In 18 B.C., the Emperor Augustus turned his attention to social
problems at Rome. Extravagance and adultery were widespread. Among the upper
classes, marriage was increasingly infrequent and, many couples who did marry
failed to produce offspring. Augustus, who hoped thereby to elevate both the
morals and the numbers of the upper classes in Rome, and to increase the
population of native Italians in Italy, enacted laws to encourage marriage and
having children (lex Julia de maritandis ordinibus), including provisions
establishing adultery as a crime.
The law against adultery made the offence a crime punishable by exile
and confiscation of property. Fathers were permitted to kill daughters and
their partners in adultery. Husbands could kill the partners under certain
circumstances and were required to divorce adulterous wives. Augustus himself
was obliged to invoke the law against his own daughter, Julia, and relegated
her to the island of Pandateria. [15]
The Augustan social laws were badly received and were modified in A.D.
9 by the lex Papia Poppaea, named for the two bachelor consuls of that year.
The earlier and later laws are often referred to in juristic sources as the
lex Julia et Papia.
In part as a result of Christian opposition to such policies, the laws
were eventually nearly all repealed or fell into disuse under Constantine and
later emperors, including the emperor Justinian. Only the prohibitions
against intermarriage, as that between senators and actresses, remained.
The first three of the texts that follow do not come from the Roman
jurists but give background for the passing of the laws. The remaining texts
in this section are from legal works interpreting the provisions of this
legislation by a number of jurists. The juristic sources are also our best
source for the actual provisions of the laws.
120. Men must marry. Rome, 131 B.C. (fr. 6 Malcovati. L)
Speech of the censor Quintus Caecilius Metellus Macedonicus [16] about
the law requiring men to marry in order to produce children. According to
Livy (Per. 59), in 17 B.C. Augustus read out this speech, which seemed
"written for the hour", in the Senate in support of his own legislation
encouraging marriage and childbearing (see no. 121).
"If we could survive without a wife, citizens of Rome, all of us
would do without that nuisance; but since nature has so decreed that we
cannot manage comfortably with them, nor live in any way without them, [17]
we must plan for our lasting preservation rather than for our temporary
pleasure.
121. Prizes for marriage and having children. Rome, 1st cent. A.D. (Dio Cassius, History of Rome 54.16.1-1. Early 3rd cent. A.D. G)
[Augustus] assessed heavier taxes on unmarried men and women without
husbands, and by contrast offered awards for marriage and childbearing. And
since there were more males than females among the nobility, he permitted
anyone who wished (except for senators) to marry freedwomen, and decreed that
children of such marriages be legitimate.
122. Augustus' law. Rome, 18 B.C. (Suetonius, Life of Augustus 34. L)
He reformed the laws and completely overhauled some of them, such as
the sumptuary law, that on adultery and chastity, that on bribery, and
marriage of the various classes .
Having shown greater severity in the emendation of this last than the
others, as a result of the agitation of its opponents he was unable to get it
approved except by abolishing or mitigating part of the penalty, conceding a
three-year grace-period (before remarriage) and increasing the rewards (for
having children).
Nevertheless, when, during a public show the order of knights asked
him with insistence to revoke it, he summoned the children of Germanicus,
[18] holding some of them near him and setting others on their father's knee;
and in so doing he gave the demonstrators to understand through his
affectionate gestures and expressions that they should not object to
imitating that young man's example.
Moreover, when he found out that the law was being sidestepped through
engagements to young girls [19] and frequent divorces, he put a time limit
on engagement and clamped down on divorce.
123. The consequences of adultery (Paul, Opinions 2.26.1-8, 10-12, 14-17. L)
2.26
(1) In the second chapter of the lex Julia concerning adultery,
either an adoptive or a natural father is permitted to kill with his own
hands an adulterer caught in the act with his daughter in his own house or
in that of his son-in-law, no matter what his rank may be.
(2) If a son under paternal power, who is the father, should surprise
his daughter in the act of adultery, while it is inferred from the words of
the law that he cannot kill her, still, he ought to be permitted to do so.
(3) Again, it is provided in the fifth chapter of the lex Julia that
it is permitted to detain an adulterer who has been caught in the act for
twenty hours, calling neighbours to witness.
(4) A husband cannot kill anyone taken in adultery except persons who
are infamous, and those who sell their bodies for gain, as well as slaves.
His wife, however, is excepted, and he is forbidden to kill her.
(5) It has been decided that a husband who kills his wife when caught
with an adulterer should be punished more leniently, for the reason that he
committed the act through impatience caused by just suffering.
(6) After having killed the adulterer, the husband should at once
dismiss his wife, and publicly declare within the next three days with what
adulterer, and in what place he found his wife.
(7) A husband who surprises his wife in adultery can only kill the
adulterer when he catches him in his own house.
(8) It has been decided that a husband who does not at once dismiss
his wife whom he has taken in adultery can be prosecuted as a pimp.
(10) It should be noted that two adulterers can be accused at the same
time with the wife, but more than that number cannot be.
(11) It has been decided that adultery cannot be committed with women
who have charge of any business or shop. [20]
(12) Anyone who has sexual relations with a free male without his
consent shall be punished with death.
(14) It has been held that women convicted of adultery shall be
punished with the loss of half of their dowry and the third of their goods,
and by relegation to an island. The adulterer, however, shall be deprived of
half his property, and shall also be punished by relegation to an island;
provided the parties are exiled to different islands.
(15) It has been decided that the penalty for incest, which in case of
a man is deportation to an island, shall not be inflicted upon the woman;
that is to say when she has not been convicted under the lex Julia concerning
adultery.
(16) Sexual intercourse with female slaves, unless they are
deteriorated in value or an attempt is made against their mistress through
them, is not considered an injury.
(17) In a case of adultery a postponement cannot be granted.
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