Introduction

It is obvious that, for a society to continue, it must produce children to carry it into the next generation. Where the birth rate drops below the level required to replace the adult population, this becomes a matter of public concern.^[636] In the classical period, in fact, the decline in birth rate was such, especially among the upper classes, that there was state intervention to encourage reproduction.

These factors point in the direction of giving legal recognition to a permanent relationship formed between parents or between people who are at least capable of becoming parents. A woman with a husband can expect to be supported by him, and we saw in Chapter 7^[638] that Roman law presumed him to be the father of her children. This is the primary function of marriage in Roman law. It is true that marriage had and still has other functions, such as companionship between the spouses, and so for example we see Justinian defining marriage as ‘the union of a man and a woman, committing them to joint habits of life'.^[639] The primary reason for recognising marriage as a legal institution, however, is the centrality of its role in reproduction.

This did not mean that the Romans did not engage in extra-marital relations. They did, of course. It is unlikely that there has ever been a society without such conduct. Where it is considered important to identify a child's father, however, that gives reason for there to be at least social disapproval for sexual relations outside marriage, if not legal penalties.^[640]

Social disapproval there certainly was of stuprum, as sexual activity other than between husband and wife was called,^{[641] [642] as well as legal penalties. The lex Iulia de adulteriis coercendis (the Julian law on suppressing adultery), passed under Augustus, established a special court for cases of stuprum. Within marriage, the lex Iulia de adulteriis coercendis also penalised wives who strayed (though not directly husbands who did the same, unless their conduct amounted to stuprum).[643] After all, a wife's adultery potentially led to her husband having to raise a child who was not his. A wife who committed adultery was criminally liable under this legislation. Her husband was under an obligation to prosecute her for this, and was obliged to divorce her as well. If he failed to do so, he himself risked being held liable for lenocinium (pimping).[644]}

The wife's lover did not necessarily get off scot-free. If the husband caught the wife and her lover in the act in his own house, he was permitted to kill the lover, as long as the lover was a pimp, had performed on stage, was a convicted criminal who had not yet been restored to his former status, was a freedman of either spouse or of a parent or child of either spouse, or was a slave.^[645] Unlike the wife's paterfamilias, who did have this right in certain circumstances,^[646] he was not permitted to kill her.

To this disapproval of sexual relations outside marriage there was a curious exception in the form of concubinage. A concubine is a woman with whom a man lives in a permanent or quasi-permanent relationship, as if married but without actually being married. There were certain points of similarity between concubinage and marriage. For example, at least in the post-classical period, a man could only have one wife or one concubine, not both or more than one of either.^[648] Again, intercourse between a man and his concubine did not count as stuprumf^[649] In the final analysis, however, concubinage was not marriage, and children of the union would not fall into their father's potestas. Only the children of a valid Roman marriage could have a paterfamilias and be subject to potestas. By later standards, however, it is noteworthy that there seems to have been little or no stigma against a man keeping a concubine, as long as she was of a lower social status than his.^[650] Indeed, concubinage could even be seen as preferable to marriage, even for the concubine. Ulpian presents the case of a freedwoman liv­ing as her patron's concubine. She leaves without his consent and seeks to marry another. This, he said, should not be permitted, ‘because it is more honourable for a freedwoman to be her patron's concubine than to be the mother of a family (matrem familias')’.^[651]

This chapter is concerned with marriage. There is a complication, however, in that the Romans recognised two forms of marriage, and which was chosen had a profound impact on the legal position of the spouses. Of these two forms, the more common one in earlier times was the marriage cum manu. The phrase cum manu is not easy to translate. Literally, it means ‘with the hand’, but the hand is metaphorical here. Manus, or ‘hand’,^[652] refers to the husband’s power over his wife, analogous to the potestas held by a paterfamilias over the descendants he has in his power. In effect, in the manus marriage, the wife became subject to the potestas of her husband (or of his paterfamilias, if he had one). Here this form of marriage is simply called ‘manus marriage’. The other form, the marriage sine manu or free marriage, by contrast had no such effect.^[653] By the classical period, the free mar­riage was the more common form. These two forms of marriage must, therefore, be considered separately. First, though, we shall look at some general issues in the formation of marriage, applying to both types.

B.