Published online by Cambridge University Press: 08 May 2015
This is a study of dotal arrangements and the disposition of matrimonial property as they are represented in Cicero’s correspondence. From Cicero’s explanations, suggestions and worries about his daughter’s third marriage and his own fortunes, I have tried to piece together a picture of the extent and function of a wife’s contribution to the economy of a senatorial marriage, and to gauge the scope of her material obligations to the children. For this purpose the letters are of particular value: Cicero wrote to and about his wife Terentia during his exile and, later, during a period of civil conflict, when he was not only absent from Rome, but in fear of confiscation. His situation obliged him to commit to writing those financial concerns which would otherwise have left no record. The correspondence exposes not only the arrangements actually made for the use of property within marriage, but the conventions which determined them.
2 The story of Sp. Carvilius Ruga is told, with varying dates and details by Val. Max.2.1.4; Aul. Gell. 4.3.2, 17.21.44; Dion. Hal. 2.25.7; Plut. Comp. Thes./Rom. 6.6, Lyc./Numa 3.11.
The original character of the actio rei uxoriae and the significance of the case of Carvilius Ruga have been much discussed by modern scholars. A few of the key works are: Esmein, A., ‘La nature originelle de Taction rei uxoriae’, NRHD 17 (1893), 145–71;Google Scholar R. Leonhard, s.v. dos RE vol.5.2 (1905), esp. 1591-93; Watson, A., ‘The divorce of Carvilius Ruga’, RHD 33 (1965), 38–50;Google ScholarYaron, R., ‘De divortio varia’, Tijd. v. Rechts. 32 (1964), 533–57.CrossRefGoogle Scholar
3 Probably part of the lex Iulia de adulteriis coercendis of 18 B.C. — Gai. 2.63, Paul. 21b.2. See Weiss, E., ‘Leges Iuliae’ RE 12 (1925), 2363 f. on the question of which law is meant by the l. Iulia defundo dotali.Google Scholar
5 Fam. 14.4.4.
6 Possibly by manumission inter amicos, as Shackleton, D.R. Bailey suggests (Cicero: Epistulae ad Familiares (Cambridge 1977) ad loc.).Google Scholar On this form of manumission see Buckland, W.W., The Roman Law of Slavery (Cambridge 1908),Google Scholar ch. XIX or Schulz, F., Principles of Roman Law (Oxford 1951 ), 83–4.Google Scholar
7 ‘Ceterorum servorum ea causa est ut, si res a nobis abisset, liberti nostri essent, si obtinere potuissent; sin ad nos pertinerent, servirent, praeterquam oppido pauci.’
8 This was the case even after Augustan limitations on the husband's right to alienate or mortgage dotal land: Gai.2.63.
9 Cf. Polybius 31.27.4: όθεν εδει τον Σκιπίωνα διαλύειν τοϋ[το] το χρ'εος ταίς του πατρός άδελφαϊς, of the remaining dowry payable for Scipio’s adoptive aunts, which, as the subsequent account shows, was certainly given to their husbands. Consider, too, the many references in section III below to Tulliae dos, though her father paid it and Dolabella received it.
Ulpian, as quoted in D. 2.7.16, referred to the traditional view of dos as a quasipatrimony, as evidenced by its possible use for funereal purposes.
In post-classical law, there were other statements acknowledging the equivocal character ofdos — Tryphonius in D. 23.3.75; Just. Codex V. 12.30 pr. and 1 ; Boethius on Top. 6.17.65 — but these had little effect on the formal law. Like everyday speech, they were a common-sense recognition of the fact that dowry was in some sense the wife’s, even though the husband was, for the duration of the marriage, the undoubted owner at law.
10 Again see Shackleton Bailey ad loc..
11 Plut. C. Gracch. 17.5; Javolenus is cited at D. 24.3.66.
12 There is no agreement on the subject. See Mommsen, Straafr. (1899) 1010,Google Scholar and the more recent articles by Daube, D., ‘Licinnia’s Dowry’, Studi in Onore di Biondo Biondi 1 (Milan 1965), 199–212Google Scholar and Wieacker, F., Sein und Werden im Recht. Festgabe von Lűtow (1970), 211–14.Google Scholar W. Waldstein’s thorough and, to my mind, convincing treatment in : Zum Fall der “dos Licinniae’”, Index. Quaderni Cameni di Studi Romanistici 2 (Naples 1972), 343-61 dissents from the conclusions of Daube and Wieacker: he thinks there can be ‘no doubt’ that Licinnia did receive her dowry and that this line of reasoning prevailed in all subsequent rulings.
13 On this, see Fuhrmann under ‘publicatio’ in RE 23.2, esp. 2491-508; and, for the later ruling, D.). 46.1.47; 48.23.3.
14 ‘Tu quid egeris nescio, utrum aliquid teneas an, quod metuo, plane sis spoliata’: Fam. 14.4.4.
15 Of which her half-sister Fabia was a priestess: Asconius 91.19.
16 Cf. Cic. Sest. 69.145: eversa domus est. fortunae vexatae, dissipati liberi, raptata coniux.
18 E.g.Fam. 14.4.3; 14.3.2.
20 Fam. 14.3.2.
21 Fam. 14.2.3: ‘quod de domo scribis, hoc est de area’; Att. 3.15.
22 Fam. 14.2.3.
23 Fam. 14.1.5.
24 E.g. Fam. 126.96.36.199. He need not have worried — Piso worked energetically for his return.
26 That is, it followed the same sequence as the determination of intestate hereditary succession: Gai. 1.155 ff.. Consider also the reasoning recorded by Gaius 1.165 on the extension of the classification of tutela legitima to that of the tutela of a patron or his descendants over freedwomen, whichwas based on the Twelve Tables ruling on the succession of patrons to the estates of liberti/libertae dying intestate: .. ‘crediderunt veteres voluisse legem etiam tutelas ad eos pertinere, quia et agnatos, quod ad hereditatem vocavit, eosdem et tutores esse iusserat’.
27 Ulpian 11.27 — and see Gai. 1.192 on the survival of the right of tutores legitimi to determine whether the woman might make a will, alienate res mancipi or undertake obligations:.. ‘ut, quia ad eos intestatarum mortuarum hereditates pertinent, neque per testamentum excludantur ab hereditate neque alienatis pretiosioribus rebus susceptoque aere alieno minus locuples ad eos hereditas perveniat‘.
28 Gai. 2.102 ff.; and see Jolowicz (above, note 4) 253 ff..
29 Cic. Top. 4.18; Gai. 1.115a, 2.112.
30 Cic.Off. 1.25.85 and Aulus Gellius5.13.2and5.19.10 testify to the development of the attitude which culminated in (e.g.) Inst. 1.25. Again, see Sachers (above, note 25), esp. 1499-1500, as well as Thomas, J.A.C., Textbook ofRoman Law (Oxford 1976), 454 ff. on the development of actions against fraudulent tutores impuberum — cf. Gai. 1.191.Google Scholar
31 Ulp. Tit. 11.25: ‘pupillorum pupillarumque tutores et negotia gerunt et auctoritatem interponunt: mulierum autem tutores auctoritatem dumtaxat interponunt.’ Gai. 1.190 (below, note 35) is also relevant.
32 Three in the case of ingenuae, four for libertae — by the provision of the lex Iulia of 18 B.C. and the lex Papia Poppaea of A.D. 9: Gai. 1.145.
33 Gai. 1.147, 171.
34 This is the implication of Gai. 1.168.
35 Gai. 1.190:.. ‘mulieres enim quae perfectae aetatis sunt, ipsae sibi negotia tractant, et in quibusdam causis dicis gratia tutor interponit auctoritatem suam, saepe etiam invitus auctor fieri a praetore cogitur.’
36 Fam. 188.8.131.52; Fam. 14.1.5.
37 Fam. 14.1.5.
38 See, again, Gai. 1.155 ff. and 165 and notes 25 to 27 above.
39 The P. Terentius Hispo with whom Cicero was on close terms (Fam. 13.65) — and whom he described in Att. 11.10 as meus necessarius — might have been a relation of Terentia, but it need not follow that he was her tutor agnatus. Tutores could also be appointed by testament of the paterfamilias: Gai. 1.144.
40 Cic. Top. 4.23; Gai. 2.96, 139.
41 See e.g. Blackstone’s Commentaries on the Laws of England 1. ch. 15: ‘By marriage, the husband and wife are one person in law’. The principle has been eroded by successive 20th-c. statutes, but remains an important common law precept, and lingers in many lay assumptions about marriage partners.
42 See Gaius’ summary: 1.56; for the effect of the change of status: 1.158. The XII Tables principle and its implications for hereditary succession are cited in Inst. 3.4.pr: ‘lex duodecim tabularum ita stricto iure utebatur et praeponebat masculorum progeniem … ut ne quidem inter matrem et filium filiamve ultro citroque hereditatis capiendae ius daret, nisi quod praetores ex proximitate cognatorum eas personas ad successionem bonorum possessione unde cognati accommodata vocabant.’
43 Q.fratr. 1.3.7.
44 1.3.10: ‘filiam meam et tuam, Ciceronemque nostrum, quid ego, mi frater, tibi commendem? quin illud maereo, quod tibi non minorem dolorem illorum orbitas afferet, quam mihi sed, te incolumi, orbi non erunt.... etiam Terentiam velim tueare, mihique de omnibus rebus rescribas.’
45 Consider e.g. Catiline’s letter to Catulus: Sallust BC 35; and compare Cicero’s commendatio of Tullia to Atticus in January 47 B.C.: ‘alium enim cui illam commendem habeo neminem, quoniam matri quoque eadem intellexi esse parata quae mihi. sed si me non offendes, satis tamen habeto commendatam patruumque in earn quantum poteris mitigate.’
There are numerous instances of men about to die commending their loved ones (including wives not in manu) to friends e.g. Caes. BC 2.41; Ter. Ad 3.4.11. It can amount to a general request to look out for their interests. It is not synonymous with tutela or with a request to finance the children, wives or aged parents named — or to take them into one’s household.
46 Piso Frugi had died in 57 B.C. Tullia’s subsequent marriage to one Furius Crassipes took place probably in 55 B.C. and had been severed by the time Cicero went to Cilicia.
47 Att. 5.6.1.
48 Polyb. 31.27.5
49 He reached Brundisium in November 50 B.C., but delayed his entry into Rome in hopes of a triumph.
50 Att. 11.1; 2; 3; 4; 4a.
51 Att. 11.1.2.
52 Att. 11.2.2.
53 Cf. ‘videbis ergo ut sustentur per te’: Att. 11.4.
54 Att. 11.3.1; he refers again to the request in 11.4a.
55 Att. 11.25.3; 11.23.3
56 Fam. 14.6.
57 The second interpretation would relate the ‘favour’ to the sale of property and the due payment alluded to in the preceding sentences of the letter. I am obliged to Professor J.A. Crook for this suggestion that Terentia might have supplied a promised portion of Tullia’s dos.
58 E.g. P.E. Corbett op cit. (above, note 1) 146: ‘In its essential character and purpose dowry is a contribution from the wife’s side to the expenses of the household.’ This is made as a general observation, and has a plausible ring, but its particular application to the Roman case must be carefully examined. Certainly the wife wasnot only not expected, but not permitted, to contribute to the common household from her personal holdings — see D. 24.1 for later exceptions to this rule. The exceptions show that the rule had held in the late Republican period.
59 Cicero assigned the rents of certain properties to Marcus from 45 B.C.: Att. 12.32.2; 15.20.4, and see the discussion below.
60 E.g.D. 24.1.15; 24.3.22,8 (both Ulpian).
61 Att. 11.25.3; 11.23.3 — both from July 47 B.C..
62 In Fam. 14.13 Cicero revoked an earlier instruction to Terentia to send Dolabella a notice of divorce — also in July 47 B.C..
63 In Att. 12.8, which alludes to Dolabella’s imminent departure (for Spain) and dates to October 46 B.C., Cicero’s reference to the expected first payment indicated that the divorce terms had by then been negotiated. The discussion — or dismissal — of candidates for his own marriage (Att. 12.11) probably belongs to late November. In Fam. 6.18, written just after his grandson’s birth, he said that he was remaining in Rome in expectation of the first payment.
64 That is to say, between Att. 12.11 andAtt. 12.32, written after Tullia’s death (when Cicero was avoiding his new wife).
65 Dolabella was apparently adopted in 48 B.C., probably by Cn. Lentulus Vatia, and acquired the cognomen Lentulus, which passed to his son. See Voigt, W.V., ‘Excursus: eine vorlaüfige Bemerkung über die transitio ad plebem’, Philol. 64 (1905), 362–6Google Scholar and Shackleton Bailey, D.R., CQ n.s.10 (1960), 258’9 (=n.3).Google Scholar
66 Att. 12.18a.
67 ‘Contra veterum perfidiam’; Fam. 4.14. His ungracious treatment of his wife’s family must have strained these new relations considerably (Att. 12.32.1; 34; 13.47a.2) and sits oddly with his continued cultivation of Dolabella (e.g. Fam. 9.11; 12; Att. 14.17; 17a), and of Furius Crassipes.
68 E.g.Att. 12.19.4; 12.1; 21.3 and especially 22.1.
69 Att. 12.28.3; 30.1.
70 Att. 12.18a.2.
71 Inst. 3.4 pr. (quoted above in note 42) recalls the principle.
72 In January 45 B.C., Cicero wrote to Q. Lepta that he had remained in Rome for Tullia’s confinement, and was now there still in expectation of Dolabella’s agents, for the first payment: Fam. 6.18.
73 In May 45 B.C., Cicero was confidently looking forward to a cash payment, which he planned to use for a land purchase: ‘Dolabellae nomen iam expeditum videtur’: Att. 13.29. Cicero was absorbed in these financial details at the time; it is difficult to believe he would not have mentioned any failure to pay.
75 Att. 12.23.2.
76 Att. 12.28; 12.24.
77 Att. 12.7 and consider Att. 15.15: ‘tibi pro tua natura semper placuisse teque existimasse scio, id etiam ad dignitatem meam pertinere eum non modo liberaliter a nobis, sed etiam ornate cumulateque tractari.’
78 Att. 15.17.
79 Att. 15.20.4.
80 10,000 denarii: Plut. Cic. 8.2: 80 = 10,000 denarii: Plut. Cic. 8.2: φερνή τε Τερεντίας της γυναικός προσεγένετο μυριάδων δέκα.
81 Although Cicero’s inheritance from Cluvius, which he accepted Feb.-March 48 B.C. (Att. 11.2.2) apparently brought him HS 80,000 p/annum by April 44 B.C. (Att. 14.10.3), and he and Atticus hoped the yield would increase to HS 100,000. If this is the inheritance Plutarch alludes to in Cic. 8.3, it was valued at HS 360,000 (κληρονομιά τις, εις εννέα δηναρίων συναχθεϊσα μυριάδας).
82 Cf. the example Cicero uses in the Par. Stoic. 49 of the man who manages to make do with an annual income of HS 100,000 by living frugally — though still genteelly.
83 Consider the weary, almost sardonic tone of Att. 11.24.3 (August 47 B.C.): ‘de Terentia autem (mitto cetera quae sunt innumerabilia) quid ad hoc addi potest? scripseras ut HS permutaret; tantum esse reliquum de argento. misit ilia mihi et adscripsit tantum esse reliquum. cum hoc tarn parvum de parvo detraxerit, perspicis quid in maxima re fecerit.’
84 Att. 11.16.5.
85 Att. 11.23.3 and consider 25 — although a textual uncertainty makes this less conclusive in its connexion of the will and Tullia’s current situation.
86 Plin. NH 7 (48) 158; Val. Max. 8.13.6.
87 See again n. 42 on Just. Inst. 3.4.pr..
88 Compare the similar predicaments of Marcus and Tullia at different periods, both dealt with by Cicero through Atticus, as noted above.
89 ‘Graviores mores sunt adulteria tantum, leniores omnes reliqui’: Tit. 6.12.
90 These provisions are summarized by Ulpian Tit. 6.9-10; Vat. Fr. 105-107 (=Pauli lib. 8 resp.)
91 Consider, for example, the expulsion from the senate of L. Annius in 307 B.C., for repudiating his young bride without summoning a council of friends to explain his action: Val. Max 2.9.2.
92 Att. 11.23.3
93 Top. 19 (IV).
94 Vat. Fr. 107 (= Pauli resp. lib. 8).
96 Att. 12.19.4; 28.1.
97 Att. 12.21.3.
98 Antonius jeered at him for ending such a long-standing union; Tiro felt bound to reply in writing to Terentia’s version — and Plutarch was still speculating about the divorce after a century and a half: Cic. 41.
99 Consider, for example, Pompeius’ divorce ofMuciaorCaesar’s of Pompeia (Att. 1.12; Suet. Iul. 50) — not to mention Tullia’s of Dolabella. In each case, adultery was talked of, but not cited as a cause of divorce.
100 Alt. 16.15.2.
101 D. 23.5.3; Gaius 2.63; Paulus 2.21b.2 and, above all, Inst. 2.8 pr..