C Forced marriages
It is clear from the laws on consent to marriage that late Roman emperors considered the agreement of the paterfamilias to be essential in making a legitimate marriage.
Thus in addition to reiterating the necessity of paternal consent for a valid marriage pact, they also banned unions that were achieved by force or extortion on the part of the prospective husband.A law of Constantine was enacted against a “marriage strategy” directly opposed to marriages arranged by the paterfamilias and betrothal pacts between families — marriage by abduction (raptus), also known as bride theft [Evans Grubbs 1989; 1995, 183—93]. Constantine’s law harshly punished not only the abductor himself, but also the abducted girl, if she did not resist, and even her parents, if they later acquiesced in the marriage. Like Cod. Theod. 3.5.12 of 422 [Chapter 2, Part II.B], this law assumes that a young woman does not really know what is good for her, and if allowed to have her own choice, will make a foolish decision against her own best interests.
Cod. Theod. 9.24.1, 1 April, 326
Emperor Constantine Augustus to the People:
If someone who has not previously made any agreement with a girl’s parents should seize her (when she is) unwilling or if he should lead her away (when she is) willing — hoping for protection from the response of one whom, on account of the frivolity and fickleness of her sex and judgment, our ancestors completely excluded from making legal complaints and from giving testimony and from all judicial matters118 — the girl’s response shall be of no use to him according to the ancient law, but rather the girl herself shall be made guilty by association in the crime.
(1) And since often the watchfulness of parents is frustrated by the stories and wicked persuasions of nurses, this punishment shall first of all threaten them (the nurses), whose service is proven to have been hateful and whose talk is proven to have been bought: the opening of their mouth and throat, which brought forth destructive encouragements, shall be closed by the swallowing of molten lead.
(2) And if voluntary assent is revealed in the virgin, she shall be struck with the same severity as her abductor.
Nor shall impunity be offered to those girls who are abducted against their will, since they too could have kept themselves at home till their marriage day and, if the doors were broken down by the abductor’s audacity, they could have sought help from the neighbors with all their efforts. But we impose a lighter penalty on these girls, and order that only legal succession to their parents is to be denied them. (3) Moreover, if the abductor who has been proven guilty without guilt should wish to appeal, he shall certainly not be heard.(4) But if any slave should bring forth into public the fact that the crime of abduction (raptus) has been neglected by deception or disregarded by an agreement,119 he shall be rewarded with Latin status, or if he already has Latin status, he shall become a Roman citizen.120 The parents, for whom vengeance was especially a concern, if they displayed forbearance and repressed their sorrow,121 shall be struck with deportation. (5) We order that partners and accomplices of the abductor also be subjected to the same punishment without regard to sex; and if among these attendants anyone of servile status should be caught, we order that person to be burned without regard to sex.
Given at Aquileia on the Kalends of April in the consulship of Constantine Augustus for the sixth time and of Constantius Caesar.122
Constantine’s law has shocked many modern commentators, particularly since it calls for the victim to suffer the same penalty as her abductor, if she did not actively try to prevent the abduction. What this penalty actually was is not specified in the law as it is preserved in the Theodosian Code. Presumably it was death, perhaps a particularly shameful form of the death penalty, such as being thrown to the beasts in the arena.
This seemed too harsh to later emperors, and a law of Constantine’s son Constantius [Cod. Theod. 9.24.2, 349] reduces the sentence to the “capital penalty” — death by decapitation rather than something more painful and humiliating (the penalties for slave accomplices remained the same). However, it is doubtful whether even this “milder” punishment was inflicted by judges to whom abduction cases were brought — when, indeed, such cases were actually brought to court. More often they would have been handled privately, which is what the law wants to prevent. A third law [Cod. Theod. 9.24.3, 374] urges that a case be brought as soon as abduction has occurred, and puts a statute of limitation of five years on prosecution, after which time no one can make an accusation or question the legitimacy of the marriage or the children born from it.123Abduction was not the only means of forcing a marriage against the will of a young woman or her family. A law of 380 attacks a more subtle method of forcing the hand of a paterfamilias: pressure brought to bear by powerful officials. Late antique emperors were anxious to repress abuses of power by office-holders [Harries 1999, esp. 153—71], and the following law of Theodosius I penalizes officials who use their authority to force alliance with local families. Marriage between an imperial official (especially the provincial governor) and a woman in the province in which he held office had been forbidden already in the earlier Empire [Part I.C.3]. Betrothal agreements, however, were not prohibited, and marriage could take place as soon as the official laid down his office. The following passage is part of a longer law, other parts of which also dealt with abuses of power by provincial governors and with penalties for breaking betrothals [see Chapter 2, Part II.C].124
Cod. Theod. 3.11.1, 17 June, 380
Emperors Gratian, Valentinian (II), and Theodosius Augusti to Neoterius, praetorian prefect:
If anyone endowed with ordinary or any kind of power should use the occasion of his power in regard to contracting marriage when the (women) themselves or their relatives125 are unwilling, whether they arepupillae12 or virgins or widows in their fathers’ home or widows who are legally independent, or finally of any kind whatever, and is revealed to exhibit or have exhibited his favor in a threatening manner to those whose interests are being considered here127 when they are unwilling, we decree that he is liable to a fine of ten pounds of gold, and, when he has left office, we forbid him to usurp the rank which he has reached.128 To be sure, (we punish him) with such a penalty so that, if he has been unwilling to obey the sanction of our law in regard to claiming that honor which he has used badly, he shall not be allowed ever for two years continuously to live in that province in which he usurped this (honor) for himself.
(1) Since, however, we understand that certain homes or certain relatives must be additionally fortified against hidden malice, we order that whatever man or woman has been assailed by hidden promises or threats by the official129 for a marriage to which they scorn to give consent, (then) immediately after filing an official complaint, they along with their house and that of their family, shall cease to belong to his jurisdiction; the defenders of each city and the public servants of the same official shall take care of this. And indeed, if this will be a matter of the wickedness of an ordinary official, all the business of this household and all its affairs, either civil or criminal, shall be in the competency of his vicar130 for as long as the same man will be in office.
But if, however, the vicar or someone of similar authority shall attempt violence in contracting a marriage of this sort, in turn the ordinary official shall be the intermediary. But if both will be suspected, protection of such homes shall belong especially to the illustrious (praetorian) prefecture, for as long as the same man shall be in office.Given at Thessalonica on the fifteenth day before the Kalends of July in the fifth consulship of Gratian Augustus and the first consulship of Theodosius Augustus.131
Despite general laws against extorting marriages by violence or social presssure, it was still possible for influential citizens (especially senators and imperial office-holders) to receive special permission from the emperor for unions which would otherwise be invalid, as the remarks of Ambrose [Part II.A] and Jerome [Part II.B.3] reveal. (This was the case in the earlier imperial period also; cf. D.23.2.31.4 in Part I.B for imperial indulgence granted to senators for marriage with a freedwoman.) To prevent abuse of imperial generosity, a western law of 409 explicitly prohibited the seeking of imperial indulgence for forbidden marriages and denied all validity to indulgences which were thus given. Exception was made for cousin marriage, which was still illegal in the western Empire [Part II.A], and for requests for imperial help in recovering arrhae sponsaliciae when a betrothal had been broken [Chapter 2, Part II.C].
Cod. Theod. 3.10.1, 23(?) January, 409
Emperors Honorius and Theodosius (II) Augusti to Theodorus, praetorian prefect:
Certain people, neglecting the rule of ancient law, think that a marriage — which they understand they do not deserve — should be requested from us by creeping up with their entreaties, pretending that they have the girl's consent.
For this reason we prohibit such a kind of betrothal by the decision of the present law. Therefore, if anyone has obtained a marriage by surreptitious entreaties contrary to this decision, he shall not doubt that he will undergo the loss of his property and the penalty of deportation and that, having lost the right of legal marriage which he obtained by forbidden usurpation, he shall not have legally recognized children by this means, nor has he ever earned the efficacious accomplishment of a pardon, by the favor of a requested indulgence or the emperor's special decision.132 Those whom the law of our father of triumphal memory did not forbid to supplicate for the union of cousins, that is, the fourth degree of relationship, on the model of imperial indulgences are excepted (from this law). Also excepted are those who desire to fulfill the betrothal made by parents concerning the marriage of their daughters, or who ask that betrothal gifts, that is, those given in the name of arrhae, be returned to them with the quadruple penalty according to the decision of the laws. To be sure, we prohibit that marriages be sought by supplication from us which should fittingly be requested either from the permission of the parents or from the adult girls or women themselves. On the other hand, if a lawsuit should arise when a marriage which had previously been promised has (later) been refused, we do not prohibit that we be consulted according to law.Given at Ravenna on the tenth day before the Kalends of February133 in the eighth consulship of our lord Honorius and the third consulship of our lord Theodosius.134