3. Why marry?
Pseudo-Demostenes, Against Neira:
This is matrimony: when a man begets children
and presents his sons to his phratry and deme,
and gives his daughters, as being his own in
marriage to their husbands. Hetaerae we keep for
our pleasure, concubines / servants (pallakai) for
daily attendance upon our person, but wives for
the procreation of legitimate children and to be
the faithful guardians of our households.
4. The Roman View
Modestinus....
D. 23.2.1 (Modestinus, [28] Rules, book 1).
Marriage is the union of male and female
and the sharing of life together (consortium
omnis vitae), involving both divine and
human law.
5. One must marry: Augustus’ reasoning
of his Laws on Marriage: a quote from 131BC
speech of Q. Caecilius Metellus Macedonicus:
... if we could survive without
a wife, citizens of Rome, all of
us would do without that
nuisance; but since nature has
so decreed that we cannot
manage comfortably with
them, nor live in any way
without them,we must plan for
our lasting preservation rather
than for our temporary
pleasure.
6. Cato and the Metaphor
of the Noble Soil
• Marcus Porcius Cato Uticensis
• Marcia
• Quintus Hortensius Hortalus
• Marcus Calpurnius Bibulus
7. Plutarch, Life of Cato
Then he married a daughter of Philippus, Marcia, a
woman of reputed excellence, about whom there was
the most abundant talk; and this part of Cato's life, like a
drama, has given rise to dispute and is hard to explain.
Quintus Hortensius:
‘According to the opinion of men, he argued, such a
course was absurd, but according to the law of
nature it was honourable and good for the state that a
woman in the prime of youth and beauty should neither
quench her productive power and lie idle, nor yet,
by bearing more offspring than enough, burden and
impoverish a husband who does not want them’.
8. Plutarch, Life of Cato
Moreover, community in heirs among worthy men
would make virtue abundant and widely diffused in their
families, and the state would be closely cemented together
by family alliances.
Then Hortensius changed his tactics and boldly asked for
the wife of Cato himself, since she was still young enough to
bear children, and Cato had heirs enough.
However, seeing the earnestness and eager desire of
Hortensius, Cato would not refuse, but said that Philippus
also, Marcia's father, must approve of this step. Accordingly,
Philippus was consulted and expressed his consent, but he
would not give Marcia in marriage until Cato himself was
present and joined in giving the bride away.
11. Why do they bid the bride
touch fire and water?
12. Why do they bid the bride
touch fire and water?
• Is it that of these two, being reckoned as elements or first principles, fire
is masculine and water feminine, and fire supplies the beginnings of
motion and water the function of the subsistent element or the
material?
13. Why do they bid the bride
touch fire and water?
• Is it that of these two, being reckoned as elements or first principles, fire
is masculine and water feminine, and fire supplies the beginnings of
motion and water the function of the subsistent element or the
material?
• Or is it because fire purifies and water cleanses, and a married woman
must remain pure and clean?
14. Why do they bid the bride
touch fire and water?
• Is it that of these two, being reckoned as elements or first principles, fire
is masculine and water feminine, and fire supplies the beginnings of
motion and water the function of the subsistent element or the
material?
• Or is it because fire purifies and water cleanses, and a married woman
must remain pure and clean?
• Or is it that, just as fire without moisture is unsustaining and arid, and
water without heat is unproductive and inactive, so also male and
female apart from each other are inert, but their union in marriage
produces the perfection of their life together?
15. Why do they bid the bride
touch fire and water?
• Is it that of these two, being reckoned as elements or first principles, fire
is masculine and water feminine, and fire supplies the beginnings of
motion and water the function of the subsistent element or the
material?
• Or is it because fire purifies and water cleanses, and a married woman
must remain pure and clean?
• Or is it that, just as fire without moisture is unsustaining and arid, and
water without heat is unproductive and inactive, so also male and
female apart from each other are inert, but their union in marriage
produces the perfection of their life together?
• Or is it that they must not desert each other, but must share together
every sort of fortune, even if they are destined to have nothing other
than fire and water to share with each other?
16. Why do they not allow the bride
to cross the threshold of her
home herself, but those who
are escorting her lift her over?
17. Why do they not allow the bride
to cross the threshold of her
home herself, but those who
are escorting her lift her over?
• Is it because they carried off by force also the first Roman brides and
bore them in in this manner, and the women did not enter of their
own accord?
18. Why do they not allow the bride
to cross the threshold of her
home herself, but those who
are escorting her lift her over?
• Is it because they carried off by force also the first Roman brides and
bore them in in this manner, and the women did not enter of their
own accord?
• Or do they wish it to appear that it is under constraint and not of
their own desire that they enter a dwelling where they are about to
lose their virginity?
19. Why do they not allow the bride
to cross the threshold of her
home herself, but those who
are escorting her lift her over?
• Is it because they carried off by force also the first Roman brides and
bore them in in this manner, and the women did not enter of their
own accord?
• Or do they wish it to appear that it is under constraint and not of
their own desire that they enter a dwelling where they are about to
lose their virginity?
• Or is it a token that the woman may not go forth of her own accord
and abandon her home if she be not constrained, just as it was under
constraint that she entered it? So likewise among us in Boeotia they
burn the axle of the bridal carriage before the door, signifying that
the bride must remain, since her means of departure has been
destroyed.
20. Why do they, as they conduct the
bride to her home, bid her say,
“Where you are Gaius,
there am I Gaia”?
21. Why do they, as they conduct the
bride to her home, bid her say,
“Where you are Gaius,
there am I Gaia”?
• Is her entrance into the house upon fixed terms, as it were, at
once to share everything and to control jointly the
household, and is the meaning, then, "Wherever you are lord
and master, there am I lady and mistress"? These names are
in common use also in other connexions, just as jurists speak
of Gaius Seius and Lucius Titius, and philosophers of Dion
and Theon.
22. Why do they, as they conduct the
bride to her home, bid her say,
“Where you are Gaius,
there am I Gaia”?
• Is her entrance into the house upon fixed terms, as it were, at
once to share everything and to control jointly the
household, and is the meaning, then, "Wherever you are lord
and master, there am I lady and mistress"? These names are
in common use also in other connexions, just as jurists speak
of Gaius Seius and Lucius Titius, and philosophers of Dion
and Theon.
• Or do they use these names because of Gaia Caecilia,
consort of one of Tarquin's sons, a fair and virtuous woman,
whose statue in bronze stands in the temple of Sanctus? And
both her sandals and her spindle were, in ancient days,
dedicated there as tokens of her love of home and of her
industry respectively
29. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
30. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
31. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
32. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
which can be expressed between two people
33. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
which can be expressed between two people
2. of legal age
34. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
which can be expressed between two people
2. of legal age
having
35. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
which can be expressed between two people
2. of legal age
having
3. conubium
36. Pre-requisites of marriage
Excerpts from the Works of Ulpian, 5.2: A valid (legitimate)
marriage is made, when there is conubium between the
contracting parties, and if the man is adult and the woman is
able to procreate, and if both of them agree, if they are
autonomous or also their fathers, if they are still in their power.
Pre-requites of a legally recognised union (iustum
matrimonium):
1. affectio maritalis
which can be expressed between two people
2. of legal age
having
3. conubium
in regard to one another
37. Creation of Marriage
Affectio maritalis
D. 23.2.2 (Paul, Edict, book 35) A marriage
can only exist if all agree, that is the parties
and those in whose power they are.
39. affectio maritalis and
its continuos character
Edoardo Volterra and his role in the modern view
on Roman marriage: from the initial consent to the
continuity of its expression.
40. affectio maritalis and
its continuos character
Edoardo Volterra and his role in the modern view
on Roman marriage: from the initial consent to the
continuity of its expression.
major arguments:
41. affectio maritalis and
its continuos character
Edoardo Volterra and his role in the modern view
on Roman marriage: from the initial consent to the
continuity of its expression.
major arguments:
informality of divorce
42. affectio maritalis and
its continuos character
Edoardo Volterra and his role in the modern view
on Roman marriage: from the initial consent to the
continuity of its expression.
major arguments:
informality of divorce
non-existence of bigamy in Roman law (Cicero
and the Spanish wife.)
43. affectio maritalis and
its continuos character
Edoardo Volterra and his role in the modern view
on Roman marriage: from the initial consent to the
continuity of its expression.
major arguments:
informality of divorce
non-existence of bigamy in Roman law (Cicero
and the Spanish wife.)
Marital liberty as the principle of ordre publique
44. the problems...
D. 24.1.64. Javolenus, On the Last Works of Labeo, Book VI.
A man gave something to his wife after a divorce had taken place,
to induce her to return to him; and the woman, having returned,
afterwards obtained a divorce. Labeo and Trebatius gave it as
their opinion in a case which arose between Terentia and
Maecenas, that if the divorce was genuine, the donation would be
valid, but if it was simulated, it would be void. However, what
Proculus and Caecilius hold is true, namely, that a divorce is
genuine, and a donation made on account of it is valid, where
another marriage follows, or the woman remains for so long a
time unmarried that there is no doubt of a dissolution of the
marriage, otherwise the donation will be of no force or effect.
46. the problems with
affectio maritalis
uncertainty of status (as legitimate
children enter under patria potestas and
automatically obtain citizenship)
47. the problems with
affectio maritalis
uncertainty of status (as legitimate
children enter under patria potestas and
automatically obtain citizenship)
financial problems (gifts and dowries!)
48. the problems with
affectio maritalis
uncertainty of status (as legitimate
children enter under patria potestas and
automatically obtain citizenship)
financial problems (gifts and dowries!)
penal issues (exemption from the
sanctions for stuprum and adulterium
49. The presumption
of marriage?
D. 23.2.24 (Modestinus, Rules, book 1). Cohabitation
with a free woman is to be considered marriage not
concubinage, unless she is a prostitute
D. 24.2.3. Paulus, On the Edict, Book XXXV.
It is not a true or actual divorce unless the purpose is
to establish a perpetual separation. Therefore,
whatever is done or said in the heat of anger is not
valid, unless the determination becomes apparent by
the parties persevering in their intention, and hence
where repudiation takes place in the heat of anger and
the wife returns in a short time, she is not held to have
been divorced.
50. the consent
of the father...
D. 23.2.21. Terentius Clemens, On the Lex Julia
et Papia, Book III. A son under paternal control
cannot be forced to marry.
D. 23.2.22 (Celsus, Digest, book 15). If under
pressure from his father a man takes a wife,
whom he would not have married if he had
followed his own inclination, still, though there
is no marriage without consent, he contracted a
marriage; he is regarded as having preferred to
do so.
52. the consent
of the father...
D. 23.1.11 (Julianus, Digest, book 16). Engagement like
marriage comes about by the consent of the parties, and so a
daughter-in-power's consent is needed for an engagement as it
is for a marriage.
53. the consent
of the father...
D. 23.1.11 (Julianus, Digest, book 16). Engagement like
marriage comes about by the consent of the parties, and so a
daughter-in-power's consent is needed for an engagement as it
is for a marriage.
23.1.12 (Ulpian, On Betrothal, sole book) (pr.) A daughter who
does not oppose her father's will [as regards her engagement] is
taken to agree. (1) She is free to disagree only if her father
chooses her a fiancé who is unworthy or of bad character.
54. the consent
of the father...
D. 23.1.11 (Julianus, Digest, book 16). Engagement like
marriage comes about by the consent of the parties, and so a
daughter-in-power's consent is needed for an engagement as it
is for a marriage.
23.1.12 (Ulpian, On Betrothal, sole book) (pr.) A daughter who
does not oppose her father's will [as regards her engagement] is
taken to agree. (1) She is free to disagree only if her father
chooses her a fiancé who is unworthy or of bad character.
23.1.7.1 (Paul, Edict, book 35) For an engagement the same
people have to agree as for a marriage. Nevertheless, Julian
writes that the father of a daughter-in-power is understood to
consent unless he explicitly disagrees.
56. Conubium
a relative capacity inherent to ius
civile
corresponds – even if negatively
and anachronistically – to the
canonistic-modern notion of
matrimonial impediments
58. lack of
conubium
• difference of genders: (legally irrelevant: Nero and Pytha-
goras)
59. lack of
conubium
• difference of genders: (legally irrelevant: Nero and Pytha-
goras)
• blood-relation
60. lack of
conubium
• difference of genders: (legally irrelevant: Nero and Pytha-
goras)
• blood-relation
• in direct line: totally
61. lack of
conubium
• difference of genders: (legally irrelevant: Nero and Pytha-
goras)
• blood-relation
• in direct line: totally
• in collateral line: up to the 4th grade (3rd grade)
62. lack of
conubium
• difference of genders: (legally irrelevant: Nero and Pytha-
goras)
• blood-relation
• in direct line: totally
• in collateral line: up to the 4th grade (3rd grade)
• why incest is forbidden?
63. Plutarch, Roman Questions 108:
Why do they not marry women who are closely
akin to them? Do they wish to enlarge their
relationships by marriage and to acquire many
additional kinsmen by bestowing wives upon
others and receiving wives from others? Or do
they fear the disagreements which arise in
marriages of near kin, on the ground that these
tend to destroy natural rights? Or, since they
observe that women by reason of their weakness
need many protectors, were they not willing to
take as partners in their household women
closely akin to them, so that if their husbands
wronged them, their kinsmen might bring them
succour?
65. Gnomon § 23
κγ οὐκ ἐξὸν Ῥωμαίοις ἀδελφὰς γῆμαι οὐδὲ τηθίδας,
ἀδελφῶν θυγατέρας συνκεχώρηται. Παρδαλᾶς μέντοι
ἀδελφῶν συνελθόντων τὰ ὑπάρχοντα/ ἀνέλαβεν.
§ 23 It shall not be allowed for the Romans to marry
sisters or aunts. It is permitted in case of brothers’
daughters. Pardalas indeed confiscated estates of
married siblings.
69. No conubium cnd.
•patricians and plebeians
•The law of XII Tables
•Liwius: ne incerta prole auspicia
turberentur.
70. No conubium cnd.
•patricians and plebeians
•The law of XII Tables
•Liwius: ne incerta prole auspicia
turberentur.
•the reasons of lex Canuleia.
71. No conubium cnd.
•patricians and plebeians
•The law of XII Tables
•Liwius: ne incerta prole auspicia
turberentur.
•the reasons of lex Canuleia.
•soldiers during their service
72. No conubium cnd.
•patricians and plebeians
•The law of XII Tables
•Liwius: ne incerta prole auspicia
turberentur.
•the reasons of lex Canuleia.
•soldiers during their service
•Roman officials and the women
in the province.
75. Lack of
conubium
• people from the senatorial estate and low-
class occupations as well as freedmen
• Jews and christians
76. Free Marriages:
how far do they go?
• D. 24.2.10. Modestinus, Rides, Book I. A
freedwoman, who has married her
patron, cannot separate from him without
his consent, unless she has been
manumitted under the terms of a trust,
for then she can do so even though she is
his freedwoman.
77. Freed-Women -
reconsidered
11. Ulpianus, On the Lex Julia et Papia, Book III. Where
the law says: “A freedwoman, who is married to her patron,
shall not be granted the right to divorce” this is not held to
have made the divorce ineffective, because marriage is
ordinarily dissolved by the Civil Law; therefore we cannot
say that the marriage exists, as a separation has taken place.
Again, Julianus says that a wife is not under such
circumstances entitled to an action to recover her dowry;
hence it is reasonable that when her patron desires her to
remain his wife she cannot marry anyone else. For, as the
legislator understood that the marriage was, to a certain
extent, dissolved by the act of the freedwoman, he
prevented her marriage with another, wherefore if she
should marry anyone else, she will be considered as not
married. Julianus, indeed, goes farther, for he thinks that
such a woman cannot even live in concubinage with anyone
except her patron.
78. Freed-Women -
reconsidered
11. Ulpianus, On the Lex Julia et Papia, Book III. Where
the law says: “A freedwoman, who is married to her patron,
shall not be granted the right to divorce” this is not held to
have made the divorce ineffective, because marriage is
ordinarily dissolved by the Civil Law; therefore we cannot
say that the marriage exists, as a separation has taken place.
Again, Julianus says that a wife is not under such
circumstances entitled to an action to recover her dowry;
hence it is reasonable that when her patron desires her to
remain his wife she cannot marry anyone else. For, as the
legislator understood that the marriage was, to a certain
extent, dissolved by the act of the freedwoman, he
prevented her marriage with another, wherefore if she
should marry anyone else, she will be considered as not
married. Julianus, indeed, goes farther, for he thinks that
such a woman cannot even live in concubinage with anyone
except her patron.
79. Freed-Women -
reconsidered
11. Ulpianus, On the Lex Julia et Papia, Book III. Where
the law says: “A freedwoman, who is married to her patron,
shall not be granted the right to divorce” this is not held to
have made the divorce ineffective, because marriage is
ordinarily dissolved by the Civil Law; therefore we cannot
say that the marriage exists, as a separation has taken place.
Again, Julianus says that a wife is not under such
circumstances entitled to an action to recover her dowry;
hence it is reasonable that when her patron desires her to
remain his wife she cannot marry anyone else. For, as the
legislator understood that the marriage was, to a certain
extent, dissolved by the act of the freedwoman, he
prevented her marriage with another, wherefore if she
should marry anyone else, she will be considered as not
married. Julianus, indeed, goes farther, for he thinks that
such a woman cannot even live in concubinage with anyone
except her patron.
80. (1) The law says: “As long as the patron desires her to remain his wife.” This
means that the patron wishes her to be his wife, and that his relationship
towards her should continue to exist; therefore where he either ceases to be
her patron, or to desire that she should remain his wife, the authority of the
law is at an end. (2) It has been most justly established that the benefit of this
law terminated whenever the patron, by any indication of his will whatsoever,
is understood to have relinquished his desire to keep the woman as his wife.
Hence, when he institutes proceedings against his freedwoman on the ground
of the removal of property, after she had divorced him without his consent,
our Emperor and his Divine Father stated in a Rescript that the party was
understood to be unwilling that the woman should remain his wife, when he
brings this action or another like it, which it is not customary to do unless in
case of divorce. Wherefore, if the husband accuses her of adultery or of some
other crime of which no one can accuse a wife but her husband, the better
opinion is that the marriage is dissolved; for it should be remembered that the
wife is not deprived of the right to marry another except where the patron
himself desires to retain her in that capacity. Hence, whenever even a slight
reason indicates that the husband does not desire her to remain his wife, it
must be said that the freedwoman has already acquired the right to contract
marriage with another. Therefore, if the patron has betrothed himself to, or
destined himself for some other woman, or has sought marriage with another,
he must be considered to no longer desire the freedwoman to be his wife. The
same rule will apply where he keeps the woman as his concubine.
81. (1) The law says: “As long as the patron desires her to remain his wife.” This
means that the patron wishes her to be his wife, and that his relationship
towards her should continue to exist; therefore where he either ceases to be
her patron, or to desire that she should remain his wife, the authority of the
law is at an end. (2) It has been most justly established that the benefit of this
law terminated whenever the patron, by any indication of his will whatsoever,
is understood to have relinquished his desire to keep the woman as his wife.
Hence, when he institutes proceedings against his freedwoman on the ground
of the removal of property, after she had divorced him without his consent,
our Emperor and his Divine Father stated in a Rescript that the party was
understood to be unwilling that the woman should remain his wife, when he
brings this action or another like it, which it is not customary to do unless in
case of divorce. Wherefore, if the husband accuses her of adultery or of some
other crime of which no one can accuse a wife but her husband, the better
opinion is that the marriage is dissolved; for it should be remembered that the
wife is not deprived of the right to marry another except where the patron
himself desires to retain her in that capacity. Hence, whenever even a slight
reason indicates that the husband does not desire her to remain his wife, it
must be said that the freedwoman has already acquired the right to contract
marriage with another. Therefore, if the patron has betrothed himself to, or
destined himself for some other woman, or has sought marriage with another,
he must be considered to no longer desire the freedwoman to be his wife. The
same rule will apply where he keeps the woman as his concubine.
82. Fritz Schulz (1879-1957)
and the “Humanity”
of Roman law
“The classical law of marriage is an imposing,
perhaps the most imposing, achievement of the
Roman legal genius. For the first time in the
history of civilization there appeared a purely
humanistic law of marriage, viz. a law founded
on a purely humanistic idea of marriage as
being a free and freely dissoluble union of two
equal partners for life”
85. Manus and Marriage
• Conventio in manu mariti:
• Confarreatio : ‘by spelt bread’
86. Manus and Marriage
• Conventio in manu mariti:
• Confarreatio : ‘by spelt bread’
• Coëmptio: ‘by ritual sale’
87. Manus and Marriage
• Conventio in manu mariti:
• Confarreatio : ‘by spelt bread’
• Coëmptio: ‘by ritual sale’
• Usus : ‘usucaption of power’.
88. Confarreatio
• § 112. Confarreation, another mode in
which subjection to hand originates, is a
sacrifice offered to Jupiter Farreus, in which
they use a cake of spelt, whence the
ceremony derives its name, and various
other acts and things are done and made in
the solemnization of this disposition with a
traditional form of words, in the presence
of ten witnesses: and this law is still in use,
for the functions of the greater flamens,
that is, the flamens of Jove, of Mars, of
Quirinus, and the duties of the ritual king,
can only be performed by persons born in
marriage solemnized by confarreation. Nor
can such persons themselves hold a priestly
office if they are not married by
confarreation.
89. Coemptio
• § 113. In coemption the right of hand over a
woman attaches to a person to whom she is
conveyed by a mancipation or imaginary sale:
for the man purchases the woman who comes
into his power in the presence of at least five
witnesses, citizens of Rome above the age of
puberty, besides a balance holder.
90. USUS
• 111. Use invested the husband with right of hand
after a whole year of unbroken cohabitation. Such
annual possession operated a kind of usucapion, and
brought the wife into the family of the husband,
where it gave her the status of a daughter.
Accordingly, the law of the Twelve Tables provided
that a wife who wished to avoid subjection to the hand
of the husband should annually absent herself three
nights from his roof to bar the annual usucapion: but
the whole of this law has been either partly abolished
by statute, or partly obliterated by mere disuse.
92. Lex Iulia et Pappia de maritandis
ordinibus; Lex Iulia de adulteris
Augustus' law. Rome, 18 B.C. (Suetonius, Life of Augustus 34. L)
He reformed the laws and completely overhauled some of them, such as the
sumptuary law, that on adultery and chastity, that on bribery, and marriage
of the various classes. Having shown greater severity in the emendation of
this last than the others, as a result of the agitation of its opponents he was
unable to get it approved except by abolishing or mitigating part of the
penalty, conceding a three-year grace-period (before remarriage) and
increasing the rewards (for having children). Nevertheless, when, during a
public show the order of knights asked him with insistence to revoke it, he
summoned the children of Germanicus, holding some of them near him
and setting others on their father's knee; and in so doing he gave the
demonstrators to understand through his affectionate gestures and
expressions that they should not object to imitating that young man's
example. Moreover, when he found out that the law was being sidestepped
through engagements to young girls and frequent divorces, he put a time
limit on engagement and clamped down on divorce.
93. Lex Iulia et Pappia de maritandis
ordinibus; Lex Iulia de adulteris
Prizes for marriage and having children. Rome, 1st
cent. A.D. (Dio Cassius, History of Rome 54.16.1-1.
Early 3rd cent. A.D. G)
[Augustus] assessed heavier taxes on unmarried men
and women without husbands, and by contrast offered
awards for marriage and childbearing. And since there
were more males than females among the nobility, he
permitted anyone who wished (except for senators) to
marry freedwomen, and decreed that children of such
marriages be legitimate.
94. ‘Lex Iulia et Papia’
• Sanctions
• Law of succession (ability to receive from
wills: cut to half for childless and entirely
for unmarried)
• Rewards:
• Ius trium liberorum (guardianship of
women, privileges for men).
95. Lex Iulia de adulteris
2.26 (1) In the second chapter of the lex Julia concerning
adultery, either an adoptive or a natural father is
permitted to kill with his own hands an adulterer caught
in the act with his daughter in his own house or in that of
his son-in-law, no matter what his rank may be.
(2) If a son under paternal power, who is the father,
should surprise his daughter in the act of adultery, while
it is inferred from the words of the law that he cannot kill
her, still, he ought to be permitted to do so.
(4) A husband cannot kill anyone taken in adultery except
persons who are infamous, and those who sell their
bodies for gain, as well as slaves. His wife, however, is
excepted, and he is forbidden to kill her.
96. Lex Iulia de adulteris
(5) It has been decided that a husband who kills his wife when
caught with an adulterer should be punished more leniently,
for the reason that he committed the act through impatience
caused by just suffering.
(6) After having killed the adulterer, the husband should at
once dismiss his wife, and publicly declare within the next
three days with what adulterer, and in what place he found his
wife.
(7) A husband who surprises his wife in adultery can only kill
the adulterer when he catches him in his own house.
(8) It has been decided that a husband who does not at once
dismiss his wife whom he has taken in adultery can be
prosecuted as a pimp.
(10) It should be noted that two adulterers can be accused at
the same time with the wife, but more than that number
cannot be.
(11) It has been decided that adultery cannot be committed
with women who have charge of any business or shop.
97. Lex Iulia de adulteris
C. 9.9.1: Severus/Caracalla to
Cassia (197 AD): The Julian Law
declares that wives have no right to
bring criminal accusations for
adultery, even as regards their own
marriage, for while the law grants
this privilege to men it does not
concede it to women….
99. Results? Res gestae divi Augusti
8. When I was consul the fifth time (29 B.C), I increased the
number of patricians by order of the people and senate. I
read the roll of the senate three times, and in my sixth
consulate (28 B.C.) I made a census of the people with
Marcus Agrippa as my colleague. I conducted a lustrum,
after a forty-one year gap, in which lustrum were counted
4,063,000 heads of Roman citizens. Then again, with
consular imperium I conducted a lustrum alone when
Gaius Censorinus and Gaius Asinius were consuls (8 B.C),
in which lustrum were counted 4,233,000 heads of Roman
citizens. And the third time, with consular imperium, I
conducted a lustrum with my son Tiberius Caesar as
colleague, when Sextus Pompeius and Sextus Appuleius
were consuls (AD 14), in which lustrum were cunted
4,937,000 of the heads of Roman citizens. By new laws
passed with my sponsorship, I restored many traditions of
the ancestors, which were falling into disuse in our age, and
myself I handed on precedents of many things to be
imitated in later generations.
103. August and his wives....
62. In his youth he was betrothed to the daughter of Publius Servilius
Isauricus, but when he became reconciled with Antony after their first
quarrel, and their troops begged that the rivals be further united by
some tie of kinship, he took to wife Antony's stepdaughter Claudia,
daughter of Fulvia by Publius Clodius, although she was barely of
marriageable age; but because of a falling out with his mother-in-law
Fulvia, he divorced her before they had begun to live together. Shortly
after that he married Scribonia, who had been wedded before to two
ex-consuls, and was a mother by one of them. He divorced her also,
"unable to put up with her shrewish disposition," as he himself writes,
and at once took Livia Drusilla from her husband Tiberius Nero,
although she was with child at the time; and he loved and esteemed her
to the end without a rival.
105. August and his daughter....
63 By Scribonia he had a daughter Julia, by Livia no children at all,
although he earnestly desired issue. One baby was conceived, but was
prematurely born. He gave Julia in marriage first to Marcellus, son of
his sister Octavia and hardly more than a boy, and then after his death
to Marcus Agrippa, prevailing upon his sister to yield her son-in-law to
him; for at that time Agrippa had to wife one of the Marcellas and had
children from her. When Agrippa also died, Augustus, after considering
various alliances for a long time, even in the equestrian order, finally
chose his stepson Tiberius, obliging him to divorce his wife, who was
with child and by whom he was already a father. Mark Antony writes
that Augustus first betrothed his daughter to his son Antonius and then
to Cotiso, king of the Getae, at the same time asking for the hand of the
king's daughter for himself in turn.
106. But at the height of his happiness and his confidence in his family
and its training, Fortune proved fickle. He found the two Julias, his
daughter and granddaughter, guilty of every form of vice, and
banished them. (...) For he was not greatly broken by the fate of
Gaius and Lucius, but he informed the senate of his daughter's fall
through a letter read in his absence by a quaestor, and for very
shame would meet no one for a long time, and even thought of
putting her to death. At all events, when one of her confidantes, a
freedwoman called Phoebe, hanged herself at about that same
time, he said: "I would rather have been Phoebe's father." After
Julia was banished, he denied her the use of wine and every form
of luxury, and would not allow any man, bond or free, to come
near her without his permission, and then not without being
informed of his stature, complexion, and even of any marks or
scars upon his body. It was not until five years later that he moved
her from the island to the mainland and treated her with somewhat
less rigour. But he could not by any means be prevailed on to recall
her altogether, and when the Roman people several times
interceded for her and urgently pressed their suit, he in open
assembly called upon the gods to curse them with like daughters
and like wives.
108. Why a Wife is not a
Prostitute?
For commonly ‘tis thought that wives conceive
More readily in manner of wild-beasts,
After the custom of the four-foot breeds,
Because so postured, with the breasts beneath
And buttocks then up-reared, the seeds can take
Lucretius,
Their proper places. Nor is need the least de rerum natura
For wives to use the motions of blandishment;
For thus the woman hinders and resists
Her own conception, if too joyously
Herself she treats the Venus of the man
With haunches heaving, and with all her bosom
Now yielding like the billows of the sea-
Aye, from the ploughshare’s even course and track
She throws the furrow, and from proper places
Deflects the spurt of seed. And courtesans
Are thuswise wont to move for their own ends,
To keep from pregnancy and lying in,
And all the while to render Venus more
A pleasure for the men- the which meseems
Our wives have never need of.