B Paternal power and consent to marriage

Betrothal had always been an important part of elite Roman marriage arrangements. In clas­sical law, betrothal pacts were not legally actionable; either side could break off an engagement without penalty as long as he (or she) notified the other party that the engage­ment was off before making a pact with someone else.

law placed more importance on betrothal agreements. Breaking a betrothal became a serious matter, subject to possible financial penalties, the need for the consent of a woman's father to her marriage was stressed, and the exchange of pre-nuptial gifts and sureties between the betrothed couple was regulated [see Evans Grubbs 1995, 140—202].

A law of Constantine dated 332 set a sort of “statute of limitations” on betrothals. The original law was split into two by the compilers of the Theodosian Code 100 years later, but as both excerpts bear the same date and place of issue and both are addressed to the same offi­cial, it is clear that they originally belonged to the same law [cf. Cod. Theod. 8.17.2—3 in Part II.A]. One excerpt addresses the specific case of a woman betrothed to a soldier: if the man responsible for her marriage (father, other relative, or guardian) married her to someone else before the end of two years, he (the man responsible) was penalized by temporary exile (relegation). As it stands in the Theodosian Code, the law does not appear to have penalized broken engagements to those other than soldiers.³² On the other hand, any betrothal, including those with soldiers, that had lasted for more than two years without marriage taking place could be broken with impunity.

This legislation indicates that Constantine considered betrothal a more serious contract than had been the case in earlier imperial law.

Cod. Theod. 3.5.4 and 5, 12 April, 332

Emperor Constantine Augustus to Pacatianus, praetorian prefect:

(3.5.4) If a man who has made a contract with a girl for his own marriage should omit to accomplish the marriage within two years, and after the end of this time period has passed, the girl should later enter into a union with another man, she shall suffer no legal damage, because she did not allow her vows to be mocked any longer by delaying the marriage.

(3.5.5) It shall not be permitted for a girl’s father or tutor or curator or any relative of hers when he has previously betrothed her to a soldier, to hand her over to another in marriage. If (he does this) within two years (of betrothing her to the soldier), he shall be relegated to an island as one convicted of perfidy. But if he who betrothed her has joined her to another after a two-year period has elapsed since the (first) betrothal pact was made, it shall be considered the (soldier) fiance’s fault rather than the girl’s, nor shall the man who handed the girl over to another husband after the two- year period be at all liable.

Given at Marcianopolis on the day before the Ides of April in the consul­ship of Pacatianus and Hilarianus.³³

Classical law had required that the paterfamilias of each partner consent to their marriage, and indeed a woman's marriage would normally be arranged by her parents, particularly in the case of a teenage girl marrying for the first time [see Part I.C].

The following laws stress the importance of paternal consent for daughters under twenty- five, even those who had been emancipated from patria potestas. In classical law, an emancipated daughter would have been legally independent (sui iuris) and her father would have been her tutor legitimus. Legally, she would not have needed his consent to marry, but would have needed it in order to make a dowry for her husband [see Part I.C and Chapter 1, Part III.A]. Thus, though the late antique laws requiring paternal consent to marriage even for emancipated daughters under twenty-five do indeed impose a new restriction, in reality women in the earlier Empire whose fathers were still alive would have been unlikely to marry without paternal consent, even if they had been emancipated, at least for their first marriage.³⁴ The laws reflect the frequency of emancipation of adult children in late antiquity [Arjava 1998] and the increased significance of twenty-five as the age of majority [see Chapter 1, Part III.E]. As emancipation of grown children increased, the significance of emancipation in its classical sense (as a release from paternal power) decreased. The rule that a woman needed her father's consent to marry persisted, but now the view was that paternal consent was essential for all women below twenty-five, whether or not they were emanci­pated. On the other hand, women over twenty-five, even if still under patria potestas, may no longer have needed their father's permission to marry [Beaucamp 1990, 246—50].

Of course, given ancient mortality rates, many young woman of marriageable age (usually their late teens in this period; see Shaw 1987a) would not have a paterfamilias still living [Saller 1994]. By the later fourth century, tutela mulierum was basically obsolete, but all women and men under twenty-five whose fathers were dead were subject to a curator, who was responsible for overseeing their property and financial matters; girls below age twelve and boys below puberty would have a tutor impuberum rather than a curator [see Chapter 1, Part III.E].

It is likely that all three of these laws were prompted by particular situations where family conflicts over choice of marriage partner had become so intense that legal recourse was sought. Only elite families, where a great deal of money and property would be at stake, would have bothered to approach the emperor or a judge about such a matter. Indeed, the first law, of the western emperor Valentinian, is addressed to the Senate of Rome, and was probably prompted by a request from the Senate for guidance in a particular case.

Cod. Theod. 3.7.1, 16 July, 371

Emperors Valentinian, Valens, and Gratian Augusti to the Senate:

Widows less than twenty-five years old, even if they enjoy the freedom of emancipation, are not to enter upon a second marriage without their father’s agreement or in opposition to him. Therefore the go-betweens and marriage-brokers shall cease, the secret messengers and corrupt reporters of information! No one is to purchase noble marriages, no one is to cause a disturbance, but a marriage alliance is to be deliberated publicly, and a multitude of suitors is to be summoned.

(1) But if in the choice of alliance, the woman’s will opposes the opinion of her close relatives, it is certainly pleasing, as has been ordained in the marriage arrangements of women minors whose fathers are dead, that in weighing the issue the authority also of a judicial hearing be added, so that if suitors are equal in birth and morals, he shall be judged preferable whom the woman, deliberating with herself, shall have approved.

Given on the seventeenth day before the Kalends of August in the second consulship of Gratian Augustus and the consulship of Probus.³⁷

Cod. Just. 5.4.20, 408-409

Emperors Honorius and Theodosius (II) Augusti to Theodorus, praetorian prefect:

In the joining in marriage of daughters placed in the sacred rites,³⁸ the father's decision shall be awaited: if the girl should be legally independent and determined to be less than twenty-five years old, the consent of (the girl) herself is also to be ascertained. If she has been bereft of a father's aid, the judgment of her mother and kinsmen and also of the minor herself is to be inquired about. (I) But if, orphaned of both parents, she is placed under the protection of a curator and perhaps a contest between honorable competi­tors for marriage should arise, so that it is asked to whom above all the girl should be joined, if the girl because of concern for her sense of shame³⁹ has not wished to bring forth her own will, it shall be permitted for a judge in the presence of the kinsmen to determine to whom the young woman is better joined.⁴⁰

Cod. Theod. 3.5.12, 3 November, 422

Emperors Honorius and Theodosius (II) Augusti to Marinianus, praetorian prefect:

(After other matters) If a father has initiated a pact concerning his daughter's marriage and has not been able to fulfill his promises, having been destroyed by the lot of humans, that which will be shown to have been completed by the father shall remain firm and established between the betrothed couple, and nothing which will be shown to have been transacted with the protector⁴¹ who is concerned with what is advantageous to the minor (girl) is permitted to have any influence.

Given at Ravenna on the third day before the Nones of November in the consulship of our lords the Augusti Honorius for the thirteenth time and Theodosius for the tenth time.⁴³

According to the two laws of Honorius, young women were too modest to say how they feel, or too naive and inexperienced to know what was best for them. We do not know how often young women (emancipated or not) would go against their father’s wishes for their marriages, nor do we know of specific cases where a daughter preferred a different husband to that chosen by her father. We do hear, however, of women in late antiquity who refused to marry at all (or, more often, to remarry after widowhood), because they preferred a life of Christian celibacy [Clark 1979; 1981; Cloke 1995].⁴⁴

For instance, Macrina, of a wealthy Christian family in Cappadocia (Asia Minor) and the sister of Basil of Caesarea and Gregory of Nyssa, did not object when her father chose a husband (a relative) for her after she turned twelve years old. But when the young man died before the marriage took place, she refused another match. Her insistence that her betrothal amounted to an actual marriage and therefore that she could not remarry (since her spouse was still alive in God) has been taken as evidence of a more serious view of betrothal in late antiquity, but this case was probably exceptional [Evans Grubbs 1995, 172—3].

This passage is from Gregory of Nyssa's Life of his sister, written (in Greek) after her death in about 380. Macrina was born about 327, so the events recorded here would have taken place about 340.⁴⁵

Gregory of Nyssa, Life of Macrina 5

The girl was not ignorant of what had seemed best to her father. But when what had been decided upon for her was broken off by the young man's death, calling her father's decision a marriage — as if what had been decided had (actually) happened — she resolved to remain on her own from then on, and her decision was more steadfast than her age. For often when her parents introduced conversations about marriage to her, because there were many who wanted to be her suitors on account of the fame of her beauty, she would say that it was strange and unlawful not to be content with the marriage confirmed for her by her father once and for all, but even to force her to look to another, when there is one marriage in nature just as there is one birth and one death. For she declared confidently that the man united (with her) according to her parents' decision was not dead, but that she decided that he, who was “living with God” on account of the hope of the resurrection, was out of town and not dead, and that it was strange for her not to keep faith with her bridegroom who was away from home. With such words rejecting those who were trying to persuade her, she thought that one thing would be a safeguard of her good decision, never to separate from her own mother not even for a little bit of time [the rest of the passage is omitted here]...

Macrina lived in domestic monasticism with her mother and other female relatives for more than thirty years. She was fortunate to have family support (including financial) for her decision not to marry. Cappadocia and Pontus (in north-central Turkey), where Macrina lived, had long been predominantly Christian. In general, the Greek eastern half of the Empire became “Christianized” earlier than the west, where there was more family opposition to young women refusing marriage. Families were reluctant to forgo the possibility of heirs to family estates, especially among the senatorial aristocracy.

In his work On Virgins (de Virginibusf written about 377 C.E., Ambrose, the Christian bishop of Milan, a former imperial official (he had been governor of Liguria in Italy before being made bishop) and member of the senatorial elite, urged young women who wished to preserve their virginity to defy pressure from relatives to marry. Note, however, that he is speaking of women whose fathers are dead and who therefore have some say in their future — not even a powerful bishop would encourage rebellion from the paterfamilias. Ambrose closes with a cautionary tale to show relatives who try to thwart a young woman's vocation of virginity what the cost of their opposition may be.⁴⁶

Ambrose, On Virgins (de Virginibus) I.10—11

1.10    (58):... For I have learned that many virgins wish (to remain such), and are forbidden by their mothers, and what is more serious, by widows, with whom my talk is now concerned. For to be sure, if your daughters wanted to marry a man, they would be able by law to choose whom they wished. Therefore are those who are permitted to choose a man not permitted to choose God?

1.11    (62): Indeed (it is) good if the zeal of her relatives⁴⁷ breathes breezes of modesty, as it were, on a virgin. But it is more glorious, if the fire of her tender age should hasten itself of its own will even without the nourishment of the old. Relatives will deny a dowry, but you have a rich spouse (and) content with his treasure, you shall not seek the profits of a paternal inheri­tance. By how much does chaste poverty surpass dotal gains!

I.11    (65): In our memory a girl formerly noble in the world, now more noble in God, when she was being urged to marriage by her relatives and kinsmen, fled to the holy altar.. (the girl addresses her relatives): “What is distressing you, kinsmen? Why do you worry your mind with still seeking a marriage? Now already I have one prepared. Are you offering a spouse? I have found a better one. Exaggerate (suitors’) wealth as much as you like, boast of their nobility, proclaim their power: I have him with whom no one can compare himself — rich in the world, powerful in rule, noble in heaven. If you have such a one, I do not refuse your choice. But if you do not find (such a one), you are not providing for me, relatives, but you are begrudging me. (66) The rest were silent, but one (spoke) too hastily: “What if your father were alive,” he said, “would he allow you to remain unmarried?” Then she (replied), with rather great devoutness, but a somewhat more moderate sense of family duty: “And indeed perhaps he died so that no one would be able to present an impediment.” But he⁴⁸ showed by his own premature death that her response about her father (was) an oracle about himself. And so the others, who were seeking to prevent her, began to be favorable, each fearing the same thing for themselves. Nor did her virginity bring her the loss of the property owed her, but even the profit of her chastity. You have, girls, the reward of devotion — relatives, beware the example of opposition.

Gregory and Ambrose provide anecdotal evidence of young women resisting the pressure of relatives to marry — in order to maintain their virginity. Christian teachings emphasizing the superiority of sexual celibacy could be used by some women to subvert the traditional soci­etal expectations of marriage and childbearing, even in the face of family opposition [Clark 1979; 1981; Cloke 1995]. But once the possibility of remaining unmarried and embracing a life of Christian celibacy was established and endorsed by church leaders, some parents tried to make their daughters remain virgins, perhaps from true religious motivations, perhaps in order to avoid paying a dowry. We hear of this abuse of the option offered to women by Christian asceticism already in the third quarter of the fourth century, in the writings of Basil, bishop of Casesarea in central Asia Minor [Basil, Epistle 199-18}· And by the mid-fifth century, the problem of parents forcing their daughters into a life of holy virginity was real enough to attract the attention of the short-reigned (457—461) western emperor Majorian.

Majorian attacked what he saw as abusive marriage strategies on the part of Roman fami­lies in a long law dealing with various issues involving marriage, remarriage, and Christian celibate women [see Part II.C and Chapter 5, Part I.B for other excerpts from this law}. Majorian had two concerns about the practice of families forcing daughters to take the veil: he felt that the fecundity of young women was needed to help the Roman state (which was rapidly disintegrating in the west⁴⁹); and he feared that rather than restraining young women's sexual urges, enforced celibacy would push them into undesirable and illegal unions.

Novel 6 (preface) of Majorian, 26 October, 458

Emperors Leo and Majorian Augusti to Basilius, praetorian prefect:

Having taken up the rudder of imperial rule, we ought to think about how our republic is to be preserved and to advance, in arms, in laws and in the wholesome reverence of religion. It will most greatly benefit under this improvement: if the desirable good stock of noble women grows, increased by the procreation of children, if the dutiful bonds of kinship between parents and children are not changed by any vicious plots, and an unwilling mind does not undertake the true veneration of God.... For who would bear that parents, by these plans to condemn rather than to consecrate, should consign their daughters — whom they hate — to the constraint of perpetual virginity when they are still minors? And that, lest their youthful minds have the freedom to wish for something else, they place the sacred veil upon the heads of unwilling girls, when observance of this kind, taking up philos­ophy with a pious mind, is undertaken not by the command of one who forces, but by willing and mature deliberation? For indeed, the allurements of human desire, towards which the ardor of young age is particularly impelled, must be avoided and overcome with great attentions, so that, after the heat of youth has been calmed, virginity dedicated to God shall deserve to arrive at old age and the palm of celestial service without any defect of penitence. For what good does it do if virginal desire, repressed by paternal power, conceives deep within a deceitful desire for marriage and, having been restrained from legitimate union, it is drawn to illicit allurements?

Majorian's solution [Novel 6.1—3} was to forbid the consecration of Christian virgins until they had reached the age of forty, by which time they would be safely past the ardor of youthful desire.⁵⁰ Majorian added that if a woman had been prevented from marrying and forced to remain a virgin, she could, upon the death of her parents, marry (if she was still under forty) and inherit an equal share with her siblings, even if her parents had disinherited her: “Seeing that she must be thought worthy of such a reward and of succession (to her parents), since, having undertaken the procreation of children, she is striving to rescue the noble stock of her family from annihilation” [Novel 6.3}.