The severe penalties ordained by the adultery law inflicted suffering on everyone concerned. A husband confronted with undeniable evidence stood at least to lose his wife (whom he might regret) and also most of her dowry. Although relegation was not always permanent and some social life must have developed on the islands, the lives of condemned women in particular were ruined. The system was (as for the marriage law) operated by private prosecutors, who, if successful, were rewarded by a percentage of the confiscated property. This opened the door to persecution of the wealthier members of society, while it was
Suetonius lists the law on electoral bribery between marriage and adultery (Aug. 34; cf. Dio liv.16.1).
Alt. i. id ;. On the link between sexual immorality and subversion: Sail. Cat. 15. Homosexual bonding of conspirators or dangerous radicals: e.g. Cic. Cat. li.nf, Dom. 49, Pbil. n.44f; heterosexuaclass="underline" Dom. 2;, 8 3; Sail. Cat. 2 5. See G riffin 1977 (c 104) 21 f on the 'stereotype of the man of action who lives a life of luxury', alternately admired and attacked.
hardly worth an outsider's while to pursue humbler adulterers. It also meant that a husband, to protect his wife, might divorce and prosecute her and hope that she would be acquitted (D 48.5.3). The law made some gestures towards preserving the stability of marriages: for instance, if a husband kept his wife a prosecutor would have to sue him first, for conniving (D 48.5.12.10, 48.5.27), and if a divorced woman remarried without having received notice of prosecution, the prosecutor was to sue her alleged lover first (D 48.5.18.6, 48.5.12.11), but its overall effect was to destabilize. Adultery cases could be brought by delatores, men who made money and a career by prosecution, and a charge of adultery (how well founded we naturally cannot tell) was routinely brought when someone wanted to ruin an imperial or senatorial woman (e.g. Gaius' sisters, Nero's wife Octavia).
j. Effectiveness of the laws on marriage and adultery
The laws were praised by Horace, in the Secular Hymn of 17 B.C., for producing children (i7ff) and, in the Odes, for having curbed licence and restored old values {Carm. iv. 15 -9ff). Households were clear of stuprum and wives bore children who looked like their husbands (iv. 5,2off). Circumspecdon in recommending extramarital affairs was imposed on Ovid but perhaps morals were unaffected: Augustus and others in 2 в.с. discerned promiscuity in the heart of the governing class.
The marriage law of 18 в.с. does not seem to have impelled Horace to marry; the consuls who proposed the second law were caelibes, though it need not be assumed that they were lifelong bachelors. What was the situation before? Custom dictated that upper-class women married early in their reproductive years and, if necessary, often. Since a dowry provided income, a young Marcus or young Quintus Cicero might start considering matrimony in his early twenties; the rich eques Atticus married in his fifties; the normal age may have been in the late twenties. Men were not necessarily repelled by the idea of marrying: the demographic problem was that, while generally interested in breeding heirs to their name and property, they miscalculated by producing fewer than those needed to replace themselves and continue their lines.63 Most men had wives through most of adult life. The law sought to make them marry younger — and here there is some visible impact in the careers of young senators, such as Agricola — and to rear more children. In setting the ages of parenthood at twenty for women and twenty-five for men, Augustus was not encouraging an unhealthy age of first pregnancy: this requirement suggested an age of marriage of about eighteen for women and twenty-two or twenty-three for men. Senators seem to have adopted
63 Hopkins 1983 (a 46) chs. 2, 3, especially 69Й.
the latter.[1077] There was no need for the upper classes to change their habits in marrying off their daughters. The most eligible girls probably continued to marry before eighteen. One child probably sufficed for entitlement to inheritances; a bigger family secured seniority in a political career.
The effect of the adultery law is hard to assess. Its deterrent effect might be demonstrated by the comparative rarity of known trials. Or did the upper class close ranks and discourage delation? Augustus himself invoked it in 2 b.c. and a.d. 8 and sharpened the penalties (Tac. Ann. 111.24.2f). Later attested trials usually involved women of the highest position and the charge was often linked with treason.[1078] Prosecutions for stuprum are rarely documented. Tiberius, perhaps deploring Augustus' interference in private life, as he found sumptuary legislation vain, encouraged reversion to domestic jurisdiction (Suet. Tib. 35.1), although he checked women who attempted to evade the law by registering as prostitutes.[1079] Moralists continued to claim that adultery was rife.[1080] Domitian revived the law, which may suggest that he thought the number of prosecutions insufficient. But professional prosecutors presented a threat to the rich: the law encouraged not only collusion and cover-up, but blackmail (D 4.2.7.1). Renewal and expansion of both marriage and adultery laws and the continuing interest of jurists suggest that, although the laws failed in their general aim and, as Tacitus says, corruption and legislation went together, they were sporadically enforced, especially against the rich and prominent.[1081]
4. Manumission
Ambivalent traditions guarded the citizen body. Constant appeal was made to the ancestral virtues of Romans and Latins. But the extension of citizen rights to non-citizens was deep-rooted. The extension was grounded in practical needs, but justified by the moral qualities of the recipient - industry, loyalty, courage, eloquence. Men who would adopt the ancient customs of Romans deserved to be recruited. As the Senate was theoretically open to the good and rich, so the citizenship was to be open to the best men of allied states and to slaves and other non-citizens who deserved well (Cic. Arch. 19, 22ff, Balb. especially 24, 31). The enfranchisement of slaves was effected chiefly by their owners by three formal methods: by the census, by the rod (a procedure before a magistrate with imperium) or posthumously by testament.[1082] The increase in wealth in the late Republic meant a huge increase in the number an individual owner could enfranchise; slaves might be freed not as a reward for long or outstanding service, but in order to give their new votes or political support to their ex-owner (patronus) or relieve him of the direct burden of their support, by claiming the grain allowance in Rome. Private bodyguards and private armies increased the need for trusted liberti.10 The right of a citizen man or woman to pass on full ciuzen rights to slaves is remarkable - especially when we remember that a R от ana had no vote and could not secure citizen rights to her own children by a non-Roman husband. Augustus, as patron of the whole state could not shake this entrenched system, but he had reason to regulate the influx of citizens which any private owner could create at a time. Horace, the freedman's son, in a savage epode had attacked a former slave, scarred by public flogging, who sat in the fourteen rows with the equites (Epod. 4). Augustus, after advertising victory in a 'slave war' against Sextus Pompeius, may well have thought it necessary to regulate manumission (Cf. RG 25.1; Dio Lvi.33.3). Dionysius explicitly connects the legislation with a need to keep out criminals (iv.24).