride.

In the Twelve Tables, Rome's oldest set of laws, a number of procedures were set for the seeking of thieves. An official searcher was appointed, and was required to wear only a loincloth and carry a platter. This search, called the lance et licio, was a legal way to make a theft manifestum; if the searcher found the property, the court considered the thief caught at the scene of the crime and was fined appropriately. Also, if the stolen thing was not found by the searcher, and then later found on a person's property, the victim could take action against the owner of the property and gain three times the value of what was stolen. The property owner then had the right of action against the person who put the stolen goods there (so long as the property owner himself was not the thief), and this was called the furtum oblatum. By this action, he could recover the money he lost.

This law created some very interesting situations, because the actions were taken to recover the value of the thing stolen. Watson (1975: 70), quotes an example from the jurist Ulpian: if someone drove their mule amongst another man's mares for the purposes of mating, that could be considered theft, but it was illogical under the law because it was impossible to assess the value of what was stolen. Thus, we can see that when the laws on theft came into modern use, fines were not assigned but it is necessary to restore the stolen property and the thief is otherwise punished.

The laws of inheritance:

In line 798, Lyconides reveals that he and Euclio's daughter are new parents, after telling Euclio beforehand that he had raped his daughter. This creates a peculiar situation, because the child of Lyconides and Phaedria is a boy and could one day lay legal claim to property as an intestate heir.

In Roman law, there were two recognized forms of inheriting property and the family sacra (family gods), testacy and intestacy. Testate inheritance was created through the making of a will that named the heirs of the property. Intestate inheritance occured in the absence of a will. In either case, certain rules existed for the passing down of property. These rules existed to insure the protection of property, the passing down of family sacra, and the naming of an heir.

In a will, the property owner had to name a full Roman citizen as an heir to the family property. The only exception to this rule was a slave; a property owner could name one of his slaves as heir (thereby making them free), or he could name another person's slave as heir (making the slave heir but his or her master the receiver of the property). In using the term "full Roman citizen," this was not in the legal sense of someone outside the potestas of another, but someone who was born on Roman soil to free parents. Thus, both men and women could be heirs to family fortunes, though the passing of the sacra was strictly withheld from females; only a paterfamilias had the right to maintain the central worship of the family's gods and ancestors. Also, unborn children could be named heirs if their arrival was expected or even merely hoped for; examples of wills have been found where multiple provisions were made for children not yet even conceived, with increasing amounts given to each if they happened to be male (Gardner, 1991: 164).

The wording in the will had to be extremely correct, with one of two forms being used. The first, an English translation of the hortatory subjunctive, stated "Let (name of heir) be my heir." The second, a bit more forceful, stated "I order (name of heir) to be my heir." All other words prior to or following this statement were null and void if any other sentence was used, and also if no specific person were named.

Then there are the types of heirs. The first were necessarii, which were the testator's slaves; they were named necessarii because they of necessity had to accept the inheritance (and any debts incurred by its previous owner). The second were the sui et necessarii, who were descendents of the testator. In the beginning they also had no choice in the matter of acceptance, but in later law they had escapes from their obligation which they could employ. The third category consisted of extranei, or individuals outside the testator's familia. These individuals always had the right to turn down the inheritance, which they would especially do if there were debts attached to it. Finally, there were substituti; these were people from any of the above categories who were named in the will as heir if the primary heir or subsequent heirs could not (or would not) assume the inheritance. Usually this was done as a precaution against the death of an heir; however, when family members were allowed to refuse inheritance, the testator would name a slave as the last substitutus, since he or she had no choice but to accept the inheritance (unless s/he died).

In 169 B.C.E., the lex Voconia concerning wills and testaments was passed. Part of this legislation forbade members of the senatores from willing any of their property to a woman. This meant that all heirs to a property had to be male. Again, while this represents the misogyny of the Roman aristocracy, this probably also solidified a previous practice of custom within their ranks and possibly amongst the population in general. However, this only applied to the willing of inheritance. If there was no will, then things would follow as normal.

Intestate inheritance, or inheritance sans a last will and testament, was much more common in the early days of Rome, and was probably still so during Plautus' time. In this instance, there were three groups who could lay claim to the property of the deceased. The first were the sui heredes, the children of the deceased; they had primary claim. The second were the agnates, or those closest to the deceased through his male relations; thus, a brother and his children would have claim, whereas a sister would not. Finally, if there was no one in either of these categories to accept the inheritance, it was offered to the possesor's gens, people in the extended family but not in the immediate family. Praetorian decrees later broadened this into five categories, in order of right of claim: liberi (children); legitimi (agnates, emancipated children, and patrons of freedwomen); cognates (any blood relative of the deceased); the family of the deceased's patron (usually only if the deceased was a freedman); and husbands and wives.

Thus it is that the child of Lyconides would have claim to Euclio's property. By ius civile (civil law), Euclio's property would pass to Phaedria and, by extension, to Lyconides. Upon her death, her child would be the next in line to inherit the family property and sacra. As this is the case, it is important that Euclio make Lycondies his son-in-law, as it legitamizes his grandson's claim to his property.

A Selected Bibliography

Gardner, Jane F. Women in Roman Law and Society. Bloomington, Indianapolis: Indiana University Press, 1986 (1991).

Morey, William C. Outlines of Roman Law. New York, London: G.P. Putnam's Sons, The Knickerbocker Press, 1884 (1889).

Watson, Alan. The Law of the Ancient Romans. Dallas: Southern Methodist University Press, 1970 (1975).

For Further Information

Rufner, Thomas. Ius Romanum. A wonderful site for links.

Vigneron, Roger, Prof. Dr. and Dr. Jean-Francois Gerkens. Revue Internationale Des Droits De L'antiquite. Articles on Roman law in various languages.

Pomoerium. More links, but many of them are not found through Ius Romanum.