"Marriage more shameful than adultery":

(NOTE: THE FOOTNOTE LINKS ARE NOT ACTIVE. THE ORIGINAL ONLINE DOCUMENT IS RATHER LARGE SO I DIVIDED IT INTO MORE MANAGEBLE PARTS FOR EASIER SCROLLING.UNFORTUNATELY THIS BROKE THE LINKS TO THE NOTES. IF ANYONE KNOWS HOW TO REPAIR THEM PLEASE LET ME KNOW.) Anticus

Phoenix 47 (1993) 2. pp125-154


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Introductory Note

"Marriage more shameful than adultery": slave-mistress relationships, "mixed marriages," and late Roman law.


JUDITH EVANS-GRUBBS
A CONTROVERSIA of the elder Seneca posits the following rhetorical situation: a tyrant encouraged slaves to rape their mistresses and cohabit with them in marriage. One slave refused to violate his master's daughter. After the tyrant was overthrown her father, as a reward to the respectful slave, freed him and married him to the daughter whose honor he had saved. The girl's brothers then accuse their father of insanity for having made such a disgraceful marriage for their sister.

The controversia's rhetoricians vie with each other in hurling abuse at the freedman for marrying his former mistress and invent fanciful description of the sordid nature of the union: "Marriage more shameful than any adultery (matrimonium omni adulterio turpius )!" exclaims one. Even those taking the father's side against his sons can only offer feeble justifications of a father's right to choose his daughter's husband; both sides agree that the slave's motives in saving his mistress were purely self-serving and in no way deserving of marriage with the child of a man who was not merely freeborn (ingenuus), but "born to respectable parents" (honestis parentibus natus ).[1]

Roman society had never favored the idea of a free woman having a sexual relationship with a slave, and the insinuation that they consort with slaves or low-born males is a favorite slur of Roman satirists against supposedly respectable women.[2] To the elder Seneca and his upper-class audience, even legitimate marriage between a freedman and his former master's daughter was abhorrent, for it threatened the proper hierarchy of male over female and brought disgrace upon the woman and her family.

In the eyes of the educated male élite who made and interpreted the law, legitimate Roman marriage was a union between social equals, an alliance not only of two people but of their families, intended to produce children whose legitimacy and status were not in question and who could fittingly succeed to their parents' property and role in the social order.[3] And although classical Roman marriage ideology tended not to stress the ideal of wifely submissiveness found elsewhere in the Mediterranean, it did disapprove of unions in which the wife had significantly more wealth or higher rank than her husband, since the male was the acknowledged head of the household (paterfamilias) and his superior authority had to be unquestioned.[4]

This article will examine the evidence for monogamous unions between free women and slave men in imperial Roman society, with particular attention to the relationship of a woman with her own slave or former slave. This evidence is found mainly in the Roman legal sources, especially later imperial legislation in the Codes of Justinian and Theodosius. The Roman legal attitude toward unions between free women and slave men was always unfavorable, and in the late Empire imperial attempts to regulate or repress such relationships increase. In the fourth century Constantine enacted a number of laws against marriages between partners of different social status (including unions between men of high social standing and lowborn women as well as between free women and slaves), and his legislation remained largely in force until Justinian's overhaul of Roman law in the sixth century. In discussing this legislation and its social context, I hope to contribute to our understanding of the marital practices and mores of the imperial period and to the use of Roman legal sources for the social history of antiquity.



I FREE-SLAVE UNIONS IN CLASSICAL ROMAN LAW
Roman law had never recognized monogamous sexual relationships between slaves, or between free people and slaves. Rather, such unions were termed contubernia and had none of the legal consequences of iustum matrimonium (legitimate marriage).[5] Unions between free men and slave women, though without legal validity, were not penalized. A man who wanted to marry his slavewoman could free her and become both her husband and her patron, and Latin funerary inscriptions provide many examples of such patron-liberta marriages.[6] Indeed, although the lex Aelia Sentia of Augustus normally denied full legal validity to manumissions in which the slave was less than thirty years old or the owner younger than twenty, an exception was made in the case of a man who wished to free his slavewoman for the sake of marriage (matrimonii causa).[7]

The legal encouragement of marriage between free men and former slaves was not, however, extended to the highest ranks of Roman society: under the Augustan lex Julia de maritandis ordinibus, senators and their descendants to the third generation could not contract iustum matrimonium with freedpeople.[8] But although a man of senatorial status could not legally marry a freedwoman, he could live with her as his concubine; this sort of concubinatus was a perfectly respectable (though extra-legal) relationship.[9]

The Augustan rule against marriage between senatorial men and former slaves applied also to the female children and grandchildren of senators; and in the mid-second century Marcus Aurelius decreed that such unions were not only not iusta matrimonia, but had no legal validity whatsoever.[10] And Roman society did not condone concubinatus between a woman of senatorial rank and her former slave as it did between a senatorial man and his liberta, not only because of the traditional double standard which allowed men greater sexual freedom than women, but also because of Roman disapproval of unions in which the wife had a higher social status than her husband.[11]

Roman legal and social attitudes were also stricter in regard to monogamous relationships between a free woman outside the senatorial order and a man of servile birth. A free woman who lived in contubernium with someone else's slave fell under the provisions of the senatusconsultum Claudianum of 52 A.D., and became the slave of her partner's owner if the owner had not agreed to the union, or his freedwoman if he had agreed. Children of the union might also be slaves even when the mother remained free, although normally children of unions not recognized by Roman law took their mother's status.[12]

The s.c. Claudianum, which had been framed by Claudius' freedman Pallas, originally appears to have been directed primarily toward the marital arrangements of the imperial household. Because of the high prestige and unusual opportunities for advancement available to members of the emperor's slave familia, contubernium with an imperial slave was an attractive option for some freeborn women (who might themselves be the daughters of imperial freedmen), despite the fact that this could not become a legitimate marriage until the slave was freed. The s.c. Claudianum thus ensured that imperial slaves would have children also of servile status who would remain in the imperial household.[13] Hadrian modified the law somewhat, so that if the mother remained free, she had free children, but it appears that such unions generally resulted in slave children, at least where slaves of the imperial household were concerned.

The s.c. Claudianum remained in force throughout antiquity until its final repeal by Justinian and was the subject of detailed discussion in the post-classical handbook known as the Sententiae Pauli and in a number of fourth- and fifth-century laws preserved in the Theodosian Code. But it was directed against women who cohabited with someone else's slave. There seems to have been no general law against the contubernium of a free woman with her own slave until the fourth century, although, given the very incomplete state of preservation of ancient legal sources, such a law may once have existed.

However, disapproval of unions between freeborn women and men who had formerly been their slaves can certainly be found in earlier imperial legislation. Manumission of a male slave by his mistress matrimonii causa had never been considered seemly, and freeborn women did not enjoy the dispensation from the age requirements of the lex Aelia Sentia that had been allowed to men who wished to marry their freedwomen.[14] Indeed, legal experts of the early third century debated whether a woman should actually be prohibited from marrying her own freedman. According to the third-century jurist Marcian, "There are those who think that even women can manumit for the sake of marriage, but only if, by chance, her own fellow slave (conservus) had been left to her as a legacy for this purpose" -- that is, if the woman had herself been a slave and her patron had bequeathed to her the man who had been her contubernalis in slavery. But if a woman had been her patron's wife, she should not later marry one of her fellow freedmen, according to Papinian, secretary a libellis under Septimius Severus.[15]

On the other hand, Ulpian, Papinian's immediate successor as secretary a libellis, wrote: "If a patrona is so lowborn (ignobilis) that even marriage with her own freedman is respectable for her, it ought not to be prohibited by the office of the judge investigating this."[16] Ulpian's tolerant attitude does not seem to have been shared by all of his contemporaries. The mention of a judicial investigation implies that the existence of such a marriage might be brought to the attention of the authorities, on the assumption that it was illegal and that the participants should be punished. Ulpian may have been thinking of this rescript sent by Septimius Severus in reply to the petition of a certain Valeria:

libertum, qui patronam seu patroni filiam vel coniugem vel neptem vel proneptem uxorem ducere ausus est, apud competentem iudicem accusare poteris moribus temporum meorum congruentem sententiam daturum, quae huiusmodi coniunctiones odiosas esse merito duxerunt.

You will be able to lay charges against a freedman who dared to marry his patroness, or the daughter, wife, granddaughter, or great-granddaughter of his patron, with the appropriate judge, who will give a sentence in accordance with the mores of my reign, which have rightly considered unions of this sort odious.[17]

It is not clear what Valeria's interest in the situation was, but as a woman she could only have initiated legal action in cases which directly concerned her or her immediate family.[18] Perhaps some female relative, oblivious to the social stigma attached to marriage with a legal inferior, had married her freedman or that of her father or deceased husband. Valeria had then written to the Emperor to learn whether such a union was really legal and, if not, whether the former slave could be punished for his audacity. Similarly, a woman called Hygia consulted the emperor Philip about a freedman who had arranged the marriage of his patron's daughter to his own illegitimate son, also of slave birth. The presumptuous freedman was the legal guardian of his deceased patron's child, and marriage of a pupilla to her tutor or his son was in any case illegal under Roman law. Philip assured Hygia that such a union was forbidden.[19] The girl in question must have been a relative of Hygia, perhaps her daughter. The Sententiae Pauli, dating from the late third or early fourth century, report that the penalty for marriage between a freedman and his patroness (or the wife or daughter of his patron) was condemnation to the mines or to opus publicum, state-imposed hard labor.[20]



II UNIONS BETWEEN FREEBORN WOMEN AND FREEDMEN: EPIGRAPHICAL AND LITERARY EVIDENCE
The legal texts cited above imply that marriage between a woman and her freedman or the freedman of her husband or father did sometimes occur, and that some people found it objectionable. Valeria and Hygia were writing to the emperor about specific cases in which they were in some way involved. There is in fact inscriptional evidence for marriage between patrona and libertus in imperial Rome, though it is much less abundant than the evidence for unions between patron and freedwoman.[21] The commemoration of his patroness wife by the grateful freedman Tiberius Claudius Hermes provides an example:

Tiberius Claudius Hermes. I placed in the burial place of her relatives Claudia Ilias, the daughter of Tiberius, the best patroness [who was] at the same time my most faithful wife, with whom I lived for twenty-two years, one month [and] two days, without any envy (aemulatio) by the indulgence of her whose kindness, faith, and opinion I obtained for myself for as long as I shall live. You, best [and] most holy mistress (domina), I would ask the gods that some one of my people make my departure such [as I made yours]. She lived forty-seven years, one month and two days.[22]

The identification of Claudia Ilias by her father's nomen indicates that she was freeborn, but her father was probably a freedman of one of the Julio-Claudian emperors. She was already twenty-five years old when she married Hermes; since that would be a rather late age for first marriage for a Roman woman, she may have been a widow or divorcée who had more freedom to choose her second mate than a teenage girl would have had.[23] Hermes was probably at least thirty years old when she freed him, since although a freedwoman could legally free her former conservus for marriage before he turned thirty, an ingenua could not.[24]

However, most patrona-libertus unions were cases where the woman, freed first, had been able to buy her contubernalis out of slavery or had been left him as a legacy by her former master.[25] Epigraphical evidence indicates that free women who married someone else's slave, and therefore were subject to the provisions of the s.c. Claudianum, were generally of slave birth themselves or were the children of former slaves.[26] The exception is women who married imperial slaves or freedmen, the majority of whom appear to have been ingenuae (although they would have undergone a diminution of status to libertae or servae Caesaris if their husbands were still slaves).[27] But in this case, the prestige and power that members of the familia Caesaris often possessed would have compensated for the husbands' servile status, and the women, though freeborn, are not likely to have been of equestrian or senatorial status.

However, two Christian works of the early third century may refer to the possibility of relationships between slaves and women of higher rank. The Refutation of all Heresies (also known as the Philosophumena), now generally attributed to the Christian writer Hippolytus, describes an ecclesiastical decision made by Callistus, bishop of Rome from 217 to 222. Callistus, who was himself of servile birth, had declared that Christian women of high social status who did not wish to lose their rank but could not find suitable Christian husbands among men of their own class could "marry" those beneath them, either slaves or free men, provided that these unions were life-long and monogamous.[28]

Callistus' sanction of such unions had no effect on the Roman legal attitude toward slave-free relationships, nor indeed can it be considered "canon law" of the type later promulgated by church authorities.[29] It merely gave a Christian woman who wished to live with a low-born man the comfort of knowing that their relationship was considered a marriage in the eyes of the bishop of Rome. Callistus' decision was, however, strongly condemned by Hippolytus, who claimed that it had resulted in an increase in abortions by high-ranking women who did not wish to bear offspring to their low-born partners.

Since Hippolytus (our only source for this so-called "decree of Callistus") had himself been an unsuccessful candidate for bishop of Rome and hated Callistus, his testimony is open to suspicion. But Hippolytus' contemporary, the African Christian writer Tertullian (who considered Callistus overly lenient on other moral issues), also recommended that Christian women marry beneath themselves if they could not find partners of their own rank within the church. Tertullian's second treatise Ad uxorem was inspired by the occurrence of "mixed marriages" between socially conscious Christian women and non-Christian men, marriages allegedly caused by a scarcity of Christian men of wealth and high status. To discourage Christian women from what he considered dangerous and unholy unions, Tertullian pointed to the example of aristocratic and wealthy pagan women:

Many women, noble in birth and fortunate in wealth, join themselves indiscriminately to ignoble and humble men, who have been chosen for pleasure or castrated for lust. Some women bring themselves freely even to their own slaves, in contempt of everyone's opinion, as long as they have men from whom they fear no impediment to their freedom.

He concluded that Christian women should therefore certainly not be ashamed to marry poor men, especially since "to the poor belongs the kingdom of heaven."[30]

Tertullian's description of unions between upper-class pagan women and low-born men would seem to refer to promiscuous relationships of the sort attacked by Roman satirical writers. But the reference to the avoidance of any "impediment to their freedom" by women who cohabit with their own slaves or freedmen may refer to the senatusconsultum Claudianum (cited by Tertullian earlier in the same passage),[31] under which free women who lived with someone else's slave became the slave or freedwoman of their partner's owner. Such relationships were generally quasi-marital rather than simply cases of sexual exploitation of slaves by upper-class owners. The tendentious and often enigmatic character of Tertullian's writing makes interpretation of this passage difficult.

Hippolytus and Tertullian both seem to be talking primarily about women of senatorial status who would lose their rank if they married anyone outside the senatorial class, according to a rule by which married women took the status of their husband rather than of their father.[32] Marie-Thérèse Raepsaet-Charlier attributes this rule to Marcus Aurelius, and suggests that the appearance in the second century of new titles for the senatorial order (such as the the term clarissima femina for a senatorial woman) was prompted by an increasing social mobility and a rise in the number of marriages between those of different social status in the second century, including unions between members of the senatorial aristocracy and freedpeople.[33] Inscriptions of the late second and third centuries do indicate that some women of senatorial status (including several Christian women) were marrying men of lower rank, that is, equestrians.[34] However, the only clearly attested example of a marriage between a woman of senatorial status and a freedman is found in the Historia Augusta, where Lucius Verus is said to have given the widow of a senator in marriage to one of his (Verus') freedmen. His colleague, Marcus Aurelius, objected to the union and refused to come to the wedding. Perhaps this incident (if true) prompted Marcus Aurelius' oratio denying all legal validity to such unions.[35]

A third-century Christian dedication to a certain Flavia Speranda, identified as "c.f." (the standard abbreviation for "clarissima femina"), has been thought to refer to a marriage between a woman of senatorial rank and a slave.[36] Flavia Speranda's husband Onesiforus apparently was not of senatorial rank, and does not identify himself by a nomen (the traditional indicator of free status) but only by a cognomen. However, this need not mean that he was a slave: the use of only one name on inscriptions becomes increasingly common in the later Empire, as does the omission of any mention of freed status by dedicants who were in fact former slaves.[37] The disappearance of traditional Roman indicators of status on late imperial inscriptions reflects a society in which free birth and possession of the Roman citizenship had less significance than in an earlier era, and suggests increasing confusion over legal status and its implications.



III "MIXED MARRIAGES" AND STATUS CONFUSION IN THE THIRD CENTURY
In 212, the Edict of Caracalla extended the Roman citizenship to virtually all free inhabitants of the Empire. Before that time, imperial subjects who were not Roman citizens would have had no reason to know about or observe the Roman legal rule that marriage between a free person and a slave was a legal impossibility, and so many provincials may have been content to live in such a relationship without bothering to manumit their partner. Egyptian papyri provide several cases of unions between free women and slave men, although the status of such relationships under native Egyptian law is unclear.[38] After 212, all these new citizens were subject to Roman laws, including the law of marriage, but they would not all know what the law was or how it differed from their native law and custom.[39]

Roman law tended to see status in terms of fixed either/or distinctions (slave or free, humilior or honestior), but in reality the lines were not so clearly drawn, and within the bounds of the Roman Empire there could be found a wide range of statuses often based in very ancient local custom. Even in Rome, imperial laws on slave-free unions (such as the s.c. Claudianum) " ... reveal that the social gulf between slave and free citizen is not necessarily wide."[40] By the beginning of the fourth century, social and legal distinctions between free and non-free had become increasingly blurred, as some humiliores became subject to much the same treatment and living conditions as slaves. It was not possible to draw neat distinctions and assign a simple status designation to all inhabitants of the Empire, to sum up their rights and duties in a single word whose implications would be clear to all.[41] Many third-century imperial rescripts are responses to inquiries about status and legal rights, and suggest that confusion over status was a not uncommon problem.[42] These questions often concerned the validity of unions between partners of different status and the legitimacy of children born from them.

One often-cited example is the rescript sent in 215 by Caracalla to a certain Hostilia:[43]

si ignorans statum Erotis ut liberum duxisti et dotem dedisti isque postea servus est iudicatus, dotem ex peculio recipies et si quid praeterea tibi debuisse eum apparuerit. filii autem tui, ut ex libera nati incerto tamen patre, spurii ingenui intelleguntur.

If, in ignorance of Eros' status, you married him as a free man and gave him a dowry, and he afterwards was judged a slave, you will get your dowry back out of his peculium along with anything else it will appear that he owed you. Moreover, your children are understood to be illegitimate [but] freeborn, as they were born from a free woman but uncertain father.

Apparently Hostilia had married a runaway slave, who had later been reclaimed by his owner and judged a slave in a suit de liberali causa. Hostilia had given Eros a dowry and they had had children together, so this must have been a union of some duration. Presumably it had ended as soon as Eros' true status became known, since otherwise Hostilia could have become the slave or freedwoman of her husband's master under the s.c. Claudianum.

Caracalla found Hostilia's claim that she was unaware of her husband's status perfectly plausible, and third-century jurists also discussed the possibility of free people marrying slaves in ignorance as though this were a not infrequent occurrence.[44] It was even considered possible that the slave himself would be unaware of his true status.[45]

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