N. Lewis and M. Reinhold, Roman Civilization Sourcebook I: The Republic
204. SOCIAL LEGISLATION: FOSTERING THE FAMILY
In 18 B.C. Augustus launched his program of social and moral regeneration. Its goals were to restore public morality and to encourage marriage and family life, especially in the upper classes, and to assure the domination of the Italian stock in the Empire by increasing the birth rate. To these ends he enacted three laws. In the Julian Law on Curbing Adultery he took the unprecedented step of making adultery a criminal offense punishable by exile and loss of property and even sanctioned the killing of an adulterer caught in the act. The Julian Law on Classes Permitted to Marry, supplemented in A.D. 9 by the Papian-Poppaean Law, with which its provisions are frequently fused in the sources, eliminated some (but not all) class barriers to marriage, penalized celibacy, granted privileges to married people, and rewarded childbearing. Though these laws remained on the books down to the time of Justinian and were included in his codification, their efficacy was at best limited -Juvenal (Satires ii. 37) called them "dormant"; Tertullian (Apology iv) called them "most futile." The essence of their futility lay in the fact that the moral symptoms which they attempted to abate by legislative fiat were produced by underlying socioeconomic conditions that remained unaltered. (The situation is neatly epitomized by the fact that the consuls from whom the Papian-Poppaean Law took its name were both bachelors.) The result was widespread evasion and opposition, to which the emperors responded with occasional palliatives and numerous individual dispensations.
THE SLACKENING OF THE MARRIAGE BOND
In this ode, published in 23 B.C., Horace comments on the prevalence of marital infidelity as part of the general decline of religion and morality in Roman society.
Horace, Odes iii. vi (abridged); Translation adapted from Loeb Classical Library
Thy father's sins, O Roman, thou though guiltless shalt expiate, till thou dost restore the crumbling temples and shrines of the gods and their statues soiled with grimy smoke. 'Tis by holding thyself the servant of the gods that thou dost rule; with them all things begin; to them ascribe the outcome! Outraged by neglect, they have visited unnumbered woes on sorrowful Italy.... Teeming with sin, our times have sullied first the marriage bed, our offspring, and our homes; sprung from this source, disaster's stream has overflowed the people and the fatherland. . . The young maiden even now trains herself in coquetry and, impassioned to her finger tips, plans unholy amours. Anon she seeks young paramours at her husband's board, nor stops to choose on whom she will swiftly bestow illicit joys when lights are banished, but openly when bidden, and not without her husband's knowledge, she rises, be it some peddler summons her, or the captain of some Spanish ship, lavish purchaser of shame.... What do the ravages of time not injure! Our parents' age, worse than our grandsires', bore us still less worthy and destined soon to produce an offspring still more wicked.
THE JULIAN LAW ON CURBING ADULTERY
Various legal sources, collected in Acta Divi Augusti, (1945) pp. 112-128 (abridged)
"No one shall hereafter commit debauchery or adultery knowingly and with malice aforethought." These words of the law apply to him who abets as well as to him who commits debauchery or adultery.
The Julian Law on Curbing Adultery punishes not only defilers of the marriages of others ... but also the crime of debauchery when anyone without the use of force violates either a virgin or a widow of respectable character.
By the second section [of the law] a father, if he catches an adulterer of his daughter ... in his own home or that of his son-in-law, or if the latter summons him in such an affair, is permitted to kill that adulterer with impunity, just as he may forthwith kill his daughter.
A husband also is permitted to kill an adulterer of his wife, but not anyone at all as is the father's fight. For this law provides that a husband is permitted to kill [a procurer, actor, gladiator, convicted criminal, freedman, or slave] caught in the act of adultery with his wife in his own home (but not in that of his father-in-law). And it directs a husband who has killed any one of these to divorce his wife without delay. Moreover, he must make a report to the official who has jurisdiction in the place where the killing has occurred and he must divorce his wife; if he does not do this, he does not slay with impunity.
The law punishes as a procurer a husband who retains his wife after she has been caught in adultery and lets the adulterer go (for he ought to be enraged at his wife, who violated his marriage). In such a case the husband should be punished since he cannot claim the excuse of ignorance or feign patience on the pretext of not believing it.
He by whose aid or advice with malice aforethought it is made possible for a man or woman caught in adultery to evade punishment through bribe or any other collusion is condemned to the same penalty as is fixed for those who are convicted of the crime of procuring.
He who makes a profit from the adultery of his wife is scourged.... If a wife receives any profit from the adultery of her husband she is liable under the Julian Law as if she were an adultress.... Anyone who marries a woman convicted of adultery is liable under this law.
The law prescribes that when notice of divorce has been sent on suspicion of the crime of adultery, the emancipation of slaves who belong to the wife or husband or their parents is to be delayed for a space of two months, reckoned from the date of the divorce, to allow for employing examination under torture if the need arises.
It was enacted that women convicted of adultery be punished by confiscation of half of their dowry and a third of their property and by relegation to an island, and that the male adulterers be punished by like relegation to an island and by confiscation of half of their property, with the proviso that they be relegated to different islands.
THE JULIAN LAW ON CLASSES PERMITTED TO
MARRY AND THE PAPIAN-POPPAEAN LAW
Suetonius, Life of Augustus xxxiv
Among the laws which he revised or enacted were a sumptuary law and laws on adultery and chastity, on bribery, and on classes permitted to marry. The last of these he amended somewhat more severely than the others, but in the face of the clamor of opposition he was unable to push it through until he had withdrawn or mitigated some of the penalties and increased the rewards.... And when he saw that the intent of the law was being evaded by betrothal with immature girls and by frequent changes of wives, he shortened the duration of betrothals and set a limit on divorces.
. He ordered that girls might not be betrothed before the age of ten, and he limited the duration of engagements to a maximum of two years. Tacitus adds (Annals III. xxviii) that the rewards offered for successful prosecution of evaders of these laws stimulated the rise of professional spies and informers.
Cassius Dio, Roman History LIV. xvi. 1-2; Translation from Loeb Classical Library
He laid heavier assessments upon the unmarried men and women and on the other hand offered prizes for marriage and the begetting of children. And since among the nobility there were far more males than females, he allowed all [free men] who wished, except senators, to marry freedwomen, and ordered that their offspring should be held legitimate.
Tacitus, Annals III. xxv
Augustus in his old age supplemented the Julian Laws with the PapianPoppaean Law in order to increase the penalties on celibacy and enrich the treasury. But people were not driven thereby to marriage and the rearing of children in any great numbers, so powerful were the attractions of the childless state. Instead the number of persons courting danger grew steadily greater, for every household was undermined by the denunciations of informers; and now the country suffered from its laws, as it had previously suffered from its vices.
Various legal sources, collected in Acta Divi Augusti, (1945) pp. 166-198 (abridged)
The Julian Law provides as follows: No one who is or shall be a senator, or a son, grandson born of a son, or great-grandson born of a son's son of any one of these, shall knowingly and with malice aforethought have as betrothed or wife a freedwoman or any woman who herself or whose father or mother is or has been an actor. And no daughter of a senator or granddaughter born of a son or great-granddaughter born of a grandson (a son's son) shall knowingly and with malice aforethought be betrothed or married to a freedman or to a man who himself or whose father or mother is or has been an actor, and no such man shall knowingly and with malice aforethought have her as betrothed or wife.
Freeborn men are forbidden to marry a prostitute, a procuress, a woman manumitted by a procurer or procuress, one caught in adultery, one convicted in a public action, or one who has been an actress.
Conditions added contrary to laws and imperial decrees or to morality - such as, "if you do not marry," or "if you have no children" - carry no weight.
In the seventh section of the Julian Law priority in assuming the fasces is given not to the consul who is older but to the one who has more children than his colleague either in his power [i.e., minors or unmarried females] or lost in the war.... But if both are married and the fathers of the same number of children, then the time-honored practice is restored and the one who is older assumes the fasces first.
Persons are exempted from serving as guardians or trustees for various reasons, but generally because of their children, whether they are in the father's power or free from his power. For anyone who has three living children in Rome, or four in Italy, or five in the provinces, can, after the example of the other compulsory public services, be exempted from serving as guardian or trustee.
No freedman who has two or more sons or daughters of his own in his power (excepting one who has been an actor or who has hired out his services to fight with animals) shall be obliged to give, do, or perform for his patron or patroness or their children services as gift or duty, or anything else which he may have sworn, promised, or bound himself to in return for his freedom.
A freedwoman who is married to her patron shall not have the right of divorce ... as long as the patron wants her to be his wife.
A man or wife can, by virtue of marriage, inherit a tenth of the other's estate. But if they have living children from a previous marriage, in addition to the tenth which they take by virtue of marriage they receive as many tenths as the number of children. Likewise a common son or daughter lost after the day of naming adds one tenth, and two lost after the ninth day add two tenths. Besides the tenth they can receive also the usufruct of a third part of the estate, and whenever they have children the ownership of the same part.
Sometimes a man or wife can inherit the other's entire estate, for example, if both or either are not yet of the age at which the law requires children-that is, if the husband is under twenty-five and the wife under twenty; or if both have while married passed the age prescribed by the Papian Law - that is, the man sixty, the woman fifty.... They enjoy testamentary freedom in each other's favor if they have obtained the "right of children" from the emperor, if they have a common son or daughter, or if they have lost a fourteen-year-old son or twelve-year-old daughter or two three-year-olds or three after the day of naming ... . Likewise if the wife has a child by her husband within ten months after his death she takes the whole of his estate.
Sometimes they inherit nothing from each other, that is, if they contract a marriage contrary to the Julian and Papian-Poppaean Law (for example if anyone marries a woman of ill repute or a senator marries a freedwoman).
Bachelors also are forbidden by the Julian Law to receive inheritances or legacies.... Likewise by the Papian Law childless persons, precisely because they have no children, lose one half of inheritances and legacies.
The Julian Law exempted women from marriage for one year after the death of a husband and six months after a divorce; the Papian Law [raised these to] two years after the death of a husband and a year and six months after a divorce.
In keeping with the thirty-fifth section of the Julian Law, those who without just cause prevent any children in their power from marrying or refuse to give a dowry ... are compelled to give them in marriage and bestow dowry.
Since the [passage of the] Papian Law the portion of one who is ineligible lapses and belongs to those named in the will who have children.
If there is no one entitled to the possession of an estate, or if there is someone but he has failed to exercise his right, the estate passes to the public treasury.