BMCR 2021.03.37

Servus dotalis Der Sklave in der Ordnung des klassischen römischen Mitgiftrechts

, Servus dotalis Der Sklave in der Ordnung des klassischen römischen Mitgiftrechts. Forschungen zur Antiken Sklaverei, Band 44. Stuttgart: Franz Steiner Verlag, 2020. Pp. 280. ISBN 9783515125130 €49,00.

In the ‘Tale of the Wicked Stepmother’ in Apuleius’ Golden Ass, an enslaved character described as thoroughly malicious is drawn into the wicked stepmother’s murderous plot to revenge the sexual rejection she has experienced from her son-in-law. The unnamed servile culprit obtains the poison and mixes it with wine. Accidentally, the poison is drunk by the woman’s own son. The case is taken to court, where the enslaved accomplice gives false witness: it was the son-in-law who sought to poison the woman, for rejecting him, not vice versa, he claims, foregrounding the diverse sentiments at play—stepmother’s and son-in-law’s—in what has therefore been termed a tale ‘awash in emotions, expressed and implied’.[1] Apart from his repeatedly emphasised nastiness, categorisation as a little dotal slave—dotalis servulus—fleshes out this servile figure. Noting that he ‘was a slave from the woman’s parental home’, Zimmerman writes in her commentary that it is therefore ‘to be expected that such a slave maintained a strong tie with the woman with whom he came’.[2]

The servile figure’s identification as servus dotalis appears as a nugatory detail, both in the Ass as well as in the text’s modern analysis. That this should not be so will be evident to readers of Benedikt Forschner’s Servus dotalis. Der Sklave in der Ordnung des klassischen römischen Mitgiftrechts. Published in the series dedicated to research on ancient slavery at the Academy of Sciences and Literature at Mainz in Germany (Forschungen zur antiken Sklaverei), the book offers comprehensive exploration of the dotal slave in Roman legal discourse. Following a short introduction (9-12), Forschner lays the ground by discussing the dowry in Roman law more broadly, surveying historical origins and developments, besides its purpose (15-38), and key dimensions (39-64). Central to Forschner’s take (and scholarship generally) is the question of ownership over the dowry (while acknowledging openly that this modern concern jars with the minimal role played by the question in Roman discourse: 47). Forschner sides with the majority view that the dowry is part of the husband’s property: ‘Terminologisch wird die Dos im klassischen Recht einheitlich dem Eigentum des Mannes zugeordnet’ (48) – what his cited source calls ‘in bonis maritii’ (Digest 23.3.75). Forschner thus rejects the idea that the dowry was the subject of shared ownership between wife and husband, or that it was in some sense no one’s property (61-2).[3] Forschner does not deny that the dowry is a funny kind of property, for the husband who has dominium over it is restricted in its handling. The restriction is explained, so Forschner, by the chief purpose of the dowry—namely, the satisfactory provisioning of the woman in case of divorce, including a dowry for eventual remarriage (19). As Forschner stresses, it is therefore essential that the dowry’s value is preserved, limiting the actions of the husband-owner. But the dowry also served to compensate the husband for expenditure arising from the marriage by granting him enjoyment thereof and of its products: ‘Da der Ehemann die Lasten der Ehe zu tragen hat, sollen ihm auch die Nutzungen der Mitgiftgegenstände zufallen’ (153). Notwithstanding the legal fine print, the harvest from a dotal vineyard, for instance, was the husband’s, who was entitled to the profits from its sale.

This sketch of the dotal mechanics is substantiated in the book’s main part on the figure of the servus dotalis (90–235). It is immediately obvious that the inclusion of human beings in the dowry creates complex scenarios, which Forschner reviews methodically. Take the case of manumission (‘Die Freilassung des Dotalsklaven durch den Ehemann’, 99–120). Although the servus dotalis falls under the husband’s dominium, the husband can only manumit if he is solvent, limiting his right to capital arising from his dominium. If, moreover, the husband has mortgaged the servus to his wife, the manumission is invalid irrespective of the husband’s solvency. What happens when the wife opposes the manumission is perhaps unsurprisingly the subject of intense legal debate, then as now. Forschner details how this debate does not concern the manumission itself, which remains valid (assuming the husband is solvent, as noted), but that it centres on the dealings between husband and wife. The couple’s interests also inform the return of the dowry upon divorce (‘Retentiones propter inpensas’, 120–53), exemplified by the circumstances that enabled the husband to retain (part of) the dowry, especially outlays deemed necessary (impensae necessariae), as long as such necessary expenditure went beyond the remit of adequate upkeep, for which the husband was responsible. Notably, food could not be deducted, while some jurists held that ransom for dotal slaves taken hostage could, or the pay for wet-nurses charged with caring for the dotal slaves’ children—opening vast windows onto the intricacy of enslaved life in antiquity, besides the nitty-gritty of Roman legal thinking. Useful expenditure (impensae utiles) concerned education and training—which enhanced the individual’s (market) value: possible retention claims were offset against the benefits accrued by the husband. Ornamental expenditure (impensae voluptariae) was principally excluded from retention claims. Although they were geared towards the financial protection of husbands, Forschner describes these provisions for retention as weak and, hence, as further evidence for the protection of the wife and her capacity to remarry, recalling the notion that the dowry enslaves the husband.

Rarely do we get a glimpse of the effects of the legal provisions on those actually enslaved in the dowry (servae and servidotales) such as when Forschner discusses the consequences of delay in the dowry’s return upon divorce. Once divorced, the husband was no longer responsible for damage to the dowry, unless caused by evil design (dolus malus). Citing Paul (Digest 24.3.26), Forschner concludes that a divorced husband under economic duress could not be charged for starving the enslaved: ‘Stellt sich auf Seiten des Ehemannes ein Versorgungsengpass ein, kann er den Dotalsklaven verhungern lassen, ohne ersatzpflichtig zu werden’ (148). As Forschner rightly notes, the consequences could be disastrous for dotal slaves: ‘Eine solche Haftungserleichterung kann für Dotalsklaven zu dramatischen Folgen führen’ (148). The issue returns in his discussion of the children of dotal slaves, explored under the broader heading of the uses and ‘fruits’ drawn from the dowry (‘Nutzungen, Früchte und Kinder des Dotalsklaven’, 153–98). Given the husband’s right to the dotal fruits, the exclusion of children born into slavery from the juridical definition of fruits was key to keeping mother and child together. Forschner devotes considerable space to discussing a seemingly problematic passage from Ulpian (Digest5.3.27 pr.), which has been understood to mean that the exclusion only applied because (and when) women were not bought for the purpose of breeding. Analysing sales contracts documenting the centrality of enslaved women’s fecundity and parallels with the exploitation of working animals, besides divergent Ulpianic opinions, Forschner speaks of inconsistency in Ulpian’s view and the wider reasoning: ‘die potenziell widersprüchlichen Argumente, die Ulpian selbst vorbringt, bezeugen die Inhomogenität der dem anerkannten juristischen Ergebnis unterliegenden Begründungsstruktur’ (175). Citation of one of Ulpian’s modern counterparts, the late Lord Rodger of Earlsferry, would have saved much effort, given Rodger’s magisterial demonstration of a misconstruction, on the part of modern scholarship, of Ulpian’s seemingly divergent ruling.[4]

The final two chapters concentrate on the responsibilities pertaining to loss and depreciation (‘Ersatzpflicht für Verlust und Verschlechterungen’, 198–228) and delicts committed by dotal slaves (‘Haftung bei durch den Dotalsklaven begangenen Delikten’, 228–33). Multiple legal scenarios differentiate the husband’s liability depending on whether the dowry was formally estimated: if estimated, the husband was liable even if he was not responsible for the loss or depreciation. As Forschner illustrates, this also applied to children born to dotal slaves (implying that it was not in the interest of the husband to put a value on them). The divergent interests of the marriage partners also show when dotal slaves cause damage to one or other. Intriguingly, the jurist Paul held that the wife was responsible when a dotal slave stole from her husband if she knew of their predilection for theft (Digest Forschner’s contextualisation foregrounds simultaneously the husband’s interest in not punishing the dotal slave, given the loss in value subject to compensation in case of divorce.

The many intriguing cases assembled by Forschner provide much food for thought. The few cited examples accentuate however a painful consequence of Forschner’s focus on juridical writing – the marginalisation of the position of the enslaved. Forschner’s dotal slave appears like the shuttle on Penelope’s loom: pushed hither and thither between two parties, subject to changing contexts and interests. While Zimmerman associated the dotal slave’s siding with the wife with earlier household familiarity, Forschner’s account of the jurists’ interest in dotal slaves from sources other than the wife’s household underlines their essential structural isolation (90–98). Forschner is surely right to challenge the dotal slave’s often assumed privileged status: ‘Der Mitgiftsklave […] ist freilich durch seine rechtliche doppelte Zuordnung zu Ehemann (dominium) und Ehefrau (res uxoria) verletztlicher, da sein Schicksal bestimmt ist von einem dichten Geflecht schwer prognostizierbarer und potenziell widerstreitender Interessen’ (235). Nevertheless, he holds that the dotal dimension had little or no influence on this slave’s standing: ‘ein normaler Sklave, dessen Dotaleigenschaft auf seinen Stand innerhalb der Sklavenschicht nicht notwendigerweise von Einfluss war’ (238).

Forschner’s conclusion about the dotal slave’s normality chimes with his introductory socio-historical sketch focused on the Plautine servus dotalis Saurea, from the Comedy of Asses, whose seemingly privileged status arose, so Forschner argues, from his role as atriensis, not his dotal dimension (67–89). Forschner’s juridical exposition encourages actually a different take: whatever the structural adversities to enslaved life generally, the dotal slaves’ unpredictable location between two extremes leaves them in permanent limbo, forced to opportunistic engagement 24/7, incapable of commitment, being systematically alienated and effaced. No wonder Saurea plays no role in his own right in the Asses, which comically impersonates his bipolar condition through the L-and-L-double act, slighting him throughout. Separation, not belonging, is his lot. Privileged this Saurea appears rather not, nor unaffected by his dotal dimension. Unaware moreover of Apuleius’ dotal slave (‘Eine außerjuristische Ausnahme existiert lediglich mit der in Plautus’ Asinaria gezeichneten Figur des Dotalsklaven Saurea’, 237), Forschner misses an important comparative moment, between the ASSes and the ASS.[5] In the latter, the villainous dotalis servulus functions initially to discredit the wicked stepmother, if read with the jurist Paul, cited above. More critically, Mr. Of-the-dowry’s actions change meaning if contextualised through marriage breakdown: upon divorce, he will expect to depart with the wife of the man who holds dominium over him. This legal situation, not household familiarity, forces him to side with malice if requested. Little surprise that in this tale awash in emotions, expressed and implied, his are effaced from the text but for a momentary lapse of composure, much like Saurea’s from the stage. The wickedness ascribed to the dotal slave arises from his specific condition, not his character. Rethinking both Book 10 of the Ass and the Asses with the deplorable lot of dotal slaves in mind, intra- and intertextually, will enhance not only those texts’ modern appreciation, but also the socio-historical understanding of servae and servi dotales in Roman slavery and life. Forschner deserves credit for highlighting the complexities of the web in which dotal slaves were caught.

Translation of the copious Latin legal passages cited would have facilitated engagement with the Romans’ handling of dotal slaves by non-classically trained historians of slavery, from Neo-Babylonian Mesopotamia via colonial Peru to the Antebellum South, enabling meaningful cross-cultural assessment of the dotal slave’s lot in human history.


[1] R.A. Kaster, ‘The dynamics of ‘fastidium’ and the ideology of disgust’, TAPA 131 (2001), 143-89, at 144.

[2] M. Zimmerman, Apuleius Madaurensis. Metamorphoses. Book X. Text, Introduction and Commentary (Groningen, 2000), 105-6.

[3] Cf. J.F. Stagl, Favor dotis. Die Privilegierung der Mitgift im System des römischen Rechts (Vienna, 2009).

[4] A. Rodger, ‘A very good reason for buying a slave woman?’, Law Quarterly Review 123 (2007), 451-3. Distance from recent scholarship is also notable elsewhere, e.g. regarding the relationship between Plautine Witz and its servile audience (76-81), or the productive roles of enslaved women (especially in relation to child-care in slavery): 140-2.

[5] Another notable example: Seneca, Controversiae 7.6.