The first family, 18–2

Augustus concerned himself a great deal with moral and social issues. In 18, he had two laws passed, the lex Julia de maritandis ordinibus (‘Julian law on marriage categories’) and the lex Julia de adulteriis coercendis (‘Julian law on restricting adultery’). He used his tribunician power to bring these measures before the Plebeian Assembly (Res Gestae 6.2). The first was to encourage marriage and the production of children. All

male citizens between twenty-five and sixty, and all women of citizen families between twenty and fifty, were expected to marry; there were penalties for those who did not, and for those who married but did not have children. The most severe penalties were the strict limits on their rights of inheritance: unmarried and childless men and women could not inherit from anyone other than their close relatives; there were even restrictions on the amount that husbands and wives could leave to each other in their wills, which varied according to the number of children that they had. This could lead to serious economic and social disadvantage. Since membership of the senatorial and equestrian classes was dependent on the amount of money and property owned, unmarried and childless members of the upper classes might well lose their social status through these restrictions on inheritance. This did not go down well; it was particularly cruel to those couples who found that they could not have children, who might have commented, in private, that their misfortune was shared by the Emperor and his wife. Suetonius (Augustus 34) records ‘an open revolt against its provisions’, and a demonstration by the equites at a public entertainment, which must date to late in the reign since Suetonius mentions that Augustus showed off some of his great-grandchildren (the oldest of whom was born in AD 6) to demonstrate the joys of large families. In later years, therefore, Augustus modified the measures, through the

lex Papia Poppaea of AD 9. Papius and Poppaeus were the suffect consuls of the year; the fact that this time Augustus did not put his own name to the law may be a further indication of the unpopularity of such legislation.

Dio (56.10) comments that Papius and Poppaeus were both bachelors with no children. Under the new law, those who were unmarried but childless were allowed to receive one half of inheritances. In some cases penalties were replaced by rewards for those who were engaged or married, and those who had children. Those who had at least three children, and were therefore expanding their families, since they were doing one better than merely ‘replacing’ themselves, got the greatest rewards. However, the somewhat gentler approach did not mean that Augustus was becoming a soft touch: as men were avoiding penalties and gaining privileges by becoming engaged to infant girls, it was made compulsory for an engagement to result in marriage within two years. (Dio 54.16 reports this under the year 18, but it looks like the closing of a loophole, and so seems more likely to be part of the new law than the old; in fact Dio seems to contradict his own statement when in a speech he represents Augustus as delivering early in AD 9, he mentions that men were ‘cheating’ by getting engaged to young girls.) The second law of 18, for the first time in Roman history, made adultery

a crime, at least for married women and their lovers (unfaithful husbands do not seem to have been included). After divorcing his wife for adultery, a man could prosecute his wife and her lover, with penalties including banishment to an island (different islands for the wife and the lover), the loss of much of their property and restrictions on their citizen rights. Women who had been found guilty of adultery were probably not allowed afterwards to marry free men. A husband whose wife had committed adultery but who did not divorce her could be prosecuted as a pimp. Rumours of Augustus’ unfaithfulness with Maecenas’ wife Terentia have

already been mentioned, and Suetonius (Augustus 69-71) repeats other stories about Augustus’ supposed repeated unfaithfulness to Livia, although it is hard to tell whether or not these were invented by his enemies. However, the second Julian law in particular has often been used as evidence that Augustus was puritanical about sex in his public attitudes. That, however, is not the only explanation for these laws. It is important to take the two laws of 18 together: there is, overall, an emphasis on children and a concern not only with sex but also with class. It is worth noting that, given the penalties for those who did not have children, the legislation actually encouraged divorce and remarriage when couples could not have children together. Also, although univirae, women who had only ever had one husband, were accorded great respect in Roman society (see, for example, the boast of being a univira in a woman’s funeral inscription near Corfinum, LACTOR 17: T38), widows who did not remarry after a set time suffered the penalties imposed on the unmarried. One of the rewards for married men who fathered children was the right

to stand for political offices below the normal minimum age, one year

for each child. Another, mentioned in Aulus Gellius, Attic Nights 2.15.4, was that, by the lex Julia de maritandis ordinibus, the ‘senior’ consul of each pair was not the older one, but the one who had more children. These rights, which will have mattered to very few citizens, show that a major concern of the lex Julia de maritandis ordinibus and lex Papia Poppaea was to keep up the numbers of children in families of the upper class. Equally, there is evidence that some of the most important provisions in these laws were not applied to the ‘lower classes’: a legal handbook used in Egypt (the wonderfully named Gnomon of the Idios Logos) states that unmarried men who had property less than 100,000 sesterces, and unmarried women with less than 50,000, were not subject to any restrictions on inheritance. Given these generous limits, many people who could not be described as poor will have been exempted from penalties; this emphasises the point that the laws were strongly concerned with the ‘top’ social classes. However, there was one way in which the lex Julia de maritandis ordinibus

encouraged marriage and the production of legitimate children among ordinary citizens as well. On the one hand, it barred senators from marrying women who were freed slaves (‘freedwomen’) or actors, or the daughters of actors. (Actors’ business was deceit, since they pretended to be other people, and they moved from place to place to make a living. Therefore the Romans regarded them as unrespectable, as much on the margins of ‘proper’ society as prostitutes, however much ‘proper’ society enjoyed their services. For exactly the same reasons, however, the Greeks, at least from the fourth century BC onwards, often gave actors the highstatus job of ambassador.) On the other hand, perhaps much more importantly, it gave legal status to marriages between the freeborn and the freed, and made their offspring legitimate. Dio (54.16) sees this provision as being principally concerned with the marriage of freeborn men and freedwomen ‘since the free-born population contained far more males than females’; this is likely to be true, as until the twentieth century very high rates of death in childbirth ensured that men usually outnumbered women. The law recognised the reality that free and freed often lived together and had children; by making their unions and offspring legitimate it gave those children a chance to learn Roman family values, and encouraged men who could not find a freeborn wife to have children in the knowledge that they would be legally protected and inherit the family name, along with their father’s full citizen status. Just as Augustus was looking to keep up the numbers of the upper classes within the citizen population, so he was keen to keep up the numbers of the citizen population within the total population of Italy and the Empire. Looked at in the context of concerns over social class, inheritance and

citizenship, then, much about the lex Julia de adulteriis coercendis becomes clearer. In particular, an explanation can be found for the double standards by which an adulterous wife and her lover could be punished, but no

punishments were laid down for an adulterous husband. If Augustus was particularly concerned to ensure that the birth-rates among the upper classes and among the citizen body remained high, it was necessary that everyone could be certain who the parents of a child were. Anyone who is around at the time of childbirth can get good visual and physical evidence that a child comes from its mother. In the days before DNA testing, it was not nearly so easy to be absolutely certain of who the father was. That is why adultery on the part of wives had to be strongly discouraged. If a man had been unfaithful, this mattered less; what really mattered was that his wife’s children were definitely his. However, it is not possible to relate all of this legislation purely to

concerns about class and children. As well as adultery, the lex Julia de adulteriis coercendis outlawed stuprum; the penalty, as for adultery, was the loss of half the man’s property. Stuprum was defined as sex with a virgin, unmarried woman (including a widow), or boy. It is possible to see the outlawing of sex with unmarried women as related to the concerns discussed above, especially as sex with unmarried slaves and freedwomen was not outlawed: affairs with unmarried free women, it could be argued, were discouraging those women from marrying, and there was a danger of producing illegitimate children who would not join the body of citizens, or the class to which their parents belonged. The Digest of Roman laws complied in the sixth century AD sums up stuprum as the offence committed by a man who ‘keeps a free woman for an affair, not marriage’. However, the outlawing of sex with ‘boys’ (it must be remembered that the Romans classed as ‘boys’ many whom we would define as adults – this is not an issue of paedophilia) does make it difficult to argue that there is no element of sexual prudery or discrimination in the legislation. The Greeks and Romans had not usually displayed intolerance of homosexuality before this, and they had certainly not considered it to be a matter in which the law should be involved. These laws between them defied all precedent in the extent to which the

state was allowed to interfere in private matters and in the disposal of private property. In some individual details Galinsky (1996: 137) may be right to talk about ‘the consolidation of a received system’, but the overall concept can certainly be regarded as revolutionary. A still more powerful sign that personal freedoms were to be restricted

in Augustus’ Rome was the fact that the law set penalties not only for committing adultery or stuprum, but even for ‘encouraging’ it. The concept of ‘encouragement’ can be defined quite loosely, and jurymen who knew that these things were of concern to the Emperor might be easily persuaded to hand out guilty verdicts. Rome was becoming a place where people could find themselves in danger of sudden unexpected prosecution and punishment. It is probably not a coincidence that the class of people known as delatores (professional informers), who were to become so hated

in the reigns of Augustus’ successors, made themselves especially busy accusing prominent men of breaking these particular laws (Tacitus, Annals 3.25).