‘Vidua visas
patrem’. Threats of Divorce in Plautus’ Comedies
Cardinal Stefan
Wyszyński University
Warsaw
ABSTRACT: In many of Plautus’ plays
we can find information about divorce, though divorce was never shown on the
stage for obvious moral reasons . In
Menaechmi the husband threatens his wife with repudium because he
feels a slave in his own house – an ideal wife should - under no circumstances
- spy on her husband or even ask him about his affairs. The position of a man
in this relationship is rather weak – his wife brought a large dowry and he is
simply afraid of what he could lose by ending his marriage. In Mercator
Syra, a slave–woman, comments that husbans are allowed to have sexual contacts
with other women, whereas their wives can be easily repudiated even if seen
outside their houses without permission. There seems to have been no
possibility for a woman to demand divorce in Rome of the III/II century B.C.
Plautus uses this fact for comical purposes. In Amphitruo Alcumena
utters the formula of repudium as if backwords: tibi habeas
res tuas, reddas meas, making it sound as if it was her husband to
repudiate her.
Our knowledge of Roman law in the period
of the Republic only partially comes from legal sources. Information on many
institutions has been preserved only in literary sources.
But how could one be certain that these
records are of any value for a scholar? It seems that the Romans knew the law
better then any other nation. It constituted a kind of middle ground between
the citizens – a widely known code, obviously not concerning subtleties of the ius civile the jurists made disputes
about, but commonly accessible and known rules of the custom and the codified
law.
Cic., De rep. 1,25,39: Est igitur, inquit
Africanus, res publica res populi, populus autem non omnis hominum coetus
quoquo modo congregatus, sed coetus multitudinis iuris consensu et utilitatis
communione sociatus.
In this light a definition of a state
put by Cicero into the lips of Scipio Africanus, according to which a nation is
a community linked by common legal awareness seems to be an interesting record.
In spite of the fact that modern nations cannot rather pride themselves of
similar knowledge of law, the Romans were experts in this field. Nowadays the
authors of books or screenplays play intellectual games with the reader or
viewer, using commonly known quotes from the literature, and in the popular
culture even using commercial catch phrases. The works by Roman writers are
full of such “winks” made to the reader, but they are based on legal
institutions. The game is about taking a hint. That is why in order to fully
understand the text, one should know the law. On the other hand, such
references often allow one to understanding the operation of a given
institution better. These are not records of a legislator, but the voice of the
society, through which we can understand a reception of various legal rules,
their actual scope of application, feasibility, or the application extent of
the institution.
The
author's dialogue with a typical Roman could rather not take place in writing.
Roman citizens listened to the speeches delivered in the forum, went out to the
theatre. Therefore in order to learn something about lower social classes, one
can refer to the existing texts of Roman comedies. Only plays belonging to the
category of palliata, that is the
ones patterned on middle and – most of all – new Greek comedy, have been fully
preserved.
The most prominent author of the palliata was Titus Maccius Plautus, born
about 250 B.C., who wrote more or less between 210-184 B.C. The information on
his life may be found in the Noctes Atticae by Aulus Gellius[1].
The antiquarian gives some details on the comedist’s youth: initially Plautus,
who came from Umbria, was to work in the theatre in operis artificum
scaenicorum. However he lost the money he had gained this way on trade and
empty-handed he returned to Rome, where he was employed in a bakery, where he
wrote his first comedies: Saturio, Addictus and another one, the title
of which was not known to Gellius.
In the ancient world 130 comedies
possibly written by Plautus were known. From this list Varro selected 21, the
so-called fabulae Varronianae, which he recognised doubtlessly
authentic. Until our times only 21 whole plays and many fragments have been
preserved[2].
Because the palliata was heavily patterned by on Greek plays, what usually can
be read in a prologue of a comedy, there is a concern that also the realities
or legal rules are Greek, not Roman, which would make studies on Roman law
impossible. First of all, it should be remembered that Plautus wrote his
comedies for the audience[3].
Concern for the spectators to enjoy the play most, was his major task. What did
the Romans expect then, when they went to theatre? Mainly entertainment. That
they easily got bored may be proved by the incidents, which Terence suffered
from, when the audience escaped from his overintellectualized comedies to
rope-dancer performances. Plautus never experienced this. His vis comica was quite proverbial[4].
Any modern reader notices quite
ostentatious immoral attitude of Plautus’ characters. However taking into
account the rigidity of customs in Rome of 3rd and 2nd century B.C., we can
hardly suppose that the audience could easily tolerate such a parody of
themselves. It should rather be supposed that they treated it as jokes at the
expense of the Greeks, who were thought to be embodiments of all the
wickedness. Although in Roman society similar excesses occurred, they were
rather concealed and remained inside the family.
The scenes for comedies by Plautus are
Greek cities, and also some details refer clearly to the Greek world. Money
used by the characters most often is mines. However one should remember that
the audience of Plautus were not too well educated classes of the society. They
did not know to much about Greece, being only able to recall a few stereotypes,
which were popular in everyday life. In order to make an appropriate atmosphere
it was sufficient to make use of such a few superficial details. In any case
exaggeration would be undesirable here – it was not worth risking that majority
of the audience would not understand the events on stage saturated with foreign
life patterns[5].
Therefore a thesis can be assumed that Plautus showed the Roman world. Comedies
ridicule the Greeks, but the spectators could easily find the familiar ambient
of their own life and their own social and legal situations.
Still much caution should be put while
interpreting legally relevant fragments, because Plautus often simply
translated the Greek text into Latin. Main comedy plots remained unchanged[6].
So it is easy to be entrapped by automatic interpretation of the play modo
romano. In spite of this, what Plautus himself mentions, comoedia
graecissat[7].
It seems that a careful lecture may lead to interesting conclusions in relation
to Roman law, as well as in relation to Greek, most often Attic, rules.
Plautus gives many examples of
quarrelling married couples, dangerously approaching divorce[8]. In his monograph on law in Plautus’
comedies, Emilio Costa wrote that in this period the most often cause of
cessation of marriage was divorce, and not a death of one of the spouses[9].
It is hard to determine if a divorce was in fact an institution which was
commonly applied in Rome of the turn of the 3rd and 2nd century B.C. Already
the laws by Romulus allowed the husband to make a repudium in defined
circumstances[10].
A regulation concerning divorce was present also in the Law of Twelve Tables[11].
Its wording can be reconstructed from a fragment of Cicero's second Philippic[12].
Cic., Phil. 2,69: mimulam
suam res sibi habere iussit ex XII tabulis claves ademit exegit.
It probably established a divorce
formula (res tuas tibi habeto!)[13],
and ordered the repudiated wife to return the keys[14].
However a
commotion raised in the society by the
repudium made about 230 B.C. by Spurius Carvilius Ruga due to
infertility of his wife[15]
seems to demonstrate that the divorces were in those times not so common, as
Costa asserts. The Romans knew perfectly the divorce formula, because the Law
of Twelve Tables was known to them by heart.
The characters of Plautus’s comedies are
often married men, so annoyed by their wives that they dream of divorce as a
salvation from the marital hell. However it should be emphasised that there is
no comedy, where a divorce actually occurs on stage[16].
Palliata was to play not only a diverting role, but also to some extent
an educational one, and a broken marriage would be undoubtedly regarded as a
scandal[17].
In the comedy titled Menaechmi,
Menaechmus who had been adopted by a merchant, lives in Epidamnum together with
his wife. Their marriage is an example of a relationship, where a woman plays
first fiddle at home, and a man is in her shadow as a henpecked husband, taking
any opportunity to spite her and to slip out from her permanent control. This
motif was a gladly explored source of humour in the Greek comedy, commonly
regarded as misogynist one. For example in democratic Athens it had to seem
very funny when it appeared that a citizen committed in the political life was
unable to overtly oppose his wife[18].
Such was also the marriage of
Menaechmus. But what was its legal status? What is the ground of this
dependence from his wife? Plautus in the prologue mentioned that the foster
father of Menaechmus, the merchant from Epidamnum, arranged a good match for
him: eique uxorem dotatam dedit[19].
Under Roman law, the husband acquired the property of the dowry contributed by
his wife. He could manage it freely. However in the event of a divorce he was
obliged to return a dowry, and wives as early as in times of Plautus were
entitled to use a bonae fidei action:
actio rei uxoriae[20].
Such a solution could be an effective weapon in woman's hands . It should be
added though that – if a divorce took place by her fault – the husband could
retain part of the dowry under the right of retention. In Attic law a husband
managed the dowry (proivx), but in the event of divorce, it came
back to the wife's family[21].
Plot of financial dependence of man on
his wife with a large dowry appears in comedies by Plautus very frequently[22].
Plaut., Asin. 87:
Argentum accepi, dote imperium vendidi.
Demaenetus in Asinaria stated
openly that he had received silver and sold his authority, which he called the imperium, for the dowry[23].
In the Roman conscience too large a
dowry contributed by a woman made her impose too high requirements on her
husband in future and claim the right of co-deciding upon financial matters of
the family. Advices warning about taking a wife with a large dowry and
opinions, in which their luxury is stamped, are very common in the literature[24].
Although Menaechmus had inherited a
large fortune from his foster father[25],
his wife tries to take over control of his life.
Plaut., Men. 114-118:
Nam quotiens foras ire volo, me retines,
revocas, rogitas
Quo ego eam, quam rem agam, quid negoti
geram,
Quid petam, quid feram, quid foris egerim.
Portitorem domum duxi, ita omnem mihi
Rem necesse eloqui est, quicquid egi
atque ago.
The character complains about the fact
that each time when he wants to go out, his wife stops him, calls him in and
inquires, where he goes, what he will do, what matters he deals with. He jokes
that he introduced a doorman to his own house, because he must explain what he
did and what he does. It is an allusion to the ceremony of deductio in dumum mariti, during which a women was introduced to
her husband's house.
When his wife learns that Menaechmus had
stolen away her dress, she casts him out from the house and orders not to come
back without the palla. Such a casting away is called excludere foras[26].
It may suggest that the marital house was part of the dowry and constituted so
called aedes dotales. Although a typical dowry consisted of money, but
also real estates and slaves were frequently mentioned.
Menaechmus cast away from his house
finds a refuge in the house of Erotium, a courtesan.
Plaut., Men. 700:
Ibo et consulam hanc rem amicos, quid faciendum censeant.
The desperate husband decides to consult
his friends. Legal rule in fact required that a man consulted major decisions
with his friends.
Val. Max. 2,9,2: Horum severitatem M.
Valerius Maximus et C. Iunius Brutus Bubulcus censores consimili genere
animadversionibus imitati sunt: L. enim Annium senatu moverunt, quod quam
virginem in matrimonium duxerat repudiasset nullo amicorum consilio adhibito.
Valerius Maximus recorded that in
307/306 B.C. the censors[27]
expelled from the senate L. Annius, who had conducted a divorce without
consulting his friends, although he had married his wife as a virgin, what
proved her good name[28]. It is, however, hard to prove whether
Menaechmus really deliberated on making any serious decision. Maybe he dreams
of a divorce.
The marriage of Menaechmus is for him
only the source of troubles, significant limitation in his liberty[29].
His wife spies him at every turn. Act 1st, scene 2 of the comedy starts with a
monologue of Menaechmus, in which he threatens his wife with a divorce, if she
does not change her attitude. The husband says this, standing at the door of
his house, his wife is not present. It is probably so, because in Greek theatre
women of good birth hardly ever appeared on stage[30].
In everyday life they did not appear too often in the street, and the comedists
had to observe the rules of the common life. For this reason they fabricated
various tricks. Women often spoke from the interior of the house or appeared
before the audience, when a feast was celebrated, in which they could
participate.
Roman customs were not so rigorous,
women enjoyed much more freedom. It is however probable that a wife had to have
a consent of her husband to go outside of the house, in other case she was
threatened by a divorce.
Plaut., Merc. 817-828:
Ecastor lege dura vivont mulieres
multoque iniquiore miserae quam viri.
nam si vir scortum duxit clam uxorem
suam,
id si rescivit uxor, inpunest viro;
uxor virum si clam domo egressa est
foras,
viro fit causa, exigitur matrumonio.
utinam lex esset eadem quae uxori est
viro;
nam uxor contenta est, quae bona est,
uno viro:
qui minus vir una uxore contentus siet?
ecastor faxim, si itidem plectantur
viri,
si quis clam uxorem duxerit scortum
suam,
ut illae exiguntur quae in se culpam commerent,
plures viri sint vidui quam nunc mulieres.
In the comedy titled Mercator Syra,
a slave complains about the fact that the law is very severe toward women. If a
wife catches her husband in adultery, she can do nothing, he remains unpunished[31].
However if she goes out from her house secretly, she gives a ground for
divorce. If the wives had right to make a repudium
for adultery of their husbands, there would be more divorced men than there are
now divorced women[32].
Therefore, as it seems, a ground for a
divorce could be the fact that wife went out from home secretly. The emphasis
was put precisely on the word clam,
because a woman could legally go out from her husband's house. She could do
this for example, if she did not want to enter under her husband's manus through usus, what was guaranteed to her by the Law of Twelve Tables[33]. However for certain the husband had
to know that his wife went out. Plutarch described how Publius Sempronius
divorced his wife, whom he caught outside their house in viewing funeral games[34].
Therefore such a limitation for women certainly existed.
Friedrich Leo[35]
pointed out an additional, very interesting aspect of Syra's monologue. This
Plautine scene is very similar to fragments of the tragedies by Euripides. It
is commonly known that Plautus himself drew from the middle and new Greek
comedy, which in turn drew exactly from Euripides. If – as in case of the
comedy Mercator – the Greek original, that is #Emporo" by Philemon, has not been preserved, it is worth
searching for similarities in Euripides’ works.
In Medea[36]
the main character grieves that a woman depends on her husband, whom she has to
purchase (for a dowry), and then suffer him for the whole of her life, even if
he turns to be a rascal. She is also sentenced to remain at home, while he can
travel or fight. In Medea's opinion, it is very unjust that a woman has no
right to go out from home, and her husband, when he is tired of family life,
can always meet his friends. The wife has even no relatives around her, because
her husband takes her over from her family house and introduces to his. A very
similar complaint is made by Clytaemnestra in Electra[37].
Leo thinks that the monologue of Syra
from Mercator faithfully reflects the
complaints of women in Euripides’ tragedies[38]. However it should be emphasised
that in none of the fragments a divorce is mentioned. Leo does not take into
account the legal aspect of these texts. Euripides only wrote about the wife’
guilt and does not mention consequences of her conduct, that is a divorce[39],
which Plautus consciously introduced to his text. So there are no reasons for
thinking that what Syra says has no reference to Roman realities. Such an
allusion has its reflection in law.
The fragment of comedy Menaechmi,
in which the husband threatens his wife
with a divorce, is very interesting from the legal perspective. The character
describes himself as a good husband, who fulfils his obligations: provides
female slaves, clothes, wool and gold to his wife. In spite of that, she
behaves inappropriately, by all means wanting to know, what he is going to do,
when he goes out from home, whom he is going to meet. Excessive inquisitiveness
was regarded as a woman's fault.
Plaut., Men. 787-788:
quotiens monstravi tibi, viro ut morem geras,
Quid ille faciat ne id observes, quo eat, quid rerum
gerat?
Even her father, in a further section of
the play, reminds her of the fact that
he has explained her many times that a woman cannot inquire about where her
husband goes to and what he does.
Plaut., Men. 112-113:
Praeterhac si mihi tale post hunc diem
faxis, faxo foras vidua visas patrem.
Quite unusual seem to be the words used
by Menaechmus, announcing that he is going to make a repudium if his wife does not change her behaviour.
He does not pronounce any common formulas. He states only that she will see her
father as a vidua, a word that here
does not denote a widow, but a divorcee. The term vidua exactly in this meaning is quite common in the literature[40].
Apuleius in his Apology gives a
reason for similar treatment of divorced women and widows[41].
For a Roman who wanted to get married a fundamental advantage of the woman of
his choice was her virginity. Apuleius persuades in this regard that a divorcee
could not be distinguished from a widow, when she wanted to get married again,
because both could not pride themselves of their virginity. That is why it
constitutes the part of dowry most desirable by a husband. If marriage ceased,
he would have to return all other things, but virginity of his wife would
remain his property forever.
Menaechmus’ wife is also not happy with
her marriage. When she becomes certain that her spouse took away her dress from
home and gave it to a courtesan, she decides to call for her father.
Plaut., Men., 781-783:
MA.: verum
vivere hic non possum neque durare ullo modo.
proin tu me hinc abducas. SE.: Quid istuc autem est? MA.: Ludibrio, pater,
habeor.
SE.: Vnde? MA.: Ab illo, quoi me mandavisti, meo viro.
She asks him to take her away from her
husband's home[42]. Under Attic law it was possible to
terminate a marriage not only by the husband, but also by the wife or her
father[43].
A ground, on which the wife herself could apply for a divorce, was kavkwsi", that is
adultery committed by her husband in their common house[44].
Menaechmus meets a courtesan only outside of home, which he confirms by saying:
Hodie
ducam scortum atque aliquo ad cenam condicam foras[45]. For this reason his wife calls for her father in order that he
himself initiated the divorce procedure (proin tu me hinc abducas).
The scholars
try to interpret this scene in the grounds of Roman law. Watson[46]
makes a hypothesis that Plautus, while translating the Greek comedy, removed
the legally relevant elements, and Menaechmus’ wife calls for her father only
in order that he called his son-in-law to order. In this case the marriage of
Menaechmus was treated as a relationship sine manu. Watson argues that the
characters do not mention a divorce in this scene. It seems, however, that a
clear reference to divorce is here the verb abducere, which may be an antonym
of deducere in the phrase deductio in domum mariti denoting
introduction of a newly married wife to her husband’s house.
Then Watson
mentions another possible interpretation, according to which Roman law required
the wife’s father’s presence in order that she could initiate a repudium.
It is assumed here that a woman could apply for a divorce, what in times of
Plautus seems doubtful. On the other hand, it is also possible that a marriage
in which the wife was not under her husband’s manus could be terminated
by her pater familias. Watson makes in this
matter a judgement: non liquet.
In the
opinion of Treggiari[47]
the audience of Plautus identified the status of the Greek gunh; gamethv with
position of a Roman wife sine manu. Nevertheless she makes a reservation
that she does not recognise comedy as a reliable source of legal knowledge.
It is hard to
resolve this question definitely. It seems that Plautus created comedy
marriages based on Greek originals and, despite of the fact that he often referred
to Roman legal institutions, the establishment of the relationship usually
remains Greek. However the audience had to understand, what happened on stage.
In this light a theory that Roman law allowed breaking the marriage by a
decision of woman's pater familias, if she
still remained under his authority, seems convincing[48].
Such a situation would not then be strange for the spectators.
In Stichus
the father wants to break the marriages of his daughters, because his
sons-in-law had not returned from their travel for a long time[49].
Plaut., Stich. 68-69:
pati nos oportet, quod ille faciat, quoius potestas plus
potest.
The daughters do not want to accept
this, but – if they do not manage to convince their father through their argumentation
– they would have to subject to his authority. It should be emphasised, however, that the father does not
intend here to conduct divorces of his daughters, but to persuade them to get
married again, what implies recognising their husbands, who had been absent for
three years, as dead.
In Amphitruo
the situation on stage is very complex, because, on one hand, the
title-character suspects his wife of adultery, but, on the other hand, she
holds a grudge against him for these accusations. All those complications had
been caused by Jupiter, who came in place of Amphitruo beside his wife, having
assumed his look, when he was absent. Mercury predicts problems, which will
arise, when the real husband appears[50].
Plaut., Amph. 1015-1016:
Nunc domum ibo atque ex uxore mea hanc
rem pergam exquirere,
quis fuerit quem propter corpus suom stupri conpleverit.
And, in fact, once the husband comes
back he accuses his wife of adultery[51].
Alcumena has been put into a very awkward position, because her reputation has
been jeopardized.
Plaut., Amph. 928:
valeas, tibi habeas res tuas, reddas
meas.
Alcumena seems to pronounce a
traditional divorce formula. Watson thinks that it is her who declares a repudium here, because her marriage with
Amphitruo is sine manu. The scholar
argues that Plautus cannot joke here and that these words could not be reserved
for men, because Alcumena is to behave here seriously and rationally[52].
However it can be doubted, if Alcumena
makes a repudium. In the first place
the scene, in which this situation occurs, should be reviewed. Jupiter
impersonating Amphitruo tries to cancel the accusations made by the husband,
crying that they have been pronounced for fun[53]. However Alcumena does not want to
accept such a justification, because she feels injured and insulted[54]. She wants to leave out of this
situation honourably and, for this reason, she chooses the most solemn formula,
which occurred to her.
However Plautus applies here a literary
technique intended to strengthen the comic effect of the scene. Alcumena does
not pronounce the divorce formula precisely, but as if contrariwise: tibi habeas res tuas, reddas meas. It is
the husband who should retain his things and give back her property to her. The
person who is going to leave the house is not him, but her. So Plautus make a
comic role reversal: the wife says the words, which finalise the divorce for
her husband, however as if reversed[55].
It comes out as if he has made a repudium.
So all has been done according to the law. A spectator, who knows the legal
formula well, has a perfect time, because he sees the comedy of the situations
clearly, and in the same time enjoys the artful word trick.
It seems that always when in Plautus’
comedies a wife applies for a divorce, it is intended for comical effect, and
not to reflect real legal situation[56].
It often concerns showing how much the husband fears of his wife, who has
contributed a dowry and in fact governs all the property.
In Miles
gloriosus Palaestrio, a slave, plots against Pyrgopolinices in order to
join two enamoured: Philocomasium and Pleusicles. He convinces the soldier that
his neighbour’s wife fell in love with him. However the neighbour does not have
a wife, her role is performed by Agroteleutium, a courtesan. The smart slave,
in order that Pyrgopolinices would not be afraid of entering another man’s
house, wants to convince him that the neighbour has divorced, and that the
house belongs to his ex-wife as a part of a dowry. He also explains the role to
the courtesan.
Plaut., Mil. 1167-1169:
hasce esse aedis dicas dotalis tuas,
hinc
senem aps te abisse, postquam feceris divortium:
ne
ille mox vereatur intro ire in alienam domum.
The woman should say that the house constitutes
a part of the dowry, and the old man left when she conducted a divorce in order
that the soldier could enter without fear. It could result from the text that
it was the wife who initiated divorce[57].
However it seems that the exact wording concerns only the question of ownership
of the real estate, which has been returned to the woman, when the marriage was
terminated. Apparent spouses used to live in a house, which was part of a
dowry, and, for this reason, the husband was the one who left the house.
Plaut., Mil. 1276-1278:
PY: egon ad illam eam quae nupta sit?
vir eius me deprehendat.
MI:
quin tua caussa exegit virum ab se. PY: qui id facere potuit?
MI:
[quia] aedes dotalis huiiu’ sunt. PY: itane? MI: ita pol. PY:
iube domum ire.
A conversation of Pyrgopolinices and
Milphidippa in a further section of the comedy introduces even more confusion.
Now we cannot be sure that it concerns a divorce, because Pyrgopolinices
clearly speaks of a married woman. It is only known that she cast his husband
out. The text gives us no grounds to think that it concerns a divorce made by
the wife. First of all, in fact, no wife exists, and the whole plot is aimed at
cheating the soldier, who is not blessed with much intelligence. Therefore it
seems that in the formerly quoted fragment the term divortium could be used in its non-technical meaning.
Plautus often used to play with common
legal formulas and did not use them only in their technical meaning.
Plaut., Trin. 266:
Apage te, Amor; tuas res tibi habeto.
In Trinummus
the known words res tuas tibi habeto
are used by Lysiteles in his monologue addressed to Cupid, the god of love. The
young man wants to abolish him, because he thinks that he does to people more
harm than good and that he is dangerous[58]. Eventually he resorts to the divorce
formula in order to demonstrate his determination and set himself free from the
importunate god forever.
Plaut., Cas. 210-212:
MY: Insipiens, semper tu huic verbo vitato abs tuo viro.
CLE: quoi verbo? MY: ei foras, mulier.
In the comedy Casina words are mentioned, which the wife may be afraid of hearing
from her husband and which should be avoided by a woman[59].
It seems that the sentence: ei foras,
mulier[60]
in a rude manner informs a wife that her husband decided to conduct a divorce.
It would be then a less sophisticated wording of the res tuas tibi habeto
formula.
There are many suspicions of adultery
Plautus’ works. It is known that a wife could not punish an unfaithful husband
in any manner, and at least such an ability was not provided to her by law. She
could only take her revenge, by using her position at home, in particular, if
she could administer her dowry (again only in practice). With a husband all was
different.
Plaut., Amph. 1048-1050:
ubi quemquem hominem aspexero,
sive
ancillam, sive servom, si uxorem, si adulterum,
si
patrem, si avom videbo, eum obtruncabo in aedibus.
Amphitruo is afraid that his wife
committed an adulterium and restless
runs into their house. He threatens that he will kill anyone whom he will find
there.
Plaut., Bacch. 917-918:
Nam ni illic hodie forte fortuna hic
foret,
miles Mnesilochum cum uxore opprimeret
sua
atque optruncaret moechum manufestarium.
In the comedy Bacchidae there is a husband, who would catch the lover with his
wife and kill him as a manifest adulterer.
In Athens
legal self-help was allowed in case of catching a thief or moivco"[61]. The host
could kill the lover of his wife, daughter, mother and sister and he would be
not punished with exile, what was common in case of assassination.
Roman law
also did not persecute husbands who killed or injured an adulterer caught with
their wives.
Val. Max. 6,1,13: Sed ut eos quoque, qui
in vindicanda pudicitia dolore suo pro publica lege usi sunt, strictim
percurram, Sempronius Musca C. Gellium deprehensum in adulterio flagellis
cecidit, C. Memmius L. Octavium similiter deprehensum pernis contudit, Carbo
Attienus a Vibieno, item Pontius a P. Cer<en>nio deprehensi castrati
sunt. Cn. etiam Furium Brocchum qui deprehenderat familiae stuprandum obiecit.
quibus irae suae indulsisse fraudi non fuit.
Valerius Maximus listed examples of
husbands, who within legal self-help punished adulterers and whose relieved
anger was not recognised as crime. Sempronius Musca ordered flogging[62]
of C. Gellius, Memmius whipped L. Octavius, and Carbo Atienus and Pontius were
castrated by their lovers’ husbands. Another adulterer Brocchus was given to
the furious husband’s slaves, who raped him. Therefore it seems that a husband
who caught an adulterer in flagranti
could punish him freely and he was not threatened by any consequences.
Plaut., Bacch. 859-860:
Nihil est lucri quod me hodie facere mavelim
quam illum cubantem cum illa opprimere,
ambo ut necem.
However in
the comedy Bacchidae also a mention of killing an adulteress is made.
In Athenian
law there was no regulation allowing a husband to kill his wife. He could cast
her out and conduct a divorce. Solon’s laws deprived a woman caught in adultery
of the right to carry any jewellery and to visit temples, that is forbade her
basic entertainment available to Athenian women[63].
Gell. 10,23,4: Verba Marci Catonis adscripsi
ex oratione, quae inscribitur De dote, in qua id quoque scriptum est in
adulterio uxores deprehensas ius fuisse maritis necare.
Gellius referred to Cato’s speech De dote[64],
which concerned the crimes of women, who could even be killed by their husbands
if they caught them in adultery.
According to Dionysius of Halicarnassus,
in Romulus’ laws a regulation existed, which allowed to punish with death a
woman who committed adultery or drank wine[65].
The author wrote, however, that the
judgement was made by the husband and the relatives (iudicium domesticum)[66]. It seems that in case when the wife had
been caught in flagranti, her husband, led by fury, could punish her and
the adulterer on the spot. However if he did not do it or if he did not catch
them personally, he could punish his wife only after consulting the relatives.
The
argumentation presented above allows to make a conclusion that Plautus,
referring in his comedies to the institution of divorce, was on the ground of
Roman law. It is, first of all, confirmed by all wordplays based on the
formula: res tuas tibi habeto. The Romans, who learnt
the Law of Twelve Tables by heart, appreciated jokes upon its provisions. It
also seems that divorces were an element of everyday life of those times and
were not perceived as a moral scandal. It is also certain that the audience
enjoyed the jokes concerning wives with a large dowry terrifying their
husbands: the men could laugh to their harts content, often pretending that
this problem does not concern them.
Texts of the
comedies also allow us to think that in times of Plautus a woman was not able
to make a repudium, and it was not important whether she was under the manus
of her husband or not. This conclusion can be made based on fragments, in which
women, who aim for divorce, provoke their husbands to make a first move.
[2] Varro was the author of a not preserved
book De comoediis Plautinis. Cf. M. Schanz,
C. Hosius, Geschichte der
römischen Literatur bis zum Gesetzgebungswerk des Kaisers Justinian, I,
1927 (reprint München 1979), 57-58.
[4] In his Noctes Atticae (1,24,3)
Aulus Gellius preserved a sepulchral epigram of Plautus: Postquam est
mortem aptus Plautus, Comoedia luget, /Scaena est deserta [ac]
dein Risus, Ludus Iocusque,/ Et numeri innumeri simul omnes conlacrimarunt.
[5] On Plautus’ explanations of Greek institutes cf. M. Radin, Greek Law in Roman Comedy, «Classical Philology» 5.3/1910, 365-367.
[8] In Plautus’
comedies love and marriage exclude one another. Cf.
E. Skwara, Love in Plautus’ Comedies, «Eos» 39/2002, 307.
[10] Plut., Rom. 22 = leg. reg., Rom. 9 (FIRA I). Cf. J. Zabłocki, ‘Si
mulier vinum bibit condemnatur’,
«Prawo Kanoniczne» 32.1-2/1989, 223-232; Idem,
Illeciti delle donne romane, «Ius Antiquum» 1(8)/2001, p. 78-79.
[11] Tab. 4,3 (FIRA I), where in the reconstrucion a word illam instead of mimulam appears. An exact content of this provision is dubious. In the edition of M.H. Crawford, The Roman Statutes, II, London 1996, 580 and 632-633, the reconstruction goes <repudium mittito>. Cf. R. Yaron, Minutiae on Roman Divorce, «TR» 28/1960, 1-12; A. Watson, The Divorce of Carvilius Ruga, «TR» 33/1965, 42.
[12] The situation described by Cicero does not concern a divorce but a parting with an actress (mimula). Using a well known traditional formula of the repudium is supposed to plunge and ridicule the opponent.
[13] Cf. J. Urbanik, ‘Tuas res tibi habeto’: la funzione delle „parole approvate” nel divorzio, [in:] Dire le droit: normes, juges, jurisconsultes, red. B. Anagnostou-Canas, Paris 2006, 87–98.
[14] The wife was given keys during the wedding ceremony. Cf. Athen. 440e-441b. It is worth mentioning that in a togata comedy, Gemina by Titinius, the wife threatens her husband that she is going to hide the house keys, expressing by that, as it seems, her intention of divorce.
[15] Cf. A.
Watson, The Divorce..., 38-50;
O. Robleda, Il divorzio a Roma prima di Constantino, «ANRW» II.14/1982,
355-365; A. Tarwacka, Rozwód
Carviliusa Rugi – czy naprawdę pierwszy?, [The Divorce of Carvilius Ruga – Was It Really the First?], «CPH»
54.1/2002, 301-308.
[16] Afranius wrote a comedy Divortium, and also Repudiatus, probably concerning divorce. From the preserved
fragments it seems however that no divorce actually took place there. It has to
be noticed that E. Schuhmann, Ehescheidungen in den Komödien des Plautus,
«ZSS» 93/1976, 27, is of the opinion that Messenio’s words announcing at the
end of Menaechmi (1157-1162) an auction
, during which the wife might also be sold is a sign of a broken marriage.
There is however no legal basis for such an interpretation, as the words are
uttered by a former slave, not the husband. The Author herself notices that is
was forbidden in Rome to sell a wife and there she spots the source of humor.
[17] According to S.M. Braund, Marriage, Adultery, and Divorce in Roman Comic Drama, [in:], Satiric Advice on Women and Marriage: from Plautus to Chaucer, ed. W.S. Smith, Ann Arbor 2005, 39-70, introducing a divorce motive into the comedy meant breaking a stereotype and exceeding the standard border. However it seems rather that a divorce, and moreover a would-be one, was quite a typical comedy feature, also in the Greek new comedy.
[18] Cf. M. Borowska, ΟΙΚΕΙΑ ΠΡΑΓΜΑΤΑ. Z dziejów ‘dramatis personae’
rodzinnej komedii greckiej następców Arystofanesa, [ΟΙΚΕΙΑ
ΠΡΑΓΜΑΤΑ. From
the History of the ‘dramatis personae’
in the Greek Family Comedy of the Successors of Aristophanes], Warszawa 1995, 45.
[20]
Cf. A. Söllner, Zur
Vorgeschichte und Funktion der ‘actio rei uxoriae’, Köln-Wien 1969,
84-87; C.F. Amunátegui Perelló, La obligación de restitución de la dote y el
nacimiento del divorcio en Roma, «Revista de Estudios Histórico-Jurídicos» 30/2008,
39-46.
[21] Cf. L.A.
Post, Woman's Place in Menander's
Athens, «TAPA» 71/1940, 428-455; L.
Foxhall, Household, Gender and
Property in Classical Athens, «CQ», 32-39; L. Cohn-Haft, Divorce
in Classical Athens, «The Journal of Hellenic Studies» 115/1995, 4-11.
[22] Cf. E. Schuhmann, Der Typ der ‘uxor dotata’ in den Komödien des Plautus, «Philologus» 121/1997, 45-65; C.F. Amunátegui Perelló, Formas dotales en la comedia plautina, «Revista de Estudios Histórico-Jurídicos» 27/2005, 28-30.
[23] A
well dowered wife also appears in the Greek comedies. The characters of
Menander’s plays tell about selling their freedom for a dowry. Cf. Men., Epitrep. 21-23; Plok., fr. 333.
Cf. Plaut., Epid. 180; Mil. 681; Most. 281 and 703-710; Aulul.
532-533; G.W. Leffingwell, Social and private life at Rome in the time
of Plautus and Terence, New York 1918, 46; S.M. Braund, op. cit.,
48-50.
[27] Cf. T.R.S. Broughton, The Magistrates of the Roman Republic, I, Atlanta 1951 (reprint
1986), 165; E. Reigadas Lavandero,
Censura y ‘res publica’. Aportación
constitucional y protagonismo político, Madrid 2000, 153-159, praecipue 158.
[28] Annius’ divorce
creates doubts concerning the amicorum
consilium. It is not certain if such a council was
necessary when none of Romulus’ grounds for repudium
took place (so O. Robleda, op. cit., 358-359), or when a proof of
an event enabling the husband to send away his wife was needed. Because it
seems that before Carvilius’ divorce wives were repudiated under legal
circumstances, also Annius must have had something to accuse his wife of, but
he sent her away without informing anyone about it.
[29] Cf. E. Segal, Roman Laughter. The Comedy of Plautus, 2a ed., Oxford 1987, 22-28, on an uxor irata and jokes in which a wife is good but after death.
[31]
Cf. Cato apud Gell. 10,23,5: In adulterio
uxorem tuam si prehendisses, sine iudicio inpune necares; illa te, si
adulterares sive tu adulterarere, digito non auderet contingere, neque ius est.
[32] On this monologue
cf. C.F. Amunátegui Perelló, El divorcio en las comedias de Plauto,
«Semanas de Estudios Romanos» 14/2008, 153-157. The Author spots a difference in the position of men
and women in this that she lost her dowry in case of adultery whereas he bear
no financial consequences. The text however suggests that the wife also had no
divorce initiative. Cf. O. Robleda, op. cit., 361.
[40] Cf. Tac., Ann. 14,64,2. But see
also D. 50,16,242,3 (Iav. 2 ex post. Lab.),
where the jurist explains that the term vidua
may mean any unmarried woman.
[41] Apul., Apol. 92,7-8: Nam quodcumque aliud in dotem acceperis, potes,
cum libuit, ne sis beneficio obstrictus, omne ut acceperas retribuere: pecuniam
renumerare, mancipia restituere, domo demigrare, praediis cedere; sola
virginitas cum semel accepta est, reddi nequitur, sola apud maritum ex rebus
dotalibus remanet. Vidua autem qualis nuptiis venit, talis
divortio digreditur. Cf.
Val. Max. 2,9,2 cited above.
[42] Cf. Plaut., Merc., w. 787-788: Syra, i, rogato meum patrem verbis meis, ut
veniat ad me iam simul tecum.
[43] Cf. L.
Cohn-Haft, op. cit., 1-14; J. Roy, ‘Polis’ and ‘oikos’ in
Classical Athens, «Greece & Rome» 46.1/1999, 9.
[44] Cf. H. Kupiszewski, ‘Dyskolos’ Menandra i jego znaczenie dla
prawa greckiego i rzymskiego, [Menander’s
‘Dyskolos’ and Its Meaning for Greek
and Roman Law], «Eos» 52.1/1962, 50; Idem, Menanders ‘Dyskolos’ und seine Bedeutung für die Kenntnis des griechischen und römischen
Familienrechts, [in:] Menanders ‘Dyscolos’ als
Zeugnis seiner Epoche, Berlin 1965, 118.
[47] S. Treggiari,
Roman Marriage. Iusti coniuges from the
time of Cicero to the Tome of Ulpian, Oxford 1991, 443.
[48]
Cf. J. Urbanik, D. 24.2.4: …’Pater tamen eius nuntium
mittere posse’. L’influsso della volontà del padre sul divorzio dei sottoposti,
[in:] Eujergesiva" cavrin. Studies Presented to Benedetto Bravo and Ewa
Wipszycka by Their Disciples, ed. T.
Derda, J. Urbanik, M. Węcowski, Warsaw 2002, 293-336.
[50] Plaut., Amph. 476-477: Nam Amphitruo actutum uxori turbas conciet,
atque insimulabit eam probri.
[51] Stuprum actually means an affair with an unmarried woman but
it acquired its technical meaning in Augustus’ marriage legislation. Here it
stands for adultery.
[52] A. Watson,
The Law of Persons...,
52. Cf. R. Yaron, op. cit., 6;
C.F. Amunátegui Perelló, El divorcio..., 152-153.
[55] P.A. Rosenmeyer, Enacting
the Law: Plautus' Use of the Divorce Formula on Stage, «Phoenix» 49.3/1995, 208-217,
notices that Alcumena usurps a traditionally male formula. The Author still
thinks that it is the wife who declares divorce here. Cf. E. Schuhmann, Ehescheidungen..., 24-25.
[57] E. Schuhmann, Ehescheidungen..., 25, thinks that Plautus wrote here about Greek reality because he put the plot in Ephesos.
[58] Plaut., Trin. 265a-265b: Nam qui in amorem praecipitavit, peius perit quasi saxo saliat. Cf. P.A.
Rosenmeyer, op. cit., 207-208.
[59] Cf. R.L. Dees, Aspects of Roman law of marriage in Plautus’ ‘Casina’, «Iura» 39/1988, p. 114-115; P.A. Rosenmeyer, op. cit., 206-207.
[61] Cf. M.R. Christ, Legal Self-Help in Defence of the oi\ko", «American Journal of Philology»
119.4/1998, 522.
[62] Similarly Sallust was flogged and – after having paid a large sum of money – let go by Milo. Cf. Gell. 17,18; H. Appel, Sallustiusz i Fausta, czyli skandal w domu Milona, [Sallust and Fausta or a Scandal in Milo’s House], «Meander» 57.3-4/2002, 309-318.
[63] Aeschin., Timarch. 183; Cf. N.A.
Vrissimitzis, Love, Sex and
Marriage in Ancient Greece, Greece 1997, 41-42.
[65] Dion. Hal. 2,25,6=Leges regiae, Rom. 7 (FIRA I). Cf. J. Zabłocki, ‘Si mulier vinum bibit’..., 223-232; Idem, Illeciti..., 78-79.
[66] On the iudicium
domesticum cf. E. Volterra, Il preteso tribunale domestico in diritto
romano, «RISG» 2/1948, p. 103-153; W.
Kunkel, Das Konsilium im
Hausgericht, «ZSS» 83/1966, 234-251; A.
Ruggiero, Nuove riflessioni in
tema di tribunale domestico, [in:] ‘Sodalitas’.
Scritti in onore di Antonio Guarino, IV, Napoli 1984, 1593-1600.