Ovid versus the Lawyers
One of my key criteria in trying to distinguish between barbarism and civilisation is to ask the question: who decides who you are to marry? You? Or your mother? When applied to the Romans, there are two very different answers. One answer is to rely on the poet Ovid, who wrote The Art of Love, an instruction manual in two books to young men as to how to woo a young woman, and then a third book to the young women, telling them how to catch their man. Nowhere in this poem is there the least hint that the choice should be made by parents: it is assumed that the young make their own choice.
However the conventional view of marriage is very different. The ‘official’ view is that choice was made, not by the mother, but by the father who controlled the lives of the whole family. This is very different, and it seems that those who read Ovid have never read any of the books on Roman law or Roman marriage, and those who study Roman law and pontificate on Roman Marriage have never read any Ovid. It is time to take a look at the conventional view of Roman marriage.
The study of Roman marriage is difficult, because it is biased in two directions. At the one end there is the problem that the Romans believed inherently in the Good Old Days, and the good old-fashioned morality, that what was done in the past was always right and what is being done today is morally wrong. We need to be aware of this bias. And at the other younger end there is the problem of Christianity. By the time that the Digest of Roman law was written under Justinian in the sixth century A.D., Rome had already been a Christian for two centuries or more, and Christianity had a very different view of marriage, and we need to know how far this is reflected in the laws that are recorded.
Traditional Roman marriage
When Rome was founded, traditionally by Romulus in 753 BC, it was, by my definition, a very barbarian society. Only it wasn’t the tribe that predominated, but the father, assisted by a family Council. The father had complete domination over his family – and the term ‘familia’ means more than just family, it included also the slaves – he could even put members of the family to death, and still in the second century we find Hadrian remonstrating against a father who killed his son for some misdemeanour: it was known as the patria potestas, though by the second century BC it had been much diminished in force. It was called his ‘manus’ his hand, and the effect of marriage was to transfer the wife from the manus of her father to the manus of her husband, or if her husband’s father was still alive, to her father in law.
The full scale Roman wedding was known as the Confarratio which was only allowed to patricians where there was an elaborate ceremony, where the high point was the eating by bride and groom of bread made from emmer wheat. There had to be ten witnesses to the ceremony and the only advantage was that it gave eligibility to the higher ranks of the priesthood. It fell out of fashion quite early on, and by the first century there was something of a crisis in the higher ranks of the priesthood, because no one had gone through the confarratio ceremony.
There were however two lesser forms of manus marriages: there was the coemptio where only five witnesses were needed. But the usual form was called ‘usus’ or marriage by use, where if you had lived together for more than a year you were legally married. However according to the 12 Tables, the original law code promulgated in 449 BC , usus could be avoided if a woman spent more than three nights away from her husband’s home in any one year.
However the big difference in Roman marriage was the difference between marriage cum manu or marriage with the hand, and marriage sin manu which is marriage without the hand. In a marriage with the hand the woman was transferred from being her father’s property to being her husband’s property. But in marriage without the hand the woman remained her father’s property. This was generally considered to be preferable because her father was likely to die before her husband, and when her father died she became a free woman and was able to own her own property – something that married women were not able to do in England until the Married Woman’s Property Act of 1882. This change from marriage with the hand to marriage without the hand surely marks the change in my definition from barbarism to civilisation, though unfortunately so gradual that it cannot be tracked. Most authors seem to think that the main change took place in the second century BC, when in the aftermath of the defeated Hannibal, Rome became a proper money economy and expanded enormously, and the social basis of the tribal society changed too.
The heart of a marriage: Dowry and divorce
Two matters dominated marriage and provide most of our evidence for what was really going on – the giving of the dowry and divorce. In all marriages, at least in the upper and middle classes, the dowry was essential and it was a substantial matter. There was no law of primogeniture in Rome and on the father’s death, property was divided between all the offspring. Thus the dowry was meant to be the portion of the family estate which the girl would expect to receive when the father died. In practice it was less than that, but was nevertheless normally substantial.
However if the wife died, or divorced her husband the dowry had to be given back and this is what proved to be controversial and the cause of many law cases. This is the one case when a date can be put to a change in the marriage process, for in 230 BC a law was passed the actio rei uxoriae or a legal action for the recovery of dowries. This could cause a great upset. The classic case was that of Q. Aelius Tubero an old fashioned but very upright member of minor aristocracy, whose wife died, and he had to give her dowry back, and this involved selling part of the ancestral estate – something that had never been done before: clearly we are seeing here the money economy beginning to affect even the old fashioned aristocracy.
Another similar case was that of Apuleius, whose bride Pudentilla had an estate worth £6 million and who handed over £300,000 as her dowry (I am taking a sesterce as being the equivalent of a pound). But when she died, her dowry had to be repaid, again (apparently) involving considerable hardship.
Divorce was surprisingly easy in the Roman world. The Romans had fewer hang-ups about sex than we do. Marriage was never considered to be a religious ceremony – in practice it was more a matter of having a great bean feast and carrying or leading your wife over the threshold. And there was no concept of living in sin in the classical world. It may indeed have been inadvisable and perhaps immoral to have sex with another woman, but it was not sinful. After all the gods, at least in the Greek Pantheon were doing it all the time, so they could not really object if human beings did it too. (One indeed suspects that it is the Christians – and Muslims – who are out of step in their treatment of sex).
The impression often given of marriage in the first century BC is of a cold and loveless affair where fathers married off their daughters to form political alliances and had no hesitation in ordering their daughters to divorce one husband and marry another simply to pursue their political allegiances. This impression is perhaps misleading as inevitably we hear mostly of the activities of the upper class politicians, who were playing an unfeeling and artificial game. There is plenty of evidence however for the existence of real love and affection in marriage. Cicero is a prime example in his affection for his wife Terentia, to whom he wrote many affectionate letters, and who he relied upon to manage many of his financial affairs. Ovid too is often quoted for the great affection that he showed for his wife who he left behind in Rome when he was banished to the Black Sea, and to whom he declared his affection in the poems Tristia which he wrote from the Black Sea imploring the Emperor to recall him. Ironically this is the only mention of Ovid that appears in most modern books about the Roman family and Roman marriage.
Augustus the best example?
Ironically, Augustus is a good example of this. In his rise to power, he used marriage as a political tool, as ruthlessly as any of his rivals. His first wife was Claudia, the step-daughter of Mark Antony, but that alliance did not last long, and he returned her intact. He then wanted to curry favour with Pompey, so he married Scribonia, who was part of the Pompeian faction. However once he had established his position, he allowed himself the luxury of actually falling in love, with Livia. There was the little minor matter that both were already married, but he ordered Livia’s husband (by whom she had already had a son), to divorce her, and he proceeded to divorce Scibonia, even though she was already pregnant.
However, Livia proved to be the love of his life and he remained married to her even though she failed to do what she was meant to do, that is give him sons. Augustus therefore had to make the best of a bad job. His second wife, who he divorced when pregnant, produced a daughter who turned out to be Augustus’ only child. He therefore looked after her with great affection, though one wonders what she thought about Daddy having divorced Mummy before she was born. However she proved to be brilliant but promiscuous, but he married her off to his best friend Agrippa, – the brilliant general who won all his wars for him. True, he was Augustus’ age, that is 25 years older than her, but the marriage was at least fruitful, and produced five children. Two of them were boys, Gaius and Lucius, and appeared to be very bright lads, so he adopted them and groomed them to be his successors; but both of them died in their twenties, one after the other (One of their daughters, Agrippina, was the mother of the emperor, Caligula and Grandmother to the emperor Nero). Augustus was desperate for an heir, but Livia, whom he really did seem to love dearly, was unfruitful, so he decided to adopt her son by her first husband, Tiberius. He didn’t really like Tiberius, who perhaps not unsurprisingly was emotionally cold, but he was at least a competent general, and it was Tiberius who eventually succeeded him as the supreme ruler, thereby ensuring that Rome turned from being a failing democracy into being a successful Empire.
But despite all this – and the numerous girlfriends he had when young, once he established himself as sole ruler, Augustus turned over a new leaf, became prim and proper, and made major changes to marriage in the Roman world.
In 18 BC he passed a law outlawing adultery. Previously adultery had been a private matter to be dealt with by the father as head of the family, using his patria potestas. Hence forward it became a public crime to be dealt with by the state. Not that it seemed to have made much difference: we should remember that the great age of Roman success came in the middle of the first century AD in the wicked age of Nero, when under the leadership of Petronius, the ‘Arbiter of Elegance’, lasciviousness flourished. But we should remember that immoral Rome had 400 years of success ahead of it. It was only when Rome became sexually abstemious under the Christians that it rapidly collapsed. Sex is good for you.
But Augustus was faced with another problem, that the true born Romans were not producing enough children and there were too many unproductive marriages. He set about improving this in two ways: his first law was recognised marriage between the free born and the freed man. (A freedman was a sort of halfway house between a slave and a full free citizen). Rome was to a considerable extent a slave society and one of the scandals of a slave society was that a man could demand to have sex with his slaves. And the slave had no option but to do what he was told. (It also worked the other way – a free woman could demand that a male slave should have sex with her, and he had to do what he was told). Not infrequently however the man fell in love with the slave concubine and then freed her and married her. What Augustus did was to legitimise such marriages, so that the children of such marriages could be full blown Roman citizens.
The second big reform was the ius trium liberorum or the law of three children which said that if a woman had three children, or four if she was a freed woman, then she could be free of her husband’s manus. She could buy and sell property (including slaves) on her own account, and perhaps more importantly she could inherit property. There were benefits for the man too – though how far it actually succeeded in producing more children is uncertain. But clearly its benefits were substantial because the law was soon abused. Ways were found round it and the ius trium liberorum became a sort of minor reward to be given by emperors and high officials to their followers as a badge of merit, even though they did not actually have three children.
How far then can the picture of Roman marriage given in the conventional text books be reconciled with Ovid’s Art of Love? I suspect that the situation was not unlike that of today where a high level of divorce goes with a high degree of affection and love within marriage. There was a traditional Roman story (Plutarch Aem P 4) of a Roman aristocrat who was divorcing his wife and a friend asked him why he was divorcing his wife when she was beautiful, discreet and fruitful: “Well”, he said, “it is like an old shoe, you cannot tell where a shoe rubs unless you actually wear it”. If the woman you marry turns out to be incompatible, then get rid of her. If you remain married it is because you are really compatible: the shoe fits. Of course it is preferable to try out the shoe before marriage to make certain it is not going to rub you, and this is surely what Ovid is recommending in his Art of Love.
It does seem that in practical terms marriage did change in Roman society and that this change took place at the same time that Rome was becoming a market economy and was part of the social changes that accompanied the economic changes. But just as the change into becoming a market economy was so gradual as to become almost invisible, so the change between a manus marriage where the woman was the property of her husband changed into the concept of the marriage without manus, where in effect the woman became largely free from the power of her husband at first in practice, but later in theory too with the law of three children. I suspect that the picture painted by Ovid, though no doubt exaggerated, was nevertheless firmly based in reality. Most marriages were based on a process of courtship, of selection between the boy and the girl, the man and the woman, the husband and the wife, and that getting parental consent came second and that as a result the divorce was relatively common. True love was even more common as was indeed the norm. The traditional accounts of Roman marriage are interesting, but I do wish that those study Roman marriage will also study Ovid’s Art of Love!
But enough of Sex and marriage: it is time to get down to history. When did Rome begin to acquire these fundamentally different attitudes towards life?
Or, on to Augustus