The Classical World

by Robin Lane Fox

  The plebs in Rome, at bottom conservatives, might also welcome this sort of restoration: it clipped upper-class excesses and few of the new legal penalties would affect them personally. There was also a marked change in the upper classes. The Civil Wars had brought more men from outlying Italy into greater prominence at Rome, 'dim characters with fantastic names'6 whose youth had often been spent in narrow and priggish home towns. Italy was a varied place, but some of its townsmen might rally to a call of 'back to basics', like the residents of modern Idaho or Tunbridge Wells. A reassertion of ancient dignity would appeal to new men who were newly arrived in high places; it persuaded them, Catos and Ciceros at heart, that their new eminence was indeed as sound and traditional as they had expected. Augustus may even have started to believe in his own early rhetoric as Octavian. For he too was a man from 'little Italy', from a family of petty status which lacked the breadth and assurance of Rome's great families and their awareness that 'moral dignity' was so often the limited value of those who had not been told any better. He later wrote how he had brought back 'many examples of our ancestors which were disappearing from our age'.'

  The first major laws came in 18 bc, a year after Augustus' reception back in Italy and a year before he declared a symbolic 'new age' of his own. One target was childlessness among Roman citizens, a long-running item for social rhetoric. When addressing it, Augustus read to the Senate an ancient speech on the topic which had been delivered by the censor in 131 bc. The Civil Wars had claimed nearly twenty years' worth of Roman casualties, but there was probably a widespread feeling that Rome's legions should still be manned by Italian-born citizens only. The unmarried and the childless were now to be penalized by diminished rights to inherit property (the childless man had to surrender up to half of a legacy, although later versions of the law, perhaps as a concession, allowed him the right of free inheritance from close members of his family). Husbands with chil­dren were rewarded with the right to earlier tenure of a magistracy (one child sufficed here, including one killed in war), and various other privileges, including escape from the burdensome task of being a guardian of a child or a woman (three children were needed for this). Three children also exempted a woman from the need for her and her property to be under a guardian's control. Between couples, each child increased the capacity of a husband and wife to inherit from one another. If they were childless, they were limited to inheriting only one-tenth, and gifts between husband and wife were invalid (although a husband could buy something, for instance, and let the wife use it or regard it as acquired for her). There were also advantages for fertile freedmen and freedwomen who had recently received citi­zenship. Many of them were still liable to perform 'tasks' for the patrons who had freed them. Henceforward, two children, in most cases, would exempt them from these burdens. Freed persons who had several children could also exclude their patrons from a major menace, inheritance by the patron of their property on their death. This rule was most attractive to those freedmen who had gone on to make money and become rich.

  In ancient Sparta, fathers of three or more children were also said to have been rewarded, but nonetheless, the male Spartiate population had declined drastically. Why would the result at Rome be any differ­ent? In the upper classes, at least, girls were already married off by their fathers when young, sometimes as young as twelve to sixteen. An early age of females at marriage is a crucial determinant of the birthrate in a pre-industrial population, but Augustus' laws did noth­ing directly to change it. They did, however, keep down the marriage age for ambitious men: the sooner a man married, the quicker his career would now be. There was also a very intrusive change for women later in life. Widows or divorcees were penalized if they failed to remarry promptly, within an interval which was later extended by Augustus to two years. Many women had been widowed by the recent Civil Wars and were still young, so there was quite a constituency here to bring back to family life: even in peacetime, wives, who married young, would expect to survive their husbands (childbirth permitting). The penalties were radical. It was also proposed, initially, that unmarried men should be excluded from watching the games and the theatre, but the proposal proved too much for the public's tolerance.

  Only in families with property would most of the new privileges for fertility have had any relevance. There were, however, grave conse­quences to this insistence on big families. Knights had to own property above a fixed valuation, and, by new rules set by Augustus, so did senators. On a Roman father's death, properties were split between surviving children (there was no primogeniture), but if families were big, the property would be broken into smaller bits: those near the borderline would find their children pushed below its financial limit. Augustus' two ideals of a populous citizenry and well-defined social orders were contradictory. There was also a resentment among some of the better-off of the 'bore' (taedium) of bringing up brats, as we hear from the younger Pliny (c. ad loo), complaining about the habits of his Italian home townsmen.8

  It is understandable, then, that members of the order of the knights at Rome protested openly before Augustus when these laws were revised in ad 9. It was all very well for Augustus to reply by publicizing his own grandson's behaviour and displaying his two young grand­children on his lap: a prince of the imperial house was nowhere near the borderline of any social order. The display was only the latest of several of his publicity stunts in this sphere. When an old man from Faesulae (modern Fiesole, near Florence) was discovered to have sixty-one living descendants, he was brought down to Rome to make a religious sacrifice on the Capitol which was recorded in official records. The irony was that Augustus himself fathered only one daugh­ter and no sons at all. Publicizing fertility, he himself had none of the fertility of Pompey, let alone the teeming Mark Antony. As for Hadrian, he found his wife Sabina moody and difficult and so he remained childless. The laws would have penalized him, too.

  Did Roman citizens respond to Augustus' wishes by breeding faster? The recorded census figures at Rome do rise sharply after 28 bc, but the rise may only be a change in the numbers of citizens who registered, and the demographic meaning of these figures is still disputed. More obviously, there were so many obstacles and evasions to the laws, old and new. How can a law assure fertility? The important questions here are whether contraception of any effective sort was being used during marriage. Probably it was not: it was a slander that Hadrian's wife Sabina was said to boast 'that she had taken steps to make sure that she did not become pregnant by him: his children would harm the human race'.9 In its absence, there was scope for abortion, but again we do not know whether wives in a high property class often practised it. If they did, the Augustan laws might indeed make them hesitate. Among poor families, certainly, unwanted children were exposed, especially girls, the wombs of the future (they were more expensive for fathers as they needed dowries in order to be married off). No Augustan laws addressed these age-old obstacles to a big, surviving family among people with scarce resources.

  Very soon, there were to be some eloquent dodges too. Under the new laws, an engagement to marry was as effective as being married: men, therefore, were found to have betrothed themselves to baby girls whom they never intended to marry. As marriage could hasten or improve a man's career, some men married just before canvassing for a position and then unmarried as soon as they had received it. Restrictions on bequests were evaded by leaving goods 'on trust' for friends or relations to pass on to named recipients. Legal texts show Augustus upholding the validity of these 'trusts' in another context, apparently without realizing that they could also be used to outwit his laws against childlessness.10

  The moral virtue of Roman citizens was also an old chestnut: it was a value rooted in past history, one which Augustus would take for granted. Here, he addressed all citizen-classes. Later in his reign, in 2. bc and ad 4, he curbed excessive 'manumission' (freeing) of slaves and postponed full freedom for a slave until the age of thirty. He was not concerned here with a potential slave-shortage.
Tens of thousands of slaves had been taken recently during his army's wars in western Europe, with many more to come. More relevantly, some Roman slave-owners were said to be freeing slaves so that as citizens, they could claim the free corn-dole and live on it while still serving their masters as freedmen. Benefit fraud would certainly concern Augustus, but the main fear was that unworthy slaves were being given the cherished citizenship and that those who freed them were sometimes very young men, who were unable to tell good characters from bad. Once again, moral concern drove the reforms: these laws on 'quality control' persisted for the next five hundred years. Suggestively, the same year, ad 4/5, is the date of a ruling which defined the privileged citizen-class in some, perhaps all, of the towns of Egypt. Here, too, Augustus may have imposed a clearer category of 'respectable' citizenship.

  The conduct of existing citizens in Rome was also addressed. On festival days old-style processions were revived for the upper orders. Distinguished young men were encouraged to ride in complex forma­tions and to enact the 'old' game, revived by Julius Caesar and suppos­edly derived from Troy, Rome's parent city. Virgil's Aeneid obligingly traces this game back to Aeneas' funeral games for his dead father. Augustus celebrated this Troy Game 'very often', even in his new Forum, until falls and casualties obliged him to suspend it. He also revived the ancient yearly horse parade for those Roman knights who had the honour of a public horse. It was held on 15 July, but it too must have caused anxiety among men whose skills on horseback were now quite often minimal.

  There was also a stress on the moral improvement of the young. In Italian towns, Augustus encouraged local 'colleges' for young men in which they were to exercise, practise with weaponry and go hunting. At Rome, boys were not allowed out to watch games or shows by night without an adult attendant. In the city centre, Augustus is even said to have ordered all citizens to wear the woolly white toga. His own daughter and granddaughters were said to have been reintro­duced to the old arts of weaving and spinning. Augustus was proud of his own toga, woven in the ancient fashion. Society women were quick, however, to cut away their matronly stola, give it shoulder straps and wear it invitingly just above their bosoms.

  Senatorial families were particularly targeted. Sons of senators had to wear the special senatorial shoe and a patterned toga: they were expected, poor boys, to wear them to senatorial meetings where they now had to watch what dragged on, as future participants. They would be penalized, too, if they married unadvisedly. From 18 bc onwards senators, their sons, grandsons and great-grandsons were to be heavily penalized if they married freedwomen, actresses or actresses' children (the stage was an ignoble and promiscuous pro­fession). Their female descendants were to be penalized if they married a freedman. Roman laws had never penalized marriages in general between free citizens and freedmen. Nor did Augustus, though he showed his own social preference by refusing to have freedmen at his dinner table. What concerned him, rather, was his image as the upholder of senatorial dignity; hence he proposed these laws on sena­torial marriages, and the ban on inferior wives or husbands marrying into this class.

  However, there were ways round his obstacles. Instead of marrying, a senator could live with a freedwoman as his 'concubine', what we would call a partner. After the death of a first wife, such a 'concubine' was often preferable to the jealousies and insecurities of a second wife. Any citizen (not just a senator) was also to be penalized if he married somebody of 'ill-repute', a brothel-owner, pimp, actor or gladiator. Again, concubinage was the way round, with the advantage that gifts could be made validly to a concubine (but not to a wife) during a man's lifetime. But the option was not open to men who found themselves promoted to the Senate when already married: they were rare cases, but if they had married beneath themselves, they would have to div­orce and aim higher. Again, this element of quality control over newcomers may have been Augustus' main concern.

  The crowning law was a notorious law against adultery. Previously, adultery had been a private matter, to be settled by the husband or father within the Roman household. In 18 bc Augustus made it a public crime, which was to be tried in court. The scope of this law is still disputed, but much of the detail is clear enough. The most extreme case was nicely considered. If a father caught his daughter and her boyfriend in the act on family premises, he could legally kill his daughter on the spot. The threat was more rhetorical than realistic. Only if the father killed his daughter could he then kill the adulterer too ('adultery' is derived from the Latin 'to another person', ad alteram, not from 'adult behaviour'). Husbands' right to kill was even more restricted. If the husband caught the couple, he could not kill his wife. He could only kill her boyfriend if the offender was of ill-repute. But he could corner the bounder for up to twenty hours to extract proof of guilt from him: it could have been quite an interview.

  These extreme penalties were more hypothetical than an everyday reality. Much more importantly, the husband had to divorce his wife and prosecute her within sixty days if he had caught her in the act. Even so, without a head-on discovery, it might seem that couples could agree to live privately with their affairs and do nothing. However, a third party could prosecute within another four months if no action was being taken, and the husband could be prosecuted too. The danger here was that an outsider, an angry relation perhaps, would start up a prosecution of one or the other's lover and then try to extend it as if the 'crime' had been known all along and tolerated. Even slaves could be tortured to reveal intimate details. It was a particular danger because in some cases, husbands would have been condoning a wife's affair so that they could take money or favours off her boyfriend in return. That sort of connivance was now made criminal. So was the aiding and abetting of adultery by providing a room, for instance, for the impatient couple. Similar penalties applied to men who had sex with a single woman of respectable status.

  What was at stake here was not male fidelity. Like all ancient societies, Rome was highly stratified. If a man had sex with a slave-girl (or a slave-boy), a prostitute or a low-grade woman of infamy, he was not penalized at all. There was a 'double standard', one for men, and a stricter one for respectable women. Socially, this standard coexisted with a 'double classification': the lowest orders could still be pene­trated without reprisals. In this light, we can make sense of Horace's poetic presentation. His public poems are explicitly in favour of the curbs on adultery (the 'staining sacrilege'") and the promotion of big families. But he is also the Horace with a taste for party-girls and women with fine Greek names. The context, here, is that these women are slave-girls and mistresses in a demi-monde. By the double classifi­cation, they are irrelevant to matters of sound Roman family morality. Like Horace, Augustus himself had fancied a male sweetheart, evi­dently a boy of low servile status.12

  To modern liberal eyes, these laws are abominable. Husbands or wives convicted of adultery lost up to half their property (and part of the wife's dowry) and were banished to an island. An adulterous wife was forbidden to remarry and, in general, the rules against widows and lovers made women's lives even less at their own discretion. Yet they were not just Augustus' idiosyncrasy. In classical Athens, after all, a husband could kill an adulterer caught in the act or humiliate him with notorious punishments (pushing a radish, penis-shaped, up his backside was an Athenian reprisal long before Romans prescribed it). There was also scope in Athens for a third party to bring a prosecution for adultery: women found guilty were banned from participating in festivals and were liable to have their clothes ripped if they did so. We now execrate the Augustan laws, but we put the Athenians' laws down to civic cohesion or fears about illegitimate citizens. The difference is that we know how, previously at Rome, this 'offence' had not been a public crime at all and that the change was hated, flouted and betrayed by those supposed to uphold it. Among the Athenians, it was not controversial. Among Romans, there was at least a context for it in recent public discourse, the sort of moralizing sounded by Cicero. He had expounded that 'if the way of life
of the nobles is altered, then the customary behaviour of a state is changed'." In 44 bc his invective against Antony and Fulvia had publicized what sort of behaviour in households and marriages was totally unacceptable to all 'good men and true' and how it was a risk to the functioning of the community. Not everybody took this sort of rhetoric so seriously, but it had rested on ground which Augustus now occupied too.14

  Augustus' successor, Tiberius, had the restraint of a true Roman aristocrat: while retaining Augustus' laws, he tended to leave charges of adultery to be settled privately. In ad 19 it even emerged that a lady of good praetorian family, Vistilia, had registered herself as a prostitute in order to escape the laws altogether and continue to have her boyfriends with impunity: her aunt, by contrast, had dutifully married no less than six husbands in a row (probably, as each one died) and had given birth to seven children. Perhaps this Augustan good conduct made her niece so much more scandalous.15 In the jaundiced view of the historian Tacitus, the law was simply motivated by the financial gains which the Treasury would make from its penal­ties. It was, he reasoned, part of the increased oppression of the laws, an aspect which had intensified under the emperors. Reported trials for adultery are quite rare in Tacitus' histories, but the fact remains that the laws continued to be applied and clarified in connection with the ever-growing number of Roman citizens. In ad 190 more than 3,000 prosecutions for adultery were found to be pending in Rome.16 Legal texts confirm that Roman citizens in the provinces could be affected too.17

  Unlike Horace, the Augustan love-poets Propertius and Ovid rep­resent the other side to the 'crime'. They describe themselves as lovers of women who are married and not obviously from a shady demi­monde. Ovid's poems are more evasive, but give tips on how to pick up respectable women, while those of Propertius even dwell on the procuress, the depths of ill-repute."1 Ovid's witty poem, the Art of Love, appeared in a second edition, probably in i bc, and if so, at a most inopportune moment. In the previous year, at the summit of his achievements, Augustus, the new 'Father of the Fatherland', had to face the fact that his own daughter Julia was guilty of flagrant adultery. It did not help that she said memorably that she only did it when pregnant: 'I only invite another pilot when the ship is full."9 Those who go 'back to basics' are at risk to their own households: the discovery was followed by another, that Augustus' granddaughter was guilty of the same.