Marriage

Marriage

In a society with an advanced level of agriculture, an economy capable of producing, at certain levels, a significant surplus, and a clearly defined hierarchical social order, one should expect to find that the arrangements for marriage, as for transmission of property by inheritance, show a concern to maintain the status of the family as a whole by maintaining the status of the sons and daughters in each generation. Certain features are to be expected, such as selection by the family of suitable partners (arranged marriages), monogamy (to avoid too much dispersal of property) and dowry provision.1 More will be said about dowry later; meanwhile, it is interesting to note that the younger Pliny on one occasion (Ep. 6.32) contributes to the dowry of a friend’s daughter in order to enable her to keep up appearances appropriate to her husband’s position. In all three respects, then, Roman marriage arrangements conform to the pattern.

The Legal Requirements for Marriage

Certain conditions must have been fulfilled for a marriage to be legally valid (imtum matrimonium).² Otherwise, a cohabiting couple were not married. The conditions were three: legal capacity—conubium; age—puberty; and consent of the relevant parties. The nonfulfilment of any of these conditions meant that no legal marriage existed.

Capacity—conuhium

There was legal capacity if both parties were free and citizen. Slaves had no conubium, and although inscriptions from large slave households may apply the terminology of marriage to continuing relationships between members of the household, these had no legal status as marriages and no juridical effects.³ There was no conuhium between Roman citizens and foreigners.

This seems a simple doctrine. In practice, it was qualified in relation to numerous categories of persons. Latins and foreigners (peregrini) might be given conuhium by special grant. Gaius’ account (to be discussed more fully later) shows that the main concern is with the status of children born of the union.⁴ Potestas existed only over children born of a iustum matrimonium, or, in other words, only such children could be admitted to an existing familia. So, the lex Aelia Sentia (A.D. 4) gave informally manumitted slaves, known as Latini Juniani, the incentive to show themselves solid members of society, by providing that, through marriage and production of a child who survived to one year of age, they could obtain citizenship, and, for the father, potestas over the child, i.e., in effect, the father could become a paterfamilias (and, incidentally, ward off his patron’s claim on his estate).⁵

Much more numerous, however, were the categories of persons between whom, although of citizen status, there was no conubium. Marriage between patricians and plebeians, still invalid at the time of the Twelve Tables, was legalised soon after by the lex Canuleia of 445 B.C., although it is possible that, at least as late as 186 B.C., it was regarded as quite reasonable and justified for a tutor to refuse consent for a rich woman to marry with manus outside her own gens (‘clan-group’).6

Marriage between freeborn and freed was probably valid throughout the Republican period, although ill-regarded socially, at least in the higher ranks of society.⁷ Evidence on this is scanty. What is clear is that by Augustus’ legislation on marriage of 18 B.C. senators and, from the time of Marcus Aurelius at least, their male and female descendants for three generations were banned from marrying several categories of person: freedmen and freedwomen, actors and actresses and their children, prostitutes, procurers, procuresses and their ex-slaves, convicted adulterers and persons convicted in a public prosecution. With the exception of the freed, all these were regarded as probrosi —morally reprehensible. Actors and actresses were regarded as no better than prostitutes (and no doubt often were), and a similar assumption was made about barmaids and waitresses. A senatusconsultum from the early years of Tiberius forbade senators, equites and their families to work as actors or gladiators. That the marriage ban was concerned with upholding the dignity and status of the upper classes is clear from Paul’s commentary on Augustus’ lex Julia on adultery: a senator’s daughter, he says, who has been a prostitute or an actress or been condemned in a criminal court can marry a freedman, because she has forfeited her rank. Marriage of a senator with a respectable freedwoman could scarcely be condemned on moral grounds, but Augustus’ marriage legislation (lex Julia et Papid) elevated to a legal prohibition what had previously been expressed only in social disapproval.⁸

Freeborn men of humbler rank could and did marry freed women, sometimes their own.⁹ In a sample of 198 couples of whom one partner was freed, there were 174 freedwomen, of whom 30 were married to freeborn (or probably freeborn) men, and 13 of these men were their patrons. On the other hand, only 11 of the 159 freedmen were married to certainly or probably freeborn women. This may reflect a relatively greater social disapproval of the latter type of union.¹⁰ Attitudes seem to have hardened by the time of Septimius Severus at least. A constitution of that emperor banned a freedman from marrying not only his own patroness, but the widow or female descendant of his patron. It was made a punishable offence, with condemnation to the mines as penalty, though Ulpian expressed the opinion that it might as well be overlooked when the patroness herself was of such lowly status ‘that even marriage to a freedman would be honourable for her.’¹¹ It seems then that, while slaves of both sexes, at least in the towns, might reasonably aspire to freedom and marriage with their former co-slaves or other exslaves, slave women, except in the imperial household (Weaver 1972:175–6), had better prospects of social mobility. The reason for the sex differential may be to do with inheritance. A freeborn grandfather might not welcome the prospect of some of his patrimony passing to the children of a freed son-in-law; a freedwoman, however, could not affect the transmission of her father-in-law’s estate.

Some functions or offices created a ban on marriage. Tutors, as we have already seen, were banned from marrying their wards save in specified circumstances. By imperial mandate, provincial officials might not, during the course of their term of duty, marry a woman of the province, except in their native province. Both prohibitions were presumably intended to guard against the exercise of undue influence by the man. If they cohabited, this was not in itself penalised. Some later jurists held that the woman (but not the man) ought to be allowed to receive under her partner’s will; in other words, their relationship should not be regarded as stuprum.12

Soldiers, probably from the time of Augustus, at least, were forbidden marriage during their time of service, and marriages previously contracted were dissolved on entry into military service. One such case is probably illustrated in a papyrus from the second century A.D., a document witnessed by seven Roman citizens. Demetria, daughter of Lucius, acting through her tutor, declares that she has made some sort of arrangement (the text is unclear at this point) with Gaius Valerius Gemellus, serving with the ship Draco of the imperial fleet at Alexandria, ^‘to whom she was previously married and from which marriage she bore sons, Justus aged 14 and Gemellus aged ten, and to whom she specified a dowry.’ Valerius Gemellus acknowledges receipt of the dowry. This document is incomplete and has been variously interpreted. The most probable explanation is not that it represents an arrangement for return of dowry upon dissolution of the marriage, but rather that, the marriage having been annulled by the husband’s enlistment, he and Demetria are making sworn declarations that a marriage had existed, the purpose being to attest the legitimacy of the sons and protect their inheritance rights, and also to identify and secure the dowry property to Demetria in the event of Valerius’ death.¹³

Despite the ban on marriage, soldiers could and did contract unofficial liaisons during their period of service. Under the empire some attempts were made, possibly in the interests of maintaining recruitment, to mitigate the effects of the ban by allowing the men to enjoy the inheritance rights under Augustan laws of married men, and by protecting the inheritance of their illegitimate children.¹⁴ Their women’s interests, however, were less well catered for. If the soldier lived until discharge, he had conuhium and he and his ‘wife’ and children all had or were given citizenship, and a regular marriage could be contracted.¹⁵ If he died in service, she might be left high and dry. While he lived, she could, unlike a wife, receive valid gifts from him, and she had the dubious advantage of being unable to be prosecuted for adultery. On the other hand, she could not at his death or the end of their relationship for some other reason reclaim anything she might have given him as a dowry. In A.D. 117, the prefect Lupus in Egypt refused a woman’s claim to some money deposited with a soldier, now deceased, on the grounds that it could not constitute a dowry, since soldiers were not able to marry.¹⁶

Even if made a beneficiary under a soldier’s will, a woman might have difficulty in establishing her right to inherit. An enactment of Domitian had banned from receiving inheritances women of known immoral life. Hadrian had confirmed in a rescript that this applied to bequests in soldiers’ wills, and this was taken to apply also to ‘good-time girl’ camp-followers.¹⁷ A soldier’s relict might find her-self obliged to try to demonstrate the essential respectability of her character and of her association with the deceased. Demetria was probably trying to forestall such problems by preparing documentary evidence well in advance.

There was no conubium between persons related in certain degrees. Broadly speaking, marriage between ascendant and descendant was forbidden at all times, even if the relationship was contracted by adoption, and even if the adoption was subsequently cancelled by emancipation. In the early Republic, until about the end of the third century B.C., there was apparently no conubium between cognates up to the seventh degree, that is, second cousins. This rule (and probably also the restriction of ascendant-descendant relationships) derived from custom, not law, and it was first broken, we learn from a fragment of Livy, Book 20, by a patrician. Such exogamy doubtless made sense in a primitive stage of society, as security against the potential hostility of other territorially based clangroups. In classical Rome, however, there is by the second century B.C. an observable tendency to endogamy within or between certain aristocratic gentes, and by the first century B.C. marriage between first cousins was permitted.18

In the senatorial class, the political aspects of such marriage alliances are too well attested to need comment; and both there and at lower levels of society a degree of endogamy could be a strategy, along with the encouragement of marriage without manus, for trying to restrict the dispersal of family property. Few, however, are likely to have carried it so far as the egregious collection of people featured in Cicero’s pro Cluentio. To be fair, though, the tangle of intermarriages described in that speech between the families of the Aurii, the Cluentii and the Oppianici, are mainly engineered by the acquisitive pair Oppianicus and Sassia. They end up married to each other, having brought off also a match between his son by a previous marriage and her daughter by a previous marriage (her second) to a man who, apart from being her nephew by marriage, had been married to her daughter by her first marriage. Cicero is duly shocked, but does not say the matches were actually illegal in his day. The precedent of the emperor Claudius made it possible for a woman to be married to her paternal uncle; however, maternal uncles and aunts on either side were excluded by imperial constitutions, and in the course of the early empire the rules seem to have been explicitly formulated and laid down.¹⁹

In short, by the time of Gaius, a woman was banned, on grounds of relationship, from marrying any ascendant or descendant, a collateral within the third degree (except her paternal uncle) and certain in-laws. She could marry her sister’s former husband or her former husband’s brother, but not her father-in-law or son-in-law. She could not marry her stepfather, but could marry his son by a different mother. (Adoption was no bar to collaterals, once either party had been emancipated.) In contrast to classical Athens, where sons excluded daughters from inheriting, Roman daughters had equal inheritance rights with sons, and so there was no institution corresponding to the Athenian epiclerate.²⁰

Roman practice was not universal within the Roman world. Notoriously, in Egypt full brothers and sisters married. Found occasionally in Pharaonic royal families, more often in Ptolemaic, the practice is frequently attested among commoners in Roman Egypt. Though it was illegal for Roman citizens, some nevertheless followed local custom. The constitutio Antoniniana of A.D. 212, conferring citizenship on the free inhabitants of the empire, made such unions illegal for all the population of Egypt and created embarrassments and some attempts at concealment.²¹

Elsewhere in the Roman empire, also, there seems to have ensued upon the wholesale acquisition of Roman citizenship a lengthy period in which people, possibly through genuine ignorance, persisted in habits which had been legal under their own systems of law. Eventually, Diocletian and Maximian in A.D. 295 issued a ferocious-sounding edict²² against the behaviour of those who ‘rushed into illicit unions in the promiscuous manner of farm animals or wild beasts, driven by execrable lust, with no regard for decency or righteousness’. Their conduct, arising, say the emperors, from inexperience or ignorance of the law, deserves the most severe punishment. They ought to think themselves lucky to get away with their lives. Anyone breaking the rules after December 30, 295, will be punished with appropriate severity (the decree is dated May 1, 295), and no one need expect clemency. Nevertheless, despite all this huffing and puffing, what the edict amounts to is a complete amnesty for illicit unions to date, though it is pointed out that the children of these unions are not legitimate. For the future, there is no mention of any additional penalty.

A union outside the permitted degrees was ‘incestuous’ (incestum). The word, meaning also ‘unchaste’ is used of sexual relations with a Vestal Virgin, and also of ‘incest’ in the narrower sense, as in English, i.e., sexual relations between close relatives. Since there was no conubium within the specified degrees, these unions would come under the penalties for extramarital sexual relations which were established by Augustus’ law on adultery, the lex Julia de adulteriis coercendis (18 B.C.), which created a range of sexual offences punishable by the state. Despite its title, the law was concerned with stuprum in general, of which adultery and incestum were types.23

All forms of union outside marriage and concubinage were treated by the lex Julia as delicts. The usual punishment was banishment and, where both adultery and incestum were involved, deportation to an island.²⁴ Jurists, however, were disposed at times to regard the woman’s fault as less grave than the man’s. From the midsecond century A.D. imperial jurisdiction extra ordinem tended to the remission of penalty for the woman, and even for both, so long as the liaison was given up, in cases which deserved special consideration. Marcus Aurelius and Verus gave a reply to a certain Flavia Tertulla:

It is clear from the tenor of this reply that Tertulla is being given a special concession, and that this decision is not meant to constitute a precedent. We do not know where she lived. Presumably, the uncle was on her mother’s side. Whether he is still living is not clear, nor why Tertulla should be anxious about the children’s right to inherit.²⁵

Incidentally, under the Augustan law sexual relations between unmarried couples, whether they were betrothed or not, were stuprum and therefore constituted an offence. Cohabitation without evidence of sexual relations was apparently not an offence.²⁶ English society has grown accustomed in recent years to acceptance of premarital sex and of the practice of couples living together for some time before the marriage ceremony. In Roman society, as we shall see, marriage dated not from the performance of a specific formal ceremony but from the wife’s entry to the husband’s home. Luckily, in the eyes of the law, children could be born anything from six to ten months after conception,²⁷ a fact which gave time for shotgun weddings and avoidance of the consequences of a conviction for stuprum, should any ill-wisher choose to prosecute.

Marriageable Age

A legal marriage existed only if both partners had reached puberty. For boys, it was still disputed in Gaius’ time whether this should be determined by examination of physical development or simply fixed at the age of 14.28 Even proponents of the former view accepted that age should be the criterion in the case of a spado (one naturally impotent). This was important, since for a boy entry into manhood meant release from tutela and the assumption of political and legal rights and responsibilities, from which impotence alone would not be held to disqualify him. Impotence was not a disqualification for marriage either, though castration was.²⁹

For girls, puberty was deemed in law, from at least the time of Augustus, to have been reached at the age of twelve, and a girl was therefore marriageable at that age.³⁰ The actual onset of menstruation probably occurred later for most girls. Medical opinions placed it as occurring in the fourteenth year, and modern research concurs.³¹ Girls, therefore, could legally be married before they had in fact reached puberty. Various questions arise. Were some girls in fact married as young as twelve years of age? Were such marriages in fact consummated fairly early on, even before the girl reached puberty?³² Did some girls cohabit before the age of twelve?

The evidence, literary, epigraphic and legal, seems to point towards an affirmative answer to all three questions, though it does not enable us to state with any degree of confidence what proportion of relationships this represents.

Literary sources give several examples of girls in upper-class circles who were married young. Cicero’s daughter Tullia was relatively mature—engaged at twelve, married at 16 and a widow at 22. The emperor Claudius’ daughter Octavia was married at 13, and Agrippina, Nero’s mother, at twelve. Several other women of the imperial house married at between 13 and 15 years of age.³³

Some funerary inscriptions enable a calculation of age at marriage, e.g., by giving age at death and length of marriage. Such evidence is biased in several ways. There is a class bias; only those who could afford it would commemorate their dear ones. There is likely also to be an age bias; women who predeceased their husbands were perhaps more likely to be commemorated by them than widows were by their relatives. Census declarations from Egypt also have some bias. Nevertheless, both types of record show a substantial proportion of early marriages.³⁴ Out of 171 inscriptions in Harkness (1896), 67 recorded women married before the age of 15 and 127 before the age of 19. Some were apparently ‘married’ even before the age of twelve; in the sample in Hopkins (1965b), eight per cent were married at ten or eleven. Of 155 married women in the Egyptian census declarations, 51 were married before the age of 20, and 16 before the age of 15; to these should probably be added others who had not had children before the age of 20. Hajnal points out that these figures show a different marriage-pattern from that of postmediaeval Europe, which was characterised typically by high age at marriage and a high proportion who never married.³⁵

Legal evidence also indicates that marriage at twelve was not unknown. Several texts are concerned with the juridical status of a relationship where a girl less than twelve years old was already cohabiting with a man. Pomponius says: ‘A girl wed (nuptam) before the age of twelve will become a lawful wife when she has attained the age of twelve while still cohabiting’. Ulpian, citing Labeo, and Papinian both speak in this context of the girl being deducta (led, as at marriage) to the man’s home. Ulpian considers the question of whether, when someone takes his betrothed to wife when this is not allowed by law, gifts between them are valid, as betrothal gifts, and not gifts in marriage. ‘Julian’, he says, ‘deals with this question in the case where a girl under twelve has been deducta to the home of her quasi-husband, when under age; he says she is a fiancée (sponsa), even if not a wife.’ Girls under twelve would not have free disposal of their persons, and so the reasons for these early matches are likely to be those of the menfolk. Some can be guessed at: politics and family alliances in the upper social reaches, help with the domestic economy, and a dowry, in the lower. Julian thought that a father should be assumed to be acting from excess of affection rather than from any fraudulent motive.36

Clearly, some girls were living with men even before the age of twelve, and so, a fortiori, at the age of twelve. Whether such relationships were consummated is, in the nature of things, much harder to ascertain, and there has been some emotional resistance in modern times to believing that this was so.³⁷

Twelve was up to two years before the average age of menarche. Nevertheless, Roman lawyers use both calendar age and the language of physical maturity (viripotens: ‘capable of receiving a man’) to define juridical capacity for marriage.³⁸ Literary evidence shows a similar tenor. Plutarch and Soranus, both Greeks, express some concern.³⁹ According to Plutarch, Lycurgus, the (unhistorical) fashioner of the Spartan way of life, postponed marriage in that society until girls should be physically ready, and so emotionally disposed to love their husbands and physically strong enough to endure the strain of conception and childbearing. The Romans, on the other hand, wanted to ensure that their brides would be pure and undefiled in body and mind when their husbands took them; and he conjures up horrid images by suggesting that the Greek system would produce ‘a kindly love, instead of the timorous hate that follows unnatural compulsion’.

However, Soranus, a medical man, recognised that some girls, if not properly brought up, felt sexual desire early. He argued that defloration ought not to occur before menarche; the implication is that it did frequently enough to be taken notice of, and that girls were often married and sexually active from the start of puberty.

This would have consequences for their health. Even allowing for the phenomenon of subfertility in the first year or so after menarche, girls could and would be exposed to the possibility of pregnancy from an early age, before their bodies had reached full growth and maturity. Abortion carried its own risks. Contraception was used, but amulets, sympathetic magic and potions crowd the relatively few prescriptions in the texts for pessaries, or similar preparations for vaginal use, which might have been effective, and the use of the ‘safe period’ was not understood.⁴⁰ One might expect miscarriages to be frequent. A few instances, of women in high society, are mentioned in the literary sources. The ‘technical literature’ (e.g., the elder Pliny, Celsus, and Soranus) has quite a lot of advice on bringing away the placenta and treating various complications attendant on miscarriage, prolapse and other female disorders. One would expect a high rate of death in childbirth or from its consequences. Epigraphic evidence seems to confirm this (though with the reservations already mentioned), showing a ‘bulge’ in mortality of women between the ages of 15 and 29; however, the average life-span for both men and women was under 30, and one recent study would put it as low as 21.11 years.⁴¹ Early sexual intercourse carried its own risk, apart from pregnancy; there is recent evidence to suggest that it increases the risk of cervical cancer.42

Garcia Garrido (1957:85), while accepting the evidence for cohabitation before the age of twelve, suggests that a manage blanc may have been maintained until the age of twelve was reached. He bases his conclusion partly on the jurists’ use of viripotens, apparently interchangeably with the age of twelve, as a requirement for the existence of legal marriage, and partly on the law relating to stuprum, which was defined as all sexual relations with free unmarried women.⁴³ No marriage could exist until the girl was twelve; any premarital sexual relations with her would be unlawful and probably constitute a delict.

The law may prohibit; but that of itself does not guarantee abstention, especially in domestic privacy. The question must remain open.

Consent to Marriage

The third requirement for a valid marriage was the consent of the relevant parties. In classical law, these were defined as the marriage partners, if they were sui iuris, or their parents, if they were suject to potestas (so Ulpian; Paul says the marrying couple and their parents), though Ulpian thought that the daughter’s consent could be withheld only if the father had selected someone morally undesirable.⁴⁴

The father’s consent was apparently necessary in law at ail times. In the Republic, he could prevent a marriage. When Pompey, recently widowed, proposed that he would marry a daughter (or, in another version, niece) of Cato Minor, and his son another, the women of Cato’s household were keen, but Cato refused the match and, being on the spot in Rome, was able to enforce his wishes.⁴⁵

On the other hand, Cicero’s wife and his daughter Tullia between them arranged and carried through Tullia’s marriage to Dolabella while Cicero, in Cilicia, was unaware of the fact. Caelius had informed Cicero from Rome early in the year (50 B.C.) that Dolabella’s previous marriage had broken up. However, since Cicero and Dolabella were about to be on opposite sides in a forthcoming trial, Caelius advised Cicero not to commit himself openly for the moment. Meanwhile, Cicero was approached in Cilicia by an eligible young man, Tiberius Nero, and sent word to Terentia and Tullia about him. The womenfolk in the meantime had gone ahead and concluded the betrothal with Dolabella. Cicero could have used his paternal authority to stop the match; but he chose to acquiesce, and wrote philosophically to Atticus: T hope this will turn out for the better; certainly the women are delighted with the young man.‘⁴⁶

Whatever the law said, children in real life were able to take the initiative as Tullia did in choosing a marriage partner. From time to time they even presented their parents with a fait accompli. Paul gives it as his opinion that The marriages of persons in the father’s potestas cannot legally be contracted without his consent, but once they are contracted they should not be dissolved. The public good should take priority over private convenience.’ By the latter statement he appears to mean that the stability of a marriage is to be preferred to a father’s wishes, a viewpoint similar to that of Marcus Aurelius on a father’s interference in a bene concordant matrimonium.⁴⁷

Augustus passed a law allowing consuls and provincial magistrates to compel a father to consent to the marriage of a child, if his opposition was judged to be unjustified (iniuria)48 This degree of legal interference with the patria potestas was possible in a period when/razAiws-marriage had become uncommon and the daughter, as always the son, remained in her father’s potestas after marriage. It would surely have been unthinkable that a father should be com-pelled to give up potestas over his daughter for a manus-marriage.

It seems likely that in strict law, at all times, the pater could compel his children to marry, though the jurists felt that he ought not to do so, since they insist upon the consent of the couple themselves. Possibly a daughter was easier to compel than a son.⁴⁹ However, one must not be led astray into accepting the law’s version of society, where the pater compels, as a picture of what usually happened. We ought to do Roman fathers, even in the heyday of wflrtws-marriage, the justice of assuming that most of them had some feelings of affection for their sons and daughters and were not actuated only by financial considerations in arranging their marriages, to the extent of regularly overriding any personal feelings their children might have.

The arranged marriage should not be regarded merely as a bogey, in some sense a violation of personal liberties. It was a sensible strategy, still used in some societies (but becoming less appropriate as other economic and cultural influences pervade them) to maintain the economic and social security and welfare of the next generation. Neither the young Roman girl in a wealthy family, nor indeed her brother, is likely to have been in a position, at least for the first marriage, to have much acquaintance with young persons of the opposite sex outside the family, other than those included in their parents’ social circle. That in itself helped to ensure that anyone on whom their fancy was likely to fall would be socially acceptable, though there could perhaps be (although less likely with the very young) the occasional threat of a mesalliance, with the equivalent of a chorus-girl or a servant, such as appears in literary and legal sources. For the most part, adult Romans on their second or subsequent marriages probably gravitated to persons of their own status. The poorer child, in an urban setting, may have had a wider experience before marriage of society outside the household; but, again, we are not really justified in imagining a plethora of thwarted juvenile romances.

It is salutary to remember that Dolabella was the choice of Tullia herself and her mother, and he turned out a thoroughly unsatisfactory husband. And there was always divorce, and that much more easily than in modern Britain; but that must be dealt with later.

The glimpses that we do have of Roman life (albeit mainly of the upper classes) show the women of the family taking a lively, and sometimes even a directing, interest in the arranging of their children’s marriages. Cato and Cicero had their women to contend with. The story of the betrothal of the elder Tiberius Gracchus has some fictional qualities; still, it was repeated by a Roman writer in the time of Augustus, and has therefore some evidential value for what might be considered credible wifely behaviour then. In 187 B.C., says Livy, members of the Senate, dining on the Capitol, begged Scipio to betroth his daughter to Gracchus. He did so publicly, there and then (in the daughter’s absence, be it noted). On his return home he told his wife, who, ‘annoyed as a woman would be that he had not consulted her’, said that the girl’s mother ought to have been consulted, even if the proposed husband was Tiberius Gracchus. Scipio rejoiced (as well he might) that their views coincided.⁵⁰

A much more factual impression of the workings of arranged marriages can be gleaned from the letters of the younger Pliny; from these, it can be gathered what qualities he and his social equals found desirable in a husband. Good family, good character and scholarship are desirable in Pliny’s eyes; official position is a recommendation too, and he helps a friend with his daughter’s dowry so that she can marry a public man. Ample means are important, since posterity must be provided for. Pliny comments on the looks of one prospective groom and the charm of another. The niece of Pliny’s friend Junius Mauricus is sui iuris, her father being dead, but is apparently very young (she is a virgin), and her uncle’s greater experience of the world is being used to find her a husband. He is probably her tutor.51

The Formal Procedures of Marriage

Marriages were not celebrated on certain days and at certain times of the year. The ban was not legal, but rather religious and customary. The unpopularity of the month of May and the early part of June probably originally lay as much in the fact that it was a busy time of year for farming, as in any other reason. The three days a year when the mundus or door to Hades was opened at Rome and ghosts walked were avoided, and the eight days of the festival of the dead in February. It was not good to have a wedding on the fixed days of each month (Kalends, Nones and Ides) because the days following were ‘black’ days and therefore unlucky for starting anything new, according to Varro. Macrobius elaborates. First marriages should not be celebrated on Kalends and Ides, because they involved ‘an onslaught on virginity’. But, he says, Varro reports that a famous expert in pontifical law, Verrius Flaccus, was in the habit of saying that the reason was that it was permissible to clear out old ditches on those days but not to make new ones; therefore they were more suitable for marrying widows than virgins. One is inclined to suspect Varro (or Verrius) of trying to make a joke.⁵²

Usually, as nowadays, a marriage was accompanied with a celebration of some sort, a wedding, the culmination and central part of which was the torchlit procession, with musicians and ribald jesting, that escorted the bride to her married home. That did not of itself constitute a valid marriage, any more than the cake-cutting, facetious speeches and pelting with confetti at a modern wedding.⁵³ However, the Romans seem to have attached importance to having such celebrations, and their features are often referred to in literature,⁵⁴ and to be able to adduce witnesses to such a celebration would create a strong presumption that there had been marital intent.

Although in the eyes of the law the existence of a marriage was not dependent upon the performance of any specific ceremony, there were certain procedures and arrangements usually attendant upon a marriage. In particular, the intention to marry might be signalled by a formal betrothal (sponsalid).

Betrothal⁵⁵

In the early Republic, when manus-marriage was still common, the participating parties were the groom or his pater on one side and the bride’s pater or tutor on the other. The parties gave promises (sponsd), which amounted to making a verbal contract, stipulatio. Whether stipulatio was made by both sides, or only on the bride’s side, and whether it was actionable are disputed questions. In Latium, betrothal seems to have involved double actionable stipulations until the absorption of the Latins into the Roman citizen body. In Roman law, also, there was probaby originally a stipulatio on both sides, which was actionable. The bridegroom’s side promised to take the girl in marriage (whether or not bride-price was also involved in early Rome need not concern us); the bride’s side promised to deliver her into the manus of the bridegroom’s family, and perhaps also stipulated a dowry. By the first century B.C. stipulatio had ceased to be used in betrothal, and arrangements for dowry were made separately. The plays of Plautus include several scenes concerning betrothal and use the vocabulary of stipulation. Whether it is fair to conclude, as Watson (1967:14–15) does, that, because the comic writer in one place omits half the formula, this represents current usage and the promises were no longer actionable by the beginning of the second century B.C., is doubtful, and presses the evidence too hard.56

Marriage without manus was freely terminable by the wife or her pater (as marriage with or without manus was on the husband’s side), and as this type of marriage became more common, there would be less point in maintaining a binding contract for entry into marriage. Betrothal developed into a matter of simple consent. The elements of binding contract which sometimes accompanied it (marriage ‘contracts’, penalty clauses, etc.) were not strictly part of the betrothal itself.

In betrothal by simple consent, there was no action for breach of promise. Betrothals could be, and were, broken off without penalty. The practice grew up of making a stipulation at the time of betrothal that a penalty should be paid if the marriage did not take place. Paul took the view that marriage ought not to be subject to such constraint.⁵⁷

There was no legal minimum age for betrothal, though there was for marriage. Augustus (then Octavian) betrothed his daughter Julia to a son of Mark Antony when she was about two years old. Later, as part of his legislation to encourage marriage, betrothed men were exempted from the penalties attaching to caelibes (bachelors). Because many were abusing the privilege by betrothing themselves to infants, he ordered that no betrothal should be valid unless the man married within two years. This meant, in practice, that, although betrothals might be made with younger girls, they would not earn the men exemption until the girls were ten years old. Modestinus, two hundred years later, says: ‘In making betrothals, there is no age specified for the contracting parties, as there is for marriage. Therefore betrothals may be made from early childhood.’ The passage continues: ‘so long as both parties understand what is being done, that is, if they are not less than seven years old.’ This latter section was probably added by the compilers of Justinian’s Digest and does not represent classical practice.⁵⁸

The pater or tutor would act for children in potestate or under age. A man sui iuris could act for himself; so, apparently, could a woman, unless contracting a marriage with manus.

Although betrothal by informal agreement could not be legally enforced, it did have certain consequences. A person who formed a second engagement, or married someone else, without breaking off the first engagement, was liable to praetorian infamia. The penalties incurred by being declared infamis were mainly certain disabilities in litigation. Women were subject to most of these disabilities anyway, because of their sex, and so the main effect was probably to prevent them from appointing cognitores (representatives) in lawsuits.59

Betrothal also brought the parent or child of the other party within the prohibited degrees for marriage.⁶⁰

Severus and Caracalla issued a rescript allowing a man to prosecute his unfaithful fiancée, not just for the general offence of stuprum, but specifically for adultery, by the right of third parties (since he was not actually a husband).⁶¹ He himself was not required to be faithful, however. So long as he abstained from married women and unmarried citizen women (other than prostitutes, actresses and the like), the law was not interested.

Betrothed persons were treated as near relatives for the purposes of exemption from certain limitations on gifts and legacies under the lex Cincia (204 B.C.) and the lex Furia Testamentaria. The purpose of these laws was to prevent excessive depletion of the property of familia by generosity to outsiders. With the development of free marriage, husband and wife were regarded as ‘outsiders’ in customary law, as far as gifts were concerned, but engaged couples apparently remained exempt from the Cincian law. Legal evidence on such gifts (donationes ante nuptias) in the classical period is scanty, but it looks as though in some cases the gifts were in effect used to constitute part of the dowry, and this may be the reason for the continuing exemption. In post-classical law, such gifts were brought under a hard and fast set of rules for marital and financial settlements.⁶²

A fiancé was regarded as part of the family, in that the Augustan law providing that close relatives and in-laws could not be compelled to give testimony against each other was held to apply to him and his future father-in-law.⁶³ On the other hand, if he murdered or was murdered by the bride’s father or brother or sister, this counted as parricide; the same applied if she treated his family in this way. Not all families are happy ones. (Presumably, in those circumstances, the engagement was usually broken off.)⁶⁴

Proofs of Marriage

No specific ceremony was legally required for the creation of a marriage. Jurists, in attempting to define marriage, tend to stress the mutual agreement of the parties, and the fact that they live together. ‘Marriage’, says Modestinus, ‘is the coniunctio, the joining together of a man and woman and the sharing of their entire life, the joint participation in rights human and divine.’⁶⁵

Living together was not in itself enough to distinguish marriage from concubinage. There must be affectus maritalis, that is, the couple must regard each other as man and wife and behave accordingly.⁶⁶ A mental condition is something whose existence is not easy to prove, especially if either party had died or refused to acknowledge the marriage. One other circumstance which must occur was that the wife should be in domum deducta, that is, she should take up residence in the husband’s home. Jurists considered that the inception of a marriage could be held to date from that point. A woman, therefore, could not marry in absence or by proxy, although a man could. Her presence was essential, so that she could formally enter the marital home.⁶⁷ In itself, though, cohabitation was not enough to constitute marriage.

In practice, there were usually various other attendant circumstances, of no legal significance in themselves, but which could be pointed to as presumptive proof of existence of a marriage. A rescript survives, issued by the emperor Probus (A.D. 276–282) to a man named Fortunatus: