Paternal power after death: Rome in the nineteenth century

Abstract

The existence of minors in a family or among other relatives induces the person drawing up a will to stiffen the roles, to specify the different futures of men and women more clearly and to single out the conditions which may guarantee the duties assigned. These principles are included not only in the wills of the fathers of families but often also characterize the wills of mothers or other relatives, both men and women. And maybe they also explain, as we shall see, the reasons for which it becomes difficult to decide to totally entrust the management, care and guardianship of a patrimony or one’s own minor offspring to a woman.

Keywords:

• paternal authority
• minors
• guardianship
• testaments

Notes

^1. On ‘the constant diminution of the percentage of testators with minor children’, in particular in view of a later age for marriage see Cavallo (1998, p. 200).

^2. Archivio di Stato di Roma (ASR), Trenta Notai Capitolini (TNC), Uff. 7, Testamenti, a. 1851, f. 133.

^3. For the Italian version of the Code see: Codice di Napoleone Il Grande per Regno d'Italia, Milano, Dalla Reale Stamperia, MDCCCVI. For the original text in which these norms are indicated see: Bulletin des Lois de la République Française, 3° série. Tome Huitième, A Paris, Vendémmiaire an XII, p. 50.

^4. Codice di Napoleone, cit..

^5. The last statute in force before the Napoleonic period was the one signed by Pope Gregory XIII: Statuta Almae Urbis Romae authoritate Gregorii PP XIII a Senatu Populoque Romano edita, Romae 1580.

^6. Statuta Almae, cit., L. I, cap. CXLI.

^7. Statuta Almae, cit., L. I, cap. CLI. On this principle see Feci (2004).

^8. Statuta Almae, cit. L. I, cap. 133, p. 204. It must be remembered that a ruling by Gregory XIII in 1834 introduced certain reforms concerning inheritance laws. A daughter had the right to inherit from her father if she was an only child (art. 17) and ‘the exclusion of females and brothers and sisters-in law […] from wills drawn up by females’ was forbidden (art. 16) Regolamento legislativo e giudiziario per gli affari civili emanato dalla Santità di Nostro Signore Papa Gregorio Papa XVI con moto proprio del 10 novembre 1834 […], Roma 1834. On the influence of the Napoleonic codes in the legal history of the Pontifical State see: Mombelli Castracane (1995).

^9. Statuta Almae, cit. L. I, cap. XLVIII. See also chap. CLII, p. 263, which introduces the principle of the nullity of any contract stipulated by the son of a family – even if not a minor – without his father's consent.

^10. Il codice civile italiano, annotato dall'Avvocato Vincenzo Cattaneo…, Torino 1865, art. 736 e 753. It must be remembered that this code too rendered dowries no longer obligatory though did not forbid them. Dowries were forbidden in Italy only in 1975 with the last reform of the family law. L. 19-5-1975, n. 151, art. 47.

^11. Il codice civile italiano , 1865, art. 242–243. In Section 1 devoted to curators (curatori) there is however an equalitarian disposition concerning an eventual inheritance assigned to minors. ‘Any person who institutes a minor as heir (art. 247) can appoint a special curator merely for the administration of the substance he is transmitting to him even though the minor is under patria potestas’.

^12. Ibid, Tit. VIII, art. 220.

^13. The possibility offered a widow to have recourse to a ‘family council’ (see Civil Code, cit art. 250–251) did not however annul the weakness of her juridical status as compared to that of a widower. It must be remembered, for example, that in the case of a widow's second marriage this must be immediately communicated to the judge, who had the duty to call a meeting of the family council. This same obligation did not apply to widowers. On the workings of family councils in the XIX century in Italy see Guidi (1998, p. 223).

^14. ASR, TNC, Uff. 1, a. 1851, f. 151.

^15. ‘Minors’ – according to the Napoleonic Code – were understood as all offspring, male or female, under the age of 21 (art. 338 p. XI) and in the Papal Statutes of 1580 under 20, but the 1834 Regulations adopted the Napoleonic norm (Regolamento, cit. Tit. II, art. 5), confirmed by the 1865 Civil Code (art. 323).

^16. ASR, TNC, Uff. 7, Testamenti, from 1848 to 1879. In view of a comparison with another notary's office I have also consulted the Uff. 18, from 1850 to 1859.

^17. Concerning this a comparison with the 511 wills may be interesting. In this case the male wills are about 53% (a far lower percentage compared to that of the sample) and the female wills therefore 47%. Here too married men prevail – 68% – while 10% are widowers and 17% single (of whom one half are priests). But the married women are little more than a tenth (11%) while there are considerable quotas of unmarried women (39%) and widows (50%). But one must remember that in the last decades of the eighteenth century – in Rome – barely one quarter of the total number of wills were drawn up by women (Arru, 1998, pp. 361–382). This is a slightly lower percentage than that indicated for Turin, where in 1710 the female wills were more than a third of the total (Cavallo, 1998, p. 193).

^18. As is well known, though the Unitary Civil Code of 1865 abolished the mandatory obligation of dowries, it did not forbid it (art. 2388). And – as is also well known – the dowry régime provided for a dowry being administered, invested and managed entirely by the husband. It also provided for marital authorization for any economic operation by a wife, even over her extra-dotal possessions (art. 134–136).

^19. ASR, TNC, Uff. 1, Testamenti, January 8 1851.

^20. ASR, TNC, Uff. 1, Testamenti, September 2 1837.

^21. ASR, TNC, Uff. 7, Testamenti, January 20 1851.

^22. ASR, TNC, Uff. 7, Testamenti, July 20 1869.

^23. ASR, TNC, Uff. 7, Testamenti, June 18 1861.

^24. ASR, TNC, Uff. 7, Testamenti, July 8 1854.

^25. ASR, TNC, Uff. 7, Testamenti, August 21 1851.

^26. ASR, TNC, Uff. 7, Testamenti, April 29 1859.

^27. ASR, TNC, Uff. 7, Testamenti, January 13 1852.

^28. ASR, TNC, Uff. 7, Testamenti, February 19 1868.

^29. ASR, TNC, Uff. 18, Testamenti, January 21 1851.

^30. It is interesting to note that one of these gentlemen, Francesco Silvani, is a neighbour, the beneficiary of a large trust, who is constantly forced to send supplications to the Pope in order to sell some parts of it and is rather wild in his expenses and crippled with debts, though undoubtedly expert in patrimonial strategies. ASR, TNC, Testamenti, Uff. 27, a. 1853, f. 323.

^31. ASR, TNC, Uff. 18, Testamenti, a. 1850–1859, f. 188.

^32. ASR, Archivio Notarile distrettuale, nuovo versamento 2010, Notaio Poggioli, October 29 1878.

^33. ASR, TNC, Uff. 7, Testamenti, March 19 1875.

^34. ASR, TNC, Uff. 7, Testamenti, March 27 1878.

^35. ASR, TNC, Uff. 7, Testamenti, May 20 1879.

^36. In the sample considered in 56% of the wills the ‘co-curators’ are chosen within the circle of friends or ‘acquaintances’.

^37. ASR, TNC, Uff. 7, Testamenti, August 1 1866 (the italics are mine).

^38. ASR, Notai dei distretti riuniti Roma Velletri (NDRmV), b*710, September 19 1877.

^39. ASR, TNC, Uff. 7, Testamenti, July 29 1851.

^40. ASR, TNC, Uff. 7, Testamenti, December 20, 1867.

^41. ASR, TNC, Uff. 7, Testamenti, September 2 1865. For the migratory history of the Viola family see Arru (2008, pp. 235–282)

^42. ASR, TNC, Uff. 18, Testamenti, January 12 1850.

^43. ASR, TNC, Uff. 7, Testamenti, March 27 1878.

^44. ASR, TNC, Uff. 7, Testamenti, January 19 1874.

^45. ASR, TNC, Uff. 18, Testamenti, July 4 1854.

^46. ASR, TNC, Uff. 7, Testament, April 24 1848.

^47. ASR, TNC, Uff. 7, Testamenti, May 13 1870.

^48. ASR, TNC, Uff. 7, Testamenti, Novembre 18 1851.

^49. Here it must be remembered that both in the pre-unitary Statutes and in the Italian Civil Code after the Unification the husband has the duty to administer his wife's dowry ‘to collect the yield and interest, to require return of the capital’. Besides, a married woman may dispose of her paraphernalia only with her spouse's authorization (marital authorization). See Codice civile, cit. art. 1389 and art. 134. In Italy dowries were no longer obligatory from 1865 though they were only abolished with the new family legislation of 1975. Marital authorization was abolished in 1919.

^50. ASR, TNC, Uff. 7, Testamenti, June 28 1862.

^51. ASR, TNC, Uff. 7, Testamenti, October 19 1872.

^52. ASR, TNC, Uff. 7, Testamenti, September 22 1858, F. 144.

^53. ASR, TNC, Uff. 7, Testamenti, May 23 1859, f. 171 r.

^54. ASR, TNC, Uff. 7, Testamenti, February 19 1868.

^55. ASR, TNC, Uff. 7, Testamenti, January 18 1870.

^56. ASR, TNC, Testamenti, August 21 1851 (quoted according to the official italian translation of the document). On the relationship between instruction and public duties and on the orders given to minor offspring concerning this see Arru (2010).

^57. For conflicts between brothers and sisters concerning the application of the conditions expressed in paternal wills in a period of transition between the Papal Statutes and the new 1865 Civil Code see Arru (2001, pp. 189–210)

^58. It must be remembered that the 1865 Civil Code provides for a wife being forbidden ‘to donate, alienate real estate […] contract loans, cede or collect capital […] without her husband's consent’. Civil Code. cit. art. 134.