C Other prohibitions

Several other types of unions were not considered valid marriage under Roman law, and in some cases were subject to penalty.

1 Unions citizens and non-citizens

Before 212, another important status distinction was between Roman citizens and non­citizens.

Rules of Ulpian 5.4: Roman citizens have the right of marriage with Roman citizens; moreover, (they have the right of marriage) even with pere­grines, if it has been allowed.

Gaius, Institutes I.56: Moreover, Roman citizens are understood to have contracted legitimate marriage and to have children born from it in their power, if they have married Roman citizen women or Latin or peregrine women with whom they have the right of marriage. For it happens that, because the right of marriage results in children following their father's status, not only do they (the children) become Roman citizens, but they are also in their father's power. 57: Therefore imperial constitutions customarily grant also to certain veterans the right of marriage with those Latin or pere­grine women whom they have first taken as wives after their release from service.

Rules of Ulpian 5.8: If there is the right of marriage between (the couple), the children always follow the father (i.e., have their father's status). If there is no right of marriage, they enter upon their mother's status. The exception is that a child who is born from a peregrine man and a Roman citizen woman is a peregrine, since the Minician law orders that one born from either a father or mother peregrine follows the status of the parent whose status is lower.³² 9: From a Roman citizen male and a Latin woman, a Latin is born, and from a free man and a slave woman, a slave is born, since, because there is no right of marriage in these cases, the offspring follow their mother (i.e., have her status).

In unions between partners of different citizen status who did not have conubium, as in other unions which Roman law did not consider legitimate marriage (e.g., between free people and slaves), any children born took the status of their mother, not their father as in legitimate marriage. Consequently, such children would not fall under their father’s potestas.

From the extensive discussion Gaius devotes to it, it appears that ignorance of citizen identity was quite common, and (mainly in the provinces) Roman citizens might unwittingly marry a non-citizen. Unless the partners had conubium, the children of such unions would not be Roman citizens or fall under their father’s potestas (since patria potestas was a feature of Roman marriage only). It was so possible to make a mistake in determining one’s citizenship or the citizenship of one’s spouse that the Roman Senate passed legislation on the matter:³³

Gaius, Institutes I.67: If a Roman citizen man has married a Latin or pere­grine wife through ignorance, because he believed that she was a Roman citizen, and has begotten a son, this (son) is not in his power, because he is not even a Roman citizen, but either a Latin or peregrine.

Other marriage prohibitions arose because the social relationship between partners might have enabled the husband to have undue power over his wife or her property.

2    Marriage between tutor and pupilla

A law banning marriage between a fatherless minor girl (pupilla) and her guardian (tutor or curator) or his son was enacted during the joint reign of Marcus Aurelius and his son Commodus (177—180). Exception was made only if the girl’s father had explicitly stated before his death that he wanted the marriage. The reason for the ban was to prevent a conflict of interest: “so that female wards not be defrauded of their family property by those who are compelled to render acounts of the guardianship to them, after the guardianship has ended” [D.23.2.64.1, Callistratus below].

D.23.1.15 (Modestinus): A tutor is not able to marry his pupilla himself nor to join her to his son in marriage. You should know, moreover, that what we discuss in regard to marriage pertains also to betrothal.

D.23.2.66 (Paulus): It is not (legal) marriage, if a tutor or curator marries his own pupilla or marries her to his son before she has turned twenty-six, if she was not betrothed (to him) by her father or intended (for him) by (the father's) will. If this is done, each party suffers legal infamy and is subject to legal penalty, according to the rank of the pupilla.

D.30.128 (Marcian): If a tutor has married his pupilla contrary to the decree of the Senate, she indeed is able to take under his will, but he himself is not able to (take under her will). And deservedly so: for they do wrong, who contract prohibited marriages and they should be punished deservedly. But fault is not able to be imputed to the woman, who was deceived by her tutor. D.23.2.59 (Paulus): A grandson is understood also in the decree of the Senate, which forbids a tutor to marry his pupilla or to place her in marriage to his son.

D.23.2.64 (Callistratus): The Senate decided that a freedman, who was likewise the tutor of a pupilla, should be relegated (exiled without loss of citi­zenship or property), because she was given in marriage to the tutor himself or with his son.

3    Marriage between imperial officials and locals

Roman government officials or military officials were also prohibited from marrying women in the province in which they served:

D.23.2.38 (Paulus): If anyone administers an office in a province, he is not able to marry a woman who originated or is living there.

In both this case and the ban on tutor—pupilla marriage, the prohibition was based on the possibility that the guardian or the provincial official, being in a position of authority and responsibility over the person or the property of the pupilla or provincial respectively, would abuse his power:

D.23.2.63 (Papinian): The prefect of a cohort or the prefect of cavalry or a tribune has married a wife of that province in which he carried out his office, contrary to the prohibition: it will not be (legal) marriage. This case should be compared to that of a female ward, since the concern for (his) power (over her) has forbidden it. But it is debatable whether, if indeed the maiden has married him, what was left to her by will should not be taken away from her. However, by the example of a ward married to her tutor, the woman is able to obtain what has been left to her. However, it is necessary that the money given as dowry be returned to the woman's heir.

D.34.9.2.1 (Marcian): Likewise if anyone has, against his orders, married a woman from the province in which he carries out some office, the deified (Septimius) Severus and Antoninus (Caracalla) wrote in a rescript that he is not able to keep what he acquired from his wife's will, just as if a tutor had led his pupilla (as wife) into his own home contrary to the decree of that most magnificent order (the Senate).

Relationships between Roman officials and women in the provinces in which they were serving were not totally prohibited, only legal marriage [on concubines, see Part II.B.5]:

D.25.7.5 (Paulus): A man can have a concubine in the province in which he holds an administrative position.

Moreover, the relationship could become legitimate marriage later, as we see in this rescript (response) from the emperor Gordian to a petition from a woman Valeria, who was perhaps concerned about the status of her own marriage and offspring. The ruling of Paulus (the jurist) to which Gordian refers is found at D.23.2.65.1.

Cod. Just. 5.4.6, 20 August, 239

Emperor Gordian Augustus to Valeria:

Though marriage was contracted in the province with the woman's consent against the mandates of former emperors, however, after the office has been laid down, if she still persists in the same desire (to be married), the marriage will become legally valid. And therefore, the response of that most sagacious man Paulus declares that children born and brought up afterwards from legal marriage (iustum matrimonium} are legitimate. The twelth day before the Kalends of September in the consulship of Gordian Augustus and Aviola.

4    Marriage of soldiers while in service

Another rule, apparently made by Augustus,³⁵ forbade soldiers to be married while in service (high-ranking officers could marry, as long as their wives were not provincials; see I.C.3 above). This applied both to those in the legions, who already had Roman citizenship before enlisting, and to the auxiliaries, who comprised non-citizens (peregrines). Soldiers might form liaisons with women in the provinces where they were serving, but these were not legal marriages and their children were not legitimate [Gardner 1986a, 33—5; Youtie 1975]. Once the soldier had completed his term of service, the woman he was living with could become his legal wife, and children born after that time would come under his power (see below). But if he died while still a soldier, any dowry that the woman had given to him could not be reclaimed, and children born during that time were illegitimate and could not inherit from him on intestacy. We know from the records of court cases in Egypt that this could cause great hardship and distress for both the soldiers and their families [Anagnostou-Canas 1984, 343-5; Youtie 1975; see Campbell 1994, 154-6 for translation of M.Chr. 372].

Hadrian (reigned 117-138) ameliorated the situation somewhat for the illegitimate chil­dren by enabling them to inherit from their fathers by intestate succession as cognates (though any legitimate children that the father might have would have precedence), and by the time of Marcus Aurelius (161-180), a soldier could name his illegitimate children and their mother as heirs in his will [Campbell 1994, 157-8]. However, it seems that it was not until the reign of Septimius Severus (193-211) that soldiers were allowed to be married while still in service [Campbell 1978].³⁶

Upon completion of his term of service (twenty years for legionaries, twenty-five years for auxiliaries), a soldier received certain privileges, including Roman citizenship (for non­citizens), the right of marriage (conubium) with the woman with whom he had been living in a non-legal union, and citizenship for his partner and children by her. Children born before his discharge evidently received citizenship, but apparently did not come under their father’s potestas, whereas those children born after the union became legal did [Campbell 1984,

439-45; cf. Dixon 1992, 55-8]. Under Antoninus Pius (reigned 138-161), this benefit was partly rescinded in the case of auxiliaries: though they continued to receive citizenship and conubium with the woman of their choice, and citizenship for their children born after discharge, any children they had had in a non-legal union while still in service did not receive citizenship [Campbell 1984, 444].

Gaius, Institutes I.57: Whence also to certain veterans imperial constitu­tions customarily concede the right of marriage (conubium) with those Latin or peregrine women whom they first took as wives after their discharge. And those who are born from this marriage become both Roman citizens and under the power of their parents.³⁷

Auxiliaries, sailors, and members of the prestigious Praetorian Guard and the Urban Cohorts received certificates of discharge recounting these privileges, and many of these certificates, called diplomata from the fact that they were in the form of two sheets of bronze fastened together to make a diptych, have survived. Legionaries generally did not receive diplomata upon leaving the army, but probably did receive the privileges of conubium and citi­zenship for their partners and children. In 140, the privilege of citizenship for the non-citizen partner and children born during service was abolished for auxiliaries, though not for legionaries [Campbell 1984, 439-45; 1994, 193-202; Wells 1997].

This diploma is from the first sheet of a bronze diptych found in the Roman province of Moesia Superior, now in the Belgrade museum. The names of seven witnesses would have been written on the second sheet of the diploma, which is not extant.³⁸

ILS 9055, 29 June, 120

Emperor Caesar Trajan Hadrian Augustus, son of the deified Trajan Parthicus, grandson of the deified Nerva, chief priest (pontifex maximus), in the fourth year of his tribunician power, consul for the third time, gave to the infantry whose names are written below, who served in the cohort first Flavian Bessians, which is in Macedonia under Octavius Antoninus, who have been released with an honorable discharge after completing twenty-five years of service: citizenship to them, their children and their descendants, and the right of marriage (conubium) with the wives which they had at the time when they were given citizenship; or, if any of them were unmarried, (the right of marriage) with those whom they married afterwards, as long as each man has only one wife.³⁹ On the third day before the Kalends of July in the consulship of C. Publicius Marcellus and L. Rutilius Propinquus.

Of the cohort first Flavian Bessians, of which A. Aelius Sollemnianus is in command, from the infantry: to M. Antonius Timus, son of Timus, of Hierapolis, and to his wife Tioroturma daughter of Dotochas of Tricornum (?), and to his son Secundus, and to his daughter Marcellina.

Recorded and authenticated from the bronze tablet which has been affixed at Rome on the wall behind the temple of the deified Augustus at (the statue of?)⁴⁰ Minerva.

5    Marriage to two women simultaneously

Finally, it should be said that it was impossible in Roman law for a man to have a marital relationship with two women at the same time, without divorcing one woman to marry another [Gardner 1986a, 91—3]:

Cod. Just. 5.5.2, 11 December, 285

Emperors Diocletian and Maximian Augusti to Sebastiana:

It is allowed to no one who is under Roman authority to be able to have two wives openly, since even in the Praetor's Edict men of this sort have been branded with legal infamy (infamia). The appropriate judge will not allow this matter to go unpunished. Posted on the third day before the Ides of December in the consulship of the Augustus Diocletian for the second time and of Aristobulus.

Sebastiana may have been one of the “wives” of a bigamous man, who was concerned about the status of her marriage. Another woman, Theodora, wrote to the emperors Valerian and Gallienus after discovering that she had “married” a man who already had a wife. She feared that she might be liable for adultery charges and wondered whether she could still claim the betrothal gifts he had promised her. The emperors’ rather lengthy reply was divided in two by the compilers of the Code of Justinian:

Cod. Just. 9.9.18, 15 May, 258

Emperors Valerian and Gallienus Augusti and the Caesar to Theodora:

Without a doubt legal infamy attends the man who had two wives at the same time, for in this matter it is not the effect of the law — since our citi­zens are forbidden to contract multiple marriages — but the intention that is considered. (1) Moreover, the accusation of stuprum also will be formally brought by a legally authorized accuser against the man who asked for your hand in marriage, pretending that he was unmarried, when he had left another materfamilias in the province. But you are free from this charge, because you believed that you were a wife. (2) Certainly you will request from the governor of the province that all your possessions, which you lament were taken by him under the pretense of marriage, be restored to you by immediate requisition. But those things, which he promised he would give you as his fiancee, how can you effectively reclaim them as if you were (legally) a fiancee? Received at Antioch on the Ides of May in the consulship of Tuscus and Bassus.

Cod. Just. 5.3.5 (address omitted): You cannot effectively reclaim those things which the man who asked for your hand in marriage promised he would give you as his fiancee, pretending that he was unmarried when he had left another materfamilias at home, since you were not a fiancee because he had a wife established at home. (date omitted)

As a bigamist, the man who “married” Theodora will suffer infamia, which would entail certain legal disabilities such as not being able to represent others in court [Gardner 1993, 110—18]. More seriously, he could be prosecuted for stuprum, illicit sex with a respectable woman, which carried severe criminal penalties under the Augustan adultery law [see Chapter 2, Part I.B]. Theodora, as she had considered herself a married woman, was not liable for stuprum, and could reclaim what she had given her spurious husband, but could not claim any betrothal gifts promised (though evidently not already given) to her.

The other “wife” of Theodora’s “husband” is described as a materfamilias [see Chapter 1, Part I.B], indicating that, like Theodora, she was a respectable woman and his relationship with her could therefore be construed as marriage. The man had been able to deceive Theodora into marrying him because his first wife was back in his home province, and there would be no easy way for Theodora to check on his past. One wonders how she had eventually learned of the other wife’s existence.

In 393, the emperor Theodosius explicitly prohibited polygamy, in the context of a ban on “Jewish” marriage customs [see Part II.D].

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