affectio maritalis

Marriage
The Purpose of Marriage
Biology of Marriage
Ways of Contracting (law vs.
Custom)
The Purpose
of Marriage
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.
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, involving
both divine and human law.
One must marry:
Augustus’
reasoning of his Laws on Marriage: a quote
from 131BC speech of Q. Caecilius Metellus
... 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.
Cato and the
Metaphor of the
• Marcus Porcius Cato
Uticensis
• Marcia
• Quintus Hortensius
Hortalus
• Marcus Calpurnius Bibulus
Plutarch, Life of Cato
25 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. However, the case was as follows, according to
Thrasea, who refers to the authority of Munatius, Cato's companion
and intimate associate. 2 Among the many lovers and admirers of
Cato there were some who were more conspicuous and illustrious
than others. One of these was Quintus Hortensius, a man of splendid
reputation and excellent character. This man, then, desiring to be
more than a mere associate and companion of Cato, and in some way
or other to bring his whole family and line into community of kinship
with him, attempted to persuade Cato, whose daughter Porcia was the
wife of Bibulus and had borne him two sons, to give her in turn to
him as noble soil for the production of children. 3 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.
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. And if Bibulus were wholly devoted to
his wife, Hortensius said he would give her back after she had borne him a
child, and he would thus be more closely connected both with Bibulus himself
and with Cato by a community of children. 4 Cato replied that he loved
Hortensius and thought highly of a community of relationship with him, but
considered it absurd for him to propose marriage with a daughter who had
been given to another. Then Hortensius changed his tactics, threw off the
mask, and boldly asked for the wife of Cato himself, since she was still young
enough to bear children, and Cato had heirs enough. 5 And it cannot be said
that he did this because he knew that Cato neglected Marcia, for she was at
that time with child by him, as we are told. 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.
27 This incident occurred at a later time,28 it is true, but since I had taken up
the topic of the women of Cato's household I decided to anticipate it.
The Biology
of Marriage
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
de
Their proper places. Nor is need the least
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 seaAye, 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.
Lucretius,
rerum natura
social customs
& marriage
making
Plutarch on marriage:
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,1 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?
Plutarch on marriage: 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.
Plutarch on marriage
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
dextrarum iunctio
dextrarum
iunctio
a wedding ring
wedding procession
deductio in domum mariti
Marriage
in Law
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
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.
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
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.
the problems with
affectio maritalis
the problems with
affectio maritalis
uncertainty of status (as legitimate
children enter under patria potestas and
automatically obtain citizenship)
the problems with
affectio maritalis
uncertainty of status (as legitimate
children enter under patria potestas and
automatically obtain citizenship)
financial problems (gifts and dowries!)
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
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.
the consent and 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.
the consent and 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.
Conubium
a relative capacity inherent to ius
civile
corresponds – even if negatively
and anachronistically – to the
canonistic-modern notion of
matrimonial impediments
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?
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”
One must marry
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.
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.
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.
(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.
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….
Monumentum Ancyranum
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.
The
marriage
practice
of the
Imperial
House
The
marriage
practice
of the
Imperial
House
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 exconsuls, 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.
The
marriage
practice
of the
Imperial
House
Iulia Text
- Ahrodite
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.
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.