Posted by: ken98 | August 30, 2011

Roman Family Law – Fathers and Sons, Wives, Divorce, Concubines, Bastards – In Short The Battle of the Sexes

Day 716 – Ken here (T)(8-30-2011)
(DEF II, v.4 Ch.44 pp.810-820)(pages read: 1870)

We continue with Gibbon’s Illustrated Review of Roman Civil Law, with Generous, Gratifying Asides Adroitly Comparing Ancient Roman Society to the Current State of Affairs. In other words, if the Decline and Fall had been a blog in the 1780’s, or better yet, a late-night talk show, this would have been one of Gibbon’s comedic monologue on the topic of the day – in this case, the Institutes (the great textbook, along with the monster CODE and DIGESTS) of Roman Law Justinian published in the 530’s.

Of the four parts of the Institutes (of Persons, of Things, of Actions, of Civil/Criminal Law) we are still in the first part – Persons – and today we deal with Fathers and Sons, Husbands and Wives, Mistresses, Incest, and Bastards – with strong hints of the predictable misogynistic, pro-male stance you would expect from an Eighteenth Century English Gentleman.

So… onto Family Law in the 530’s (as seen through the lens of the 1780’s)…

The Story
Law – Institues – 1) Persons – Fathers and Sons (Cont)
  • Absolute auth of father in earliest Antiquity – he could sell his sons into slavery
  • Father is also the abs judge over family – could kill them if he wanted
  • gradually fathers lost this power of life/death, eventually (under Christian emperors) could not expose children – ie, killing a son becomes murder, exposing an infant (per Lawyer Paul) becomes murder

    Law – Institues – 1) Persons – Husbands and Wives
  • Ancient religious rites of marriage – not marriage so much as woman’s entry into the religion of the pater familias – father of the family she was marrying into – and losing her own family – she (like the sons/daughters/sisters/bros) became property of pater familias – to DIVORCE, you had to SELL THE WOMAN as a slave – just as emancipation of a son required “selling” him as a slave – to remove him from the father’s religion
  • In later Republic, in order to avoid becoming the husband’s property, the religious rite (confarreatio – sharing the sacred meal) was avoided – a simple marriage contract (something like a pre-nuptial contract) was all that tied the man and woman together
  • Law – Institues – 1) Persons – Divorce
  • Divorce under the new marriage-by-contract was easy – initiated by either party – it was only a contract after all
  • Gibbon becomes truculent describing divorce – “the most tender of human connections degraded to a transient society of profit or pleasure”
  • Under Christian Rome, Divorce was alternately allowed and restricted, finally after Justinian, the civil form prevailed and divorce was allowed

    Law – Institues – 1) Persons – Mistresses, Illegitimate Children, Incest
  • Incest – not the first degree, but the next allowed – ie cousins, etc
  • Concubines – mistresses – the “secondary marriage” through the 900’s allowed civilly, but not through the church
  • Legitimate offspring=from marriage, “Natural” offspring=through concubine
  • Wards and Guardians – men before puberty had a ward (or tutor), under 25 a guardian, women had guardians their whole life as they were presumed never to attain their majority civilly – although they could marry at 12
  • nbsp;


    A Somewhat Contemporaneous View of Gentle English Marriage

    A Somewhat Contemporaneous View of Gentle English Marriage (40 years before Gibbon's Vol 4) - a worn-out, young member of the gentry is getting firsthand a taste of what a close relationship with the opposite sex entails - very much a Gibbon-esque view of marriage - Hogarth's Marriage A La Mode (1745), Plate II From the British Museum - I'm sorry I just can't resist Hogarth - I can't stop looking at the young wife, looking intelligently out of the side of her eyes as she flings her arms about in apparent angry hysterical abandon - or just an extended yawn - the husband doesn't stand a chance...


    Divorce and Women in Ancient Rome and Enlightenment England

    As much as Gibbon favors the Idea of Mistresses (see below), he (as an unmarried man of course) is rabid about the deleterious affects of divorce. No way. No how.

    He notes with concern the absolute dominion (as a piece of property) that a husband had over his wife originally in Roman Law – this, an artifact, of marriage being entirely a matter of religion (that is, the household gods were always worshiped by the male issue, and only males were ever priests, so only male priests were really people – thus, logically, wives, and sons (and daughters, and brothers and sisters of the eldest son) did not exist as people and were things – ie a type of property).

    To get around this, in the Late Republic, women avoided getting “married” in a religious sense (that is, became the property of their husbands by getting married religiously), but entered into a contract – a civil matter, like contracting to start a partnership – and so remained, technically and religiously in the family of their own fathers.

    Roman, Christian marriage was a mixture of both traditions (Roman Law and the Gospels) – Gibbon freely mixes Late Republican attitudes (i.e. the last century BC) with the Code as it was taught in Justinian’s Institutes (from the 500’s) and concludes that Divorce Is A Bad Thing.

    Gibbon mildly applauds the fact that at some point, either a man or a woman under Roman Law could initiate divorce – it was after all only a civil contract between two individuals. Despite the fact that strict religious marriage involved a woman giving up everything (property, name, family) to become a piece of property, and that later civil marriage still left a divorced woman possibly defenseless and alone, Gibbon still assumes that (since men in Augustus’s time were reluctant to marry) marriage was mysteriously still disadvantageous to males. As Steinbeck would maintain – marriage and setting up house was a trap women made for men – for Gibbon, wriggling out of it was virtue for a man, gross negligence for a woman.

    In the footnote, (which is always juicier, and generally in Latin or Greek of its worth reading) Gibbon mentions Jerome’s story of the “triumphant” man who buried his 21st wife, she (the wife) having already buried 22 of her past husbands. In the Late Antique War of the Sexes, Gibbon applauds the HEROIC EFFORTS of one man to outlast and out-marry the opposite sex. Again, coming from a man for whom marriage was entirely a theoretical state experienced third-hand or studied in literature, he is (in his eyes) here “manfully” holding up “his end” of the centuries-old battle between men (who want freedom with/from females, or effective control over females, or at least the last word in a male-female argument) and women (who are apparently properly and profitably directed in life for one aim – the raising of a man’s heirs).

    Divorce Destroys All Human Confidence, Makes Women Unchaste

    The causes of the dissolution of matrimony have varied among the Romans; but the most solemn sacrament, the confarreation (religious marriage-KEN) itself, might always be done away by rites of a contrary tendency. In the first ages, the father of a family might sell his children, and his wife was reckoned in the number of his children: the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce.

    The warmest applause has been lavished on the virtue of the Romans, who abstained from the exercise of this tempting privilege above five hundred years: but the same fact evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to relinquish his slave.

    When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates.

    In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse. Passion, interest, or caprice, suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation.

    The most tender of human connections was degraded to a transient society of profit or pleasure. According to the various conditions of life, both sexes alternately felt the disgrace and injury: an inconstant spouse transferred her wealth to a new family, abandoning a numerous, perhaps a spurious, progeny to the paternal authority and care of her late husband.

    A beautiful virgin might be dismissed to the world, old, indigent, and friendless; but the reluctance of the Romans, when they were pressed to marriage by Augustus, sufficiently marks, that the prevailing institutions were least favorable to the males.

    A specious theory is confuted by this free and perfect experiment, which demonstrates, that the liberty of divorce does not contribute to happiness and virtue. The facility of separation would destroy all mutual confidence, and inflame every trifling dispute: the minute difference between a husband and a stranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can submit to the embraces of eight husbands, must cease to reverence the chastity of her own person. (125)

    FOOTNOTE 125

    __Sic fiunt octo mariti Quinque per autumnos.
    Juvenal, Satir. vi. 20.
    A rapid succession, which may yet be credible, as well as the non consulum numero, sed maritorum annos suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of his less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But the ten husbands in a month of the poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)

    (DEF II, Vol.4, Ch.44, pp.814-815 and footnote 125)


    Last Word…


    A Picture of What Domestic Comfort Looks Like

    A Picture of What Domestic Comfort Looks Like According to Gibbon - a Modern painting of the Chinese concubine Yang Guifei - known as one of the Four Beauties of ancient China and a consort of Emperor Xuanzong of Tang

    Gibbon’s Appeal to Reason – Why Men Should Have Mistresses

    Not only in quasi-post-communist China is the idea of a mistress or concubine a hot topic – it was something especially dear to the heart of Gibbon apparently. Although its difficult to see whether he was writing from warm, personal conviction on the indisputable MERIT of the idea, or whether possibly, he hoped to increase the number of subscriptions to his soon-to-be-released volumes of his Decline and Fall by including a short paean to extra-marital relations buried innocently in a witty review of Roman Law.

    Its all the more endearing to me in a way (although Gibbon would’ve scorned pity), since at this time (late 1780’s, early 1790’s), because of the progress of the disease which eventually killed him, he was very likely (and unfortunately) at this time a walking sack of incontinence (see Jellinek, Journal of Royal Society of Medicine, July 1999), and his days of romantic dalliance were far, far behind him – people could barely stand to be in the same room with him. Gibbon was nothing if not brave, and so rhetoric of this kind has to be admired.

    Of Bastards and Mistresses
    The Comforts of Domestic Love (Who Could Argue With That?)

    A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron.

    In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love: the example was imitated by many citizens impatient of celibacy, but regardful of their families.

    If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose faithfulness and fidelity they had already tried.

    By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled only to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state.

    (DEF II, Vol.4, Ch.44, p.819)

    Pursued by royalty, and even the most philosophical of emperors (the Antonines), what evil could be impugned to such a venerable institution? Obviously the English ought to follow in the worthy footsteps of the Ancient Romans (which they did, with, or without the assistance of Gibbon’s arguments).

    Its interesting that “natural” children from a “concubine” are so strongly contrasted with children issuing from an “adulterous” relationship – adultery in this case would most likely be a WOMAN (wife) having an affair with a MAN.

    The numerous references to “fidelity”, “second marriage”, “celibacy” make the taking of mistresses and concubinage almost sound more moral than marriage (kind of like a reasonable test-run of marriage, probing the marital waters so to speak without all the legal/religious messiness of the actual act), and it was definitely more pleasurable and comfortable (than enduring feminine “pomp and insolence” in a wife). That the comfort and convenience were all on the man’s side, and none on the concubine’s and children’s side are not facts worthy of note to Gibbon. But this IS Late Eighteenth Century England, and Gibbon IS writing for his peers – the gentry subscribing to his multi-volume work.

    You have to hand it to (unmarried) Gibbon – making a 6th century textbook of law salacious and interesting reading for those long winter nights in rural English manses – and managing to shoot some discreet cannonballs over the walls of such a redoubtable edifice as the Institution of Marriage, well, it shows a certain literary versatility, sangfroid, and insouciance. But then, he is, after all, Edward Gibbon.


    1. Well, Justinian moved into the direction where you could almost marry anyone legally and children would become more legal. His biggest moved since he wanted to marry Theodora was to convinced Justin to changed the law so he could marry a ex-actress. We have the law in the Justinian Code.

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