Cittadinanza e condizione giuridica delle donne in Roma repubblicana e imperiale (a proposito di Leo Peppe, Civis Romana)

I will consider two different issues in details. Women and the exercise of public authority; women and the transmission of citizenship. The fundamental text is Ulpianus 1 ad Sab. D. 50.17.2pr. It is conclusive. The exclusion of women from officia civilia and public powers is not justified according to natura, but by mores (Paulus 17 ad ed. D. 5.1.12.2). I would like to deepen the study of the problem of magistrature. In this regard, Ambrosiaster's testimony seems decisive (Quaestiones veteris et novi testamenti 45.3). Not all the terms used by Ambrosiaster are appropriate: for example, the word dominium. The term testis only refers to the woman's inability to be witness of a Testament. From my particular point of view, the word imperare is more important than the others. Which was the role of the women of the imperial family, particularly of the emperor's mother or wife, called, usually, Augustae? According to the rules of public law, no effective power is granted to the Augusta, wife or mother of the emperor. Reading Ulpianus 13 ad l. Iuliam et Papiam D. 1.3.31 we can identify the differences between princeps and Augusta. We cannot distinguish the nomen of Augusta from her current owner. Actually, according to public law, there is no peculiar constitutional position of the Augusta. Augusta’s privileges must always be indicated by the emperor or by the senate. According to a constitution of Antoninus Pius, the legatum per damnationem, left to the deceased princeps, had to be attributed to the living princeps. What had been left to the princeps, who died before the opening of the testament, belongs to the next princeps. A legacy in favor of the princeps is attributed, when he dies before the day begins (dies cedit), to the next princeps. This exception, attributable to ius singulare, was not extended to Augusta (Mauric. 2 ad l. Iul et Pap. D. 31.57). Regarding testamentary wills in favor of a princeps, only the function of the imperator for the time being (pro tempore) was taken into consideration. In the pictures of Late Antiquity, the Augusta never wears the cingulum, the typical belt of the Roman soldier and magistrate, a symbol of magisterial power rather than of imperial rank. I believe that the title of Augusta confers only an honorable position. But the same thing applies to the title of Augustus. Actually, Diocletian and Maximian, despite their abdication, retained the title of seniores Augusti. In my opinion, all this allows to clear the field from misunderstandings. These honors, such as, for example, the title of mater castrorum, have no legal value. Obviously the strictly political dimension looks very different. Therefore, Leo Peppe is perfectly right when he argues that the Augustae certainly had an important political role, but they were excluded from the juridical attribution of power and, consequently, from its exercise. The women of the imperial family were, in some cases, an important instrument of ideological legitimization of power. We can propose, for example, Marcus Aurelius and Faustina minor. A text of the Historia Augusta would seem to deny these conclusions (vita Heliogabali 4.1). But this detailed account must be interpreted according to what its author intended to say Heliogabalus has violated all the rules of civil coexistence. In his abyss of perversion, He even granted his mother exclusive privileges of men. We do not know if the facts really happened in this way. We can doubt the truthfulness of this story. But, in the Historia Augusta, truth and fiction are artfully mixed together. Actually, the biographer remembers with precision the practice of attributing the consularis coniugii ornamenta to the wives of high rank men (consulares), who got married again with lower rank men. It was also mentioned by Ulpianus 2 de censibus D. 1.9.12 pr. On the other hand, with regard to the mulierum senatus, I do not think it was wrong for Johannes Straub to point out an implicit but sarcastic suggestion in this connection to a congregation of Christian women of late fourth century. The biographer was a reader of the writings of Saint Paul and of St. Jerome. He wrote his work contra Christianos. In this perspective, Heliogabalus has only preceded Constantine and his subversion of traditional religion. In the conflict between Pagans and Christians, the body of women and his control played a very important role. According to Georgius Cedrenus (Historiarum Compendium 453.9) the Emperor Decius forbade Christian women to circulate in public wearing a veil. In Rome the veil was the symbol of the honest woman. Actually, St. Paul ordered all Christian women to wear a veil (1Cor 11.1-6.13-16). The oldest law concerning the veil was an Assyrian law of the 11th century BC. But this measure forbade prostitutes to wear this garment. According to Lactance (De morte persecutorum 13.1), Diocletian deprived Christians of the right to accuse de iniuria, de adulterio and de rebus ablatis: as a result they lost their liberty and even the right to free speech: libertatem denique ac vocem non haberent. The virtue of Christian woman is no longer protected: thus, implicitly, the Christian’s wife is equated to the woman condemned for adultery. 2. – Nobody can doubt that women were cives. It must be recognized, moreover, that women were part of the populus, but in a different sense than the original one. Also the woman can transmit citizenship, by birth and by manumission. In the transmission of Roman citizenship from one generation to another you can note a regularity. In Celsus 29 digestorum D. 1.5.29 we find this rule: Cum legitimae nuptiae factae sint, patrem liberi sequuntur: vulgo quaesitus matrem sequitur. Marriage confers the paternal condition; vice versa the illegitimate birth maternal condition. The children, begotten in lawful marriage, are in the power of their fathers. Roman citizen are bound together in lawful matrimony, when they are united according to law, the males having attained the age of puberty and the females a marriageable age. If we consider these two events – 1) conception in iustae nuptiae and 2) birth of child of unknown father – we recognize the first on the basis of a praesumptio iuris: Paulus 4 ad edictum D. 2.4.5, pater est is quem nuptiae demonstrant. Vice versa we note immediately the second because it is just a fact. This order is, above all, political and not only familiar or patrimonial. Actually it regulates the transmission of citizenship. Children born in iusto matrimonio were in the potestas of their father and, consequently, they were his heirs on intestacy. Vice versa children born out of wedlock always followed the condition of the mother; and it was her condition at the time of birth, not at that of conception, which decided the status of the child. Also the process that regulates, from the bottom, the ius originis, is nothing else but the civic sonship. Actually a child born in iusto matrimonio (that is, where there was conubium between the parents) was legitimate, took the father’s status and was in his potestas. In this way the insertion in the civitas follows the temporal continuity and the order of intestate succession. The children conceived during the marriage acquired the origo of their father. The children conceived out of a iustum matrimonium acquired the origo of their mother. How did the origo a matre work? Neratius writes (3 membranarum D. 50.1.9): Eius, qui iustum patrem non habet, prima origo a matre eoque die, quo ex ea editus est, numerari debet. What does this text mean to tell us? The origo gained through the mother starts from the moment of childbirth. The child takes the citizenship that the mother has at this exact moment. The lawyer wants to explain that local citizenship of the child starts with the mother only. In this case, the local citizenship of the child is not enrolled in a genealogical line of succession. Actually patria potestas existed only over children born in iusto matrimonio, or, in other words, only such children could be admitted to an existing familia. We must compare this doctrine with the words of Ulpian: 46 ad edictum, D. 50.16.195.5: Mulier autem familiae suae et caput et finis est. Actually the illegitimate child took its civic status from his mother, but this gave her no rights over the child. The female transmission is not, strictly speaking, a transmission of origo. What comes from the woman doesn’t fit in the succession of time, but it represents a starting point, because a woman cannot be a holder of the patria potestas and in no circumstances the mother could have potestas over her child, legitimate or illegitimate, nor she could adopt a child. The peculiar rights of the citizen were summed up in the familiar term suffragium et honores, the right of voting and the capacity of holding magisterial offices, and in the terms conubium and commercium. There was no conubium between Roman citizens and foreigners. But Latins and foreigners (peregrini) might be given conubium by special grant. Conubium, in particular, is a term which explains itself. The foundation of the Roman family was a marriage according to the ius Quiritium, and not to have the conubium was to be incapable of entering into the Roman family system. Illegitimate children were fatherless and sui iuris; their mothers could not have potestas over them, and they had no inheritance rights from their fathers. Obviously this framework describes the state of things of Late Republic and Principate. We also have to take into account the institutions such as the so-called aristocratic mobility in the archaic period. You can see, in terms of historical comparison, that these situations of uncertainty had been definitively overcome in Athens in 451 BC, among the Jews in the time of Ezra (around 450 BC) and in Rome after the Twelve Tables.