Jump to ContentJump to Main Navigation
Prostitution, Sexuality, and the Law in Ancient Rome$

Thomas A. J. McGinn

Print publication date: 2003

Print ISBN-13: 9780195161328

Published to Oxford Scholarship Online: September 2007

DOI: 10.1093/acprof:oso/9780195161328.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date: 20 June 2018

The Lex Iulia et Papia

The Lex Iulia et Papia

Chapter:
(p.70) 3 The Lex Iulia et Papia
Source:
Prostitution, Sexuality, and the Law in Ancient Rome
Author(s):

Thomas A. J. McGinn (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195161328.003.0003

Abstract and Keywords

This chapter examines the ancient Roman law lex Iulia et Papia, which consists of a marriage law, the lex Iulia de maritandis ordinibus, and a comitial statute, the lex Papia Poppaea. The two enactments are usually distinguished in the sense that the first encouraged marriage; the second, the bearing of children. In fact, the lex Iulia itself rewarded parents. The second statute both supplemented and partly recast the first, eliminating loopholes and relaxing some of the rules. Thus the jurists and modern commentators can refer to the two laws as one: the lex Iulia et Papia. To understand better the connection between the two statutes, one might invoke the jurist Papinian's famous observation on the relationship between the ius civile and the ius honorarium: the lex Papia Poppaea functioned “to support, supplement, and correct” the lex Iulia de maritandis ordinibus.

Keywords:   lex Iulia et Papia, ancient Rome, prostitution, marriage, statute

1. The Statute

Augustus employed his tribunicia potestas in introducing a marriage law, the lex Iulia de maritandis ordinibus, before the concilium plebis in 18 B.C.1 This legislation was followed by the lex Papia Poppaea, a comitial statute that Augustus encouraged the suffect consuls for A.D. 9, M. Papius Mutilus and Q. Poppaeus Secundus, to sponsor.2 The two enactments are usually distinguished in the sense that the first encouraged marriage; the second, the bearing of children.3 In fact, the lex Iulia itself rewarded parents.4 The second statute both supplemented and partly recast the first, eliminating loopholes5 and relaxing some of the rules.6 Thus the jurists and modern commentators can refer to the two laws as one: the lex Iulia et (p.71) Papia.7 For convenience, I use this title for both laws and generally treat them as a single statute in what follows.8

To understand better the connection between the two statutes one might invoke the jurist Papinian's famous observation on the relationship between the ius civile and the ius honorarium:9 the lex Papia Poppaea functioned “to support, supplement, and correct” the lex Iulia de maritandis ordinibus. The two were not completely integrated; for example, the minimum age for bearing children under the lex Papia Poppaea was lower than the minimum age for marriage demanded by the lex Iulia de maritandis ordinibus, an anomaly not formally eliminated until Septimius Severus.10

The summary just given takes into account only the legislation enacted (albeit with modifications of detail) permanently. Scholars have seen, on the basis of a vague passage from Propertius,11 a vaguer one from Tacitus,12 and other, even less satisfactory evidence, a prototype of the marriage law dating to c. 28 B.C., but whether this measure in fact anticipated the Augustan marriage legislation, the adultery law, both, or neither is uncertain.13 If enacted, it did not last long.14 In A.D. 4 Augustus promulgated a statute that evidently would have sharpened considerably the lex Iulia de maritandis ordinibus, but this was suspended twice, first for a period of three years15 and then for another two, until it was finally abandoned in favor of the lex Papia Poppaea.16

This summary ignores the legislative activity of the Senate, which devoted much attention to the marriage law during Augustus's reign.17 It is unlikely that the lex Iulia de adulteriis coercendis closed the loophole under the lex Iulia et Papia whereby, at first, betrothal counted, without reservation, as marriage, which encouraged fraudulent behavior, such as arranging engagements with infants.18 Either an SC or even, in spite of the obvious implication of the context of Dio's report,19 the lex Papia Poppaea may have remedied the problem.20

(p.72) The lex Iulia et Papia established two categories of marriage prohibitions. Members of the senatorial order, which included senators and their sons, daughters, and, in the male line, grandsons, granddaughters, great‐grandsons, and great‐granddaughters, were forbidden to marry or to betroth themselves to freedmen, freedwomen, actors, actresses, and anyone whose father or mother was an actor or actress; later legislation added persons condemned in a standing criminal court, a category to which jurists (perhaps) appended those condemned by the Senate.21 All other freeborn persons were forbidden prostitutes, pimps, procuresses, and persons condemned for adultery or caught in the act.22 Senatorials of course could not marry such persons either.23 Freedmen and freedwomen could presumably marry anyone they pleased, aside from members of the senatorial order.24 The prohibitions are an illustration of the Roman tendency to merge categories of the social (freedpersons) and moral (prostitutes).

Spouses in marriages that violated the terms of the law were immune to its privileges and liable to its penalties.25 That is, they counted as caelibes, even if their marriages were completely valid under the ius civile. The statute itself did not render such unions invalid.26 Because it lays down a penalty without voiding acts in contravention, the law qualifies as a lex minus quam perfecta.27 This state of affairs remained true until an SC passed under Marcus Aurelius and Commodus rendered void those unions that violated the prohibitions designed for the senatorial order (i.e., all unions forbidden senatorials).28

The most important of the law's praemia et poenae involved the law of succession. As such they had resonance mainly for the political and economic elite, a point consistent with Roman notions of moral responsibility, which viewed the upper orders ideally as models of behavior for the lower.29 The rules for intestacy were unaffected,30 but persons who were unmarried or whose union violated the (p.73) law could receive nothing under a will unless they fell within the sixth degree of blood relationship (seventh, in the case of children of second cousins). That such a broad range of relations was exempted is nowhere attested explicitly by the sources, owing to later changes made in the law.31 Spouses with no children could receive only a tenth of each other's estate upon death, with an additional tenth for each child from a previous marriage.32 Even without mutual children, the partners might receive the usufruct of one‐third of the other's estate, and the wife could receive her dowry as a legacy.33 Spouses (as well as betrothed couples), their parents, and sons‐and daughters‐in‐law were excused from the obligation to give testimony against each other in cases arising under the lex Iulia et Papia.34

Children conceived in the marriage itself gave parents full capacity with respect to each other if one child survived past puberty, if two lived more than three years, or if three survived to their “naming day” (nine days past birth for males, eight for females).35 Apart from this, the orbus was granted half capacity, that is, the right to one‐half of every individual bequest,36 but only one child was sufficient for both men and women to receive37 bequests from others, in their entirety,38 and to become eligible for bona caduca, or bequests whose intended recipients, named under the same will, could not take under the law. Patres were eligible for those bequests that were assigned to others in the same will but that they could not claim because they were caelibes or orbi, as well as any bequests that failed because of the death of the intended recipient or the nonfulfillment of a condition.39 If there were no such persons eligible, the property in question went to the state treasury,40 originally the aerarium, later the fiscus.

(p.74) The law allowed caelibes 100 days to comply by marrying before their portion went to the patres named in the will.41 Women whose marriages had terminated through death or divorce enjoyed grace periods of 2 years and 18 months, respectively.42 The lex Papia Poppaea increased the limits imposed by the lex Iulia of 1 year for death and 6 months for divorce.43 The demands of the law thus conflicted with an ideal of loyalty to a deceased spouse represented by the univira.44

The law granted a dispensation for marriage to males younger than 25 and females younger than 20. It did the same for men 60 or older and women 50 or older.45 This was amended by the SC Persicianum passed under Tiberius, which stipulated that those who had not married in compliance with the law before reaching the maximum age limits could no longer benefit from the dispensation.46 The SC Claudianum permitted such men to marry women younger than 50 and still reap the rewards, while a further enactment, the SC Calvisianum, expressly removed this possibility for women over the maximum age.47 Another dodge was met with the SC Gaetulicianum, of uncertain date,48 which closed the loophole that permitted childless wives in manu to receive more from their husbands either on intestacy or under a will than they were strictly permitted by the statute.

Yet another statute, passed in the reign of Vespasian, extended the regime created by the marriage law to fideicommissa49 and one more SC included donationes mortis causa.50 Of course, legislation did not address every dodge, nor was it always successful where it attempted to do so.51

Caracalla, in designating the fiscus as the destination of caduca, imposed severe restrictions on the regime for this type of property: only ascendants and descendants up to the third degree remained eligible for it.52 This change enhanced considerably the tendency of the statute itself to serve as a mechanism for supple (p.75) menting state revenues, a tendency that may fairly be regarded as the hallmark of the postclassical regime.53

The testamentary provisions aimed exclusively at the rich. The Gnomon of the Idios Logos applies the law only to men with property valued at 100,000 sesterces or more and to women with a census of 50,000 sesterces or more.54 This feature is generally understood to have been empirewide, a conclusion suggested by the law's provisions for freedmen with patrimonies valued at 100,000 or more.55 These freedmen were required, whether they died leaving a valid will or intestate, to leave a pars virilis to their patrons if they had fewer than three children.56 Informers received perhaps one‐half of the amount in question;57 this was reduced to one‐fourth by Nero.58

Only the elite would have been interested in the law's stipulation that the consul with wife and children had precedence in assuming the fasces.59 The statute removed one year for each child from the minimum age requirements for political office60 and favored fathers in the replacement of magistrates who had died in office and in the distribution of provincial governorships.61

The Flavian Municipal Law (FML) stipulates that when candidates for municipal office have the same number of votes, those who are married or count as married62 and/or have children shall receive preference, and that when the members of the town council cast their votes, priority is accorded to those with the most children born in iustae nuptiae (and to those who would so qualify if they were Roman citizens).63 Patronae with two or three children were given special rights over the wills of their (wealthy) freedmen.64 The exemption afforded by the ius liberorum from munera civilia (at the start, perhaps only tutela and cura) would have interested only the wealthy.65

(p.76) Other provisions of the law aimed at a broader range of persons. A woman with the ius liberorum was freed from the tutela muliebris.66 Freedmen with two children in potestate or one child at least five years of age were released from operae if they were not actors or beast‐fighters.67 Caelibes were forbidden to attend public spectacles and banquets, a prohibition inferred from two remissions, one that allowed the unmarried to attend the Ludi Saeculares of 17 B.C. (SC de ludis saecularibus)68 and one that permitted them to join in the celebrations for Augustus's birthday in 12 B.C.69 Caelibes enjoyed less desirable seats in the theater, which perhaps suggests a later relaxation of an absolute ban.70

Although in practice only the rich were subject to the testamentary poenae, the praemia were evidently open to patres of all classes.71 Literary evidence suggests that Augustus intended the law effectively to embrace the citizen body as a whole.72 If it is true, as scholars have argued in recent years,73 that elements of the Roman political elite experienced difficulty in replacing themselves politically, if not biologically and socially, it was crucial for Augustus to reach below the senatorial order. To be sure, he had uses for the equestrian order in its own right,74 as well as for other groups among the non‐senatorial ingenui.75

The term ius liberorum signifies the right to enjoy the entire bloc of privileges allowed under the marriage law.76 Exceptions are those political benefits mentioned above that do not depend on an absolute number of children, but one usually relative to the number possessed by rivals, and the arrangements for release from (p.77) munera.77 The most important of these privileges were, for women, freedom from tutela;78 for men and women, enhanced patronal rights in the succession to his or her freedmen and full capacitas (which meant eligibility for caduca).79 Three children secured the ius for males and freeborn women; freedwomen needed four.80 Those who did not earn the privilege through having the requisite number of children might receive it as a special grant from Senate or emperor. Dio records a grant of the ius liberorum to Livia in 9 B.C.81 Claudius is the first emperor we know to have usurped the Senate's role in granting the ius,82 but his concession of the privilege to groups, such as soldiers83 and those who financed the building of merchant ships,84 suggests that grants to individuals had by now become routine; in fact, the statute itself evidently provided for a dispensation for those whom nature had denied.85 Vestals received the privilege early, and thereafter automatically,86 as did emperors from Antoninus Pius on.87

The ius liberorum exempted a woman from the strictures of the lex Voconia.88 The privilege also released its bearers from the obligation to remarry imposed by the law.89 Mere eligibility for the ius was itself a mark of honor, so that we find it invoked even in situations where it was technically unnecessary.90 This privilege (p.78) was abolished in 410.91 Constantine had already eliminated the incapacitas of caelibes and orbi, leaving only the rules governing bequests between spouses.92 The same emperor imposed a new set of marriage prohibitions.93

The purpose of the lex Iulia et Papia has been hotly debated. Earlier generations of scholars adopted a moralizing approach, pessimistic about what the need for the legislation signified and, typically, about its effects.94 Much work has been motivated, as well as characterized, by contemporary concerns.95 There has been an inevitable tendency to view the law through the ideological prism of the author's own time.96 More recently, discussion has centered on the question of whether Augustus's purpose was essentially moral or demographic.97 Especially worthy of note are those contributions that attempt a close examination of the details of the legislation in order to assess its purpose and putative effects.98

A full interpretation of this statute can hardly be attempted here, but a few central points should be raised. First is the law's purpose. The distinction between morality and demographics is a false one to draw for the Romans. The very existence of the marriage prohibitions shows how demographic ends might be pursued within a framework determined by considerations of rank and gender.99 Concern with the reproduction of the body of Roman citizens goes back to the second Punic War and, like other public issues of any importance, was conceived and presented in moral terms.

Augustus was hardly the first to attempt a solution; the policies espoused by (p.79) the Gracchi are perhaps familiar enough. Many individual aspects of the law derived in fact from earlier approaches to similar problems.100 The most dramatic example is the speech promoting marriage and child‐rearing by Metellus Macedonicus, censor in 131–130, which Augustus read to the Senate to justify his own policy.101 Freedmen with children were allowed in the army in 217 B.C. and were later permitted to retain the privilege of enrollment in the rural tribes.102 Caesar's assignation, in 59, of the remainder of the ager Campanus to citizens with three or more children is another example.103 Octavian awarded his wife and sister release from tutela in 35 B.C.104 Married men and fathers of children enjoyed preference in the allotment of provinces beginning in 27 B.C.105 Equally important is Cicero's call for moral reform and demographic increase in 46.106 Pompey and Caesar both wielded extraordinary authority with regard to supervision of morals.107

The censors had for centuries been responsible for moral oversight, a field that included the promotion of marriage, with the particular aim of raising children.108 In the year preceding the introduction, on his tribunician authority, of the lex Iulia de maritandis ordinibus, Augustus assumed the functions, if not the title with full authority, of a cura morum et legum.109 Significant in this connection is the story of how Augustus, qua “censor,” castigated an eques—wrongly, as it turned out—for noncompliance with his marriage legislation.110

Resort to a positive act of legislation was something new111 and entailed obvious inconveniences, as well as certain advantages. The difficulty of designing a system of rewards and punishments that had any chance of influencing the behavior of the lower orders is noteworthy. Those who would argue that the law had no concerns of this sort should first look at the system it was designed to replace. Moreover, some of the individual provisions contained in the lex Iulia itself are telling. The penalties regarding public entertainments were broadly conceived and were perhaps more keenly felt than we tend to imagine. The law evidently imposed a tax on celibate women with fortunes of 20,000 sesterces or more, a measure that (p.80) reached fairly far down the social scale.112 With perhaps a better chance of success, Augustus developed a means, outside the legislation, of communicating “his” values to a broader audience.113 Still, it is important to try to understand the legislation in the broader context of public opinion and social practice: it too bore a “message” that could resonate beyond the scope of the law in its direct, technical application.

What is most striking is the law's attempt to create a meritocracy of virtue. This is hardly limited to the preferential treatment accorded upper‐class office seekers married with children. The behavior rewarded by the law was truly a “carrière ouverte aux talents,” and anyone with material assets worth transmitting to the next generation could find a motive for respecting the statute here. Wealthier freedmen were disadvantaged by the law with respect to their testamentary duties to patroni unless they had three children.114 As noted, just two children held in potestate were enough for an exemption from operae unless the freedman was disgraced by his profession, and a freedwoman who married with patronal approval was delivered of this responsibility.115 A freedwoman with four children could escape tutela and write her will without interference, obligated to leave not more than a fifth of her estate to the patronus,116 whereas a freeborn woman needed only three children to be independent of a tutor.

The requirements for lower‐status persons are consistently higher than those established for others. For example, the number of children required of a patron to become eligible for succession to his freedman is less than that which the later needed to limit or exclude such rights.117 The real difference here resides not in the absolute number but in the whole sociolegal context. Freedwomen manumitted after the legally prescribed age of 30 might have found it something of a challenge to produce four children, though more for reasons of fertility rather than of mortality, as is sometimes assumed.118 In this regard, the law favored those freed early “matrimonii causa,” and we find that the wives of imperial liberti were especially privileged.119 Ingenuae who married in their late teens or earlier enjoyed a head start of just over a decade at minimum, in order to produce one less child than freedwomen. Bearing three children was evidently not a heroic achievement in Augustine's world at any rate; instead, such a family was (p.81) considered optimal in size and was maintained through recourse to exposure of unwanted infants.120

Aside from the encouragement the law offered to nonsenatorial freeborn Romans to marry freedpersons (see below), various hindrances to marriage were removed. Children in potestate could buck the wishes of their pater familias when he placed unjustified obstacles in the way of their marriage.121 So Julian allowed marriage for the filius familias of a father held as a prisoner of war or who was simply absent for three years, provided the partner was appropriate.122 Marcus conceded marriage for the son of a furiosus.123

The law provided that the urban praetor appoint a tutor to approve a dowry if a woman had a tutor who was underage and so unable to lend his auctoritas.124 It protected dowry, essential for remarriage, by placing restrictions on the husband's ability to profit from the manumission of a dotal slave.125 It also liberated freed‐persons from an oath imposed on them, presumably by their patrons, not to marry, provided that they wished to contract a marriage “properly” (“recte”).126

Entirely in keeping with the spirit of the marriage law is the provision of the lex Aelia Sentia that enabled a Junian Latin to obtain full citizenship for himself and his wife and children if a child of the marriage lived a year.127 The law not only recognized and rewarded a best‐case scenario of the maximum number of children but established modest levels of achievement, tailored to a range of individual circumstances, and so united the spirit of the ideal with a sense of the practical and possible.128

In sum, obeying the law was an exercise in virtue that liberated one from other social responsibilities. As one scholar has remarked, apropos of the exemption from curatorship furnished by the ius liberorum, raising one's own children was a means of escaping the responsibility of raising the children of others.129 For example, the position of the pater familias who fulfills his social responsibilities is not weakened but enhanced.130

(p.82) Augustus's interest in reinvigorating the upper orders, such as it was,131 is at best only a partial explanation of his motives. If members of the upper classes were unwilling to shoulder their part of the burden, the law was prepared to reward those who were.132 The emperor's intent was in part the creation of a new, moral elite.133 The overture can only have been greeted with support, even enthusiasm,134 from broad sectors of Roman or, better, Italian society,135 despite the opposition it encountered in some quarters.136

Augustus did not attempt to create a social order ex novo but granted legal recognition to developments already under way.137 Over time, as the law's reach over the lower orders was extended further and its goals came increasingly to be conceived as fiscal rather than demographic, there was a tendency to level the social hierarchy, a process that allowed the authority of the princeps to emerge enhanced, by contrast. On an institutional level, the emperor's purpose was to raise the dignity of marriage. Matrimonium iustum was the form preferred above all others, which is not to say that other types of union were utterly ignored.

Legislation had another advantage, in that it abstracted the norms it established, made for uniform application (at least in theory), and avoided direct reliance on the personal authority of Augustus or a potential rival for its enforcement.138 Augustus could not, for obvious reasons, serve as anyone's model in this area, and yet it was hardly opportune for him to turn over the supervision of morals to others. This was not only politically risky but even impossible, given the moral climate prevailing among the upper orders at the time.139 Neither Augustus, with one child, nor Livia, with two, was in full compliance with the statute: most important, they (p.83) had no children in common.140 Especially telling is a famous exchange between emperor and Senate in prelude to the marriage legislation.141

It is difficult to take the measure of the law's effects. We lack much useful demographic information. Some recent assessments have tended toward the guardedly optimistic, citing as justification a robust increase in the census returns in the period following its passage.142 It is impossible to be certain that this phenomenon was produced by the law,143 though the result hardly justifies pessimism.

The ancients engaged in a ferocious polemic on the law, a discourse that addressed its operation or side effects but avoided criticizing its fundamental aims, as if these were beyond discussion.144 Through careful selection of socially despised types for the marriage prohibitions (while omitting to invalidate unions that contravened them), Augustus seems to have avoided the pitfall of comparison with another, much‐maligned prohibition of marriage, the provision of the XII Tables that forbade matrimony between patricians and plebeians. Though it was of short duration, soon repealed by the lex Canuleia, this measure offered an inauspicious and potentially embarrassing precedent for his program, which in important respects relied on this statute as a model for the transformation of mores into law. There is, to be sure, no certain example known to me of criticism of the marriage prohibitions.145 This success may reflect an aspect of the marriage law often neglected by moderns: Augustus perceived a reluctance to marry and responded with a liberalization, especially remarkable in the matter of unions between freed and freeborn outside the senatorial order, as we will see below.

One source, Pliny in his Panegyricus,146 implies that the law was demographically effective for the upper classes only. His point is well taken: direct economic assistance was more likely to yield results, at least as far as the poor were concerned. But it should not be pressed, since the remark falls in the context of flattery of Trajan, whose aim was, not merely to emulate, but to outdo Augustus, precisely by offering a form of direct economic assistance, the alimenta, to the poor.

Nörr has shrewdly observed how the law set up a mechanism that was almost fail‐safe.147 The state could not lose between the motives of revenue and repro (p.84) duction: the more disappointing the results in one field, the better they were in the other. Wallace‐Hadrill takes the redistributive analysis one step further, observing how the state's income from bona caduca and vacantia strengthened its ability to provide subventions for the fruitful but needy, for example, Hortensius Hortalus.148

Arguments about the the law's effects should not be confused with impressions of Augustus's intentions. Scholars are divided on the issue of whether the emperor fully intended the fiscal dynamics of the legislation.149

Finally, whatever the demographic or fiscal benefits, the law made a fundamental contribution to the construction of a moral ideology.150 The lineaments of responsible behavior were laid down with solemnity and rigor for the contemplation and improvement of the entire community. Those whose values and preferences were incorporated into the new legislation were well placed to receive its benefits; of course, anyone seriously interested in a political career had to reckon with the new rules of the game.151 The emperor was confirmed in his place at the apex of the social and political pyramid.152 Armed with the privilege of granting exemptions, he was able to oversee the working of the mechanism and to sort out any contingent conflicts between moral and political worth. An explanation of the law's centuries‐long popularity with the policymaking establishment has to be sought to a large extent in its ideological implications.153

Despite the hostility of some authors, ancient and modern, the law actually interfered rather little with one's freedom to write a will or marry.154 The scope of those relations who qualified as exceptae personae is impressive; significantly, they were the same persons who might expect to receive most testamentary bequests. Any male with less than 100,000 sesterces or female with less than 50,000 sesterces could marry whom they chose or not marry with impunity as far as the testamentary poenae were concerned. Until Vespasian, will‐makers liable to the law could circumvent the whole regime through resort to fideicommissa.

The same point holds for the marriage prohibitions themselves. They limited one's choice of partner only in a very few situations, all of which concern persons against whom a deeply felt social prejudice is either attested or fairly presumed, a prejudice that was weighted even more heavily against them as potential spouses of respectable, socially prominent persons. Since these prohibitions embraced prostitutes and pimps, it is the law's treatment of these types that will form the focal point of the following discussion.

(p.85) 2. Marriage with Prostitutes before Augustus

The question of whether, during the Republic, freeborn Romans were able to contract marriages with prostitutes and pimps is a difficult one, inextricably bound up with the debate over the rule on marriage of freeborn with freedpersons in this period. This is because our principal piece of evidence concerns a woman who was both a libertina and a prostitute. I will review the debate over the latter issue of freed‐freedborn marriage, which has received more attention, and then draw a conclusion about the marriage status of prostitutes and pimps under the Republic.

The modern debate over the status of marriage between freed and ingenui began with Mommsen, who claimed that such unions were prohibited by law under the Republic and so void (he concedes a laxer practice for the late Republic, when the evidence for such marriages is better).155 Karlowa argued that they were not subject to a legal ban and were valid under the law but were morally and socially disapproved and even liable to censorial punishment156.

Both positions have been criticized by Humbert, who proposes a third alternative, whereby the unions in question are visited with a sanction that renders them less than fully valid.157 It is not clear what Humbert means by this.158 The idea that the censors would exercise such a power is unsupported by any evidence. Moreover, Humbert's argument runs to a paradox: since the primary censorial sanction would be the declassing of the male upper‐class partner (practitioners themselves had little to lose, if my argument about routine censorial declassing of them in Chapter 2 is correct) and since there was unlikely to be much interest in punishing such unions between lower‐class partners, it is difficult to see the point behind the penalty he proposes.

Karlowa's view is the dominant one and is the more convincing, as strengthened by the arguments of Watson and Treggiari, who show that in the Republic such marriages were completely valid, not punished by any law,159 though socially (p.86) despised, and that in this sense Augustus actually introduced a liberalization by prohibiting only marriages between freed persons and members of the senatorial order.160 Watson is right to argue that Augustus was the first to introduce a statutory prohibition of marriage with freedpersons—obviously this held only for members of the senatorial order, whereas the Republican censorial sanction applied to all marriages with ingenui.161

All the same, I believe that the permission granted the ceteri ingenui was not simply implied (or granted “non‐technically” as Watson has it) by the prohibition contained in the law. The language of Dio and Celsus (the latter is especially important because he seems to cite the law: “cavetur”) suggests that there was some form of explicit encouragement, although this may have been hedged about by an acknowledgment that concubinage was a more acceptable arrangement. In a similar way, the lex Aelia Sentia of A.D. 4 allowed early manumission for slave women whose masters wished to marry them.162

The text that is of central importance to us concerns the granting of privileges to Faecenia Hispala, a freed meretrix and the heroine of the crisis caused by the Bacchanalian conspiracy in 186 B.C.:163

Liv. 39.19.4–6: 4. Senatus consultum factum est … utique consul cum tribunis plebis ageret, ut ad plebem primo quoque tempore ferrent… 5. utique Faeceniae Hispalae datio, deminutio, gentis enuptio, tutoris optio item esset, quasi ei vir testamento dedisset; utique ei ingenuo nubere liceret, neu quid ei qui eam duxisset ob id fraudi ignominiaeve esset; 6. utique consules praetoresque qui nunc essent quive postea futuri essent, curarent ne quid ei mulieri iniuriae fieret; utique tuto esset. id senatum velle et aequum censere ut ita fieret.

(4) A decree of the Senate was passed…to the effect that the consul should encourage the tribunes of the plebs to promulgate, at the earliest opportunity, a plebiscite … (5) to the effect that Faecenia be granted the power of alienating property, changing her legal status, marriage outside her (i.e., her patron's) gens, and likewise choice of a tutor, as if a husband had allowed this to her in his will, and to the effect that it be permitted for her to marry a freeborn male, and that neither fraus nor ignominia be imputed to him who marries her, (6) and to the effect that the consuls and praetors, both those in office at present and those elected in future, should see to it that no harm befall this woman, and to the effect that [all of this] be guaranteed. The Senate declared this as its will and granted consent for it to be carried out.

The technical precision of Livy's language is obvious: “there is little doubt that Livy is doing nothing more than put into indirect speech the direct wording of the decree.”164

The first four privileges concern Faecenia's status as a woman and/or as a (p.87) freedperson and so are not of direct concern.165 It has been doubted whether the permission to marry a freeborn male is related to her status as a prostitute. Mommsen argues that there was no connection, because the prohibition contained in the lex Iulia et Papia would be otiose if one already existed and because such a bar, if it did exist, would have been total, rendering a concession covering only ingenui without sense.166

Karlowa insists that the concession rested not only upon Faecenia's freed status but upon her profession.167 Watson views the concession as primarily concerned with the woman's status as libertina but points out that censorial ignominia was a prospect for any ingenuus who married a prostitute.168 Treggiari dismisses the possibility that the permission concerned her status as a prostitute,169 citing the emphasis laid by the passage on the freeborn status of the putative marriage partner and the fact that even freedmen might suffer disgrace in marrying such women.170

There is plenty of room for disagreement,171 but some weakness is discernible in the arguments of those who reject the idea that the concession is in any way tied to Faecenia's profession. For example, they must explain the evidence of Cicero172 as reflecting a change in the rule, a change that is unattested, or treat it as the product of a degeneration of morals in the late Republic.173 Mommsen's argument cannot stand, since the Augustan law, which in many instances translated social values into positive law, in fact allowed marriages between freedmen and prostitutes. Treggiari's observation is valid as far as it goes and suggests another way of looking at the question.

Unions with prostitutes, if shameful for freedmen, would be even more so for ingenui. The Senate's permission for Faecenia to marry an ingenuus embraced freedmen, a fortiori. The fact that Augustus allowed unions between freedmen and prostitutes implies no more than the concession granted to marriages between freed and nonsenatorial freeborn. Previously, such unions were socially and morally objectionable and at least theoretically liable to censorial sanction (which may not have been a deterrent to many libertini). If before the lex Iulia marriages between (p.88) freeborn and freed were so objectionable, unions between freed and prostitutes may have been less so, though if so this does not mean they were entirely immune from censure. These considerations generally support the view of Karlowa and Watson. Admittedly, however, the burden of proof rests squarely with those who wish to argue that the practice of prostitution is relevant to the Senate's concession.174

So far, so good. A solution to the problem may be discovered in Livy's description of Faecenia's relationship with P. Aebutius, a young aristocrat:175

Liv. 39.9.5–7: Scortum nobile libertina Hispala Faecenia, non digna quaestu cui ancillula adsuerat, etiam postquam manumissa erat, eodem se genere tuebatur. huic consuetudo iuxta vicinitatem cum Aebutio fuit, minime adulescentis aut rei aut famae damnosa: ultro enim amatus appetitusque erat et maligne omnia praebentibus suis meretriculae munificentia sustinebatur. quin eo processerat consuetudine capta ut post patroni mortem, quia in nullius manu erat, tutore ab tribunis et praetore petito, cum testamentum faceret, unum Aebutium instituerat heredem.

A prostitute of sterling character, the freedwoman Faecenia Hispala, unworthy of the means of making a living she had grown accustomed to while still a slave, sustained herself in the same way even after she had been freed. She maintained a sexual relationship with Aebutius, a young man of the neighborhood, which was in no way harmful to his patrimony or reputation. This was because she had taken the initiative and sought him out, and since the provisions his family had made were utterly insufficient to meet his needs, he was supported through his dear lover's generosity. Why, matters even reached the point where, smitten with the relationship, she, finding herself sui iuris after her patron's death, having applied for and received a tutor from the magistrates, in writing her will made Aebutius sole heir.

It is clear that Livy emphasizes Faecenia's profession, not her status as a libertina, when he describes her relationship with Aebutius. The apologetic tone is remarkable.176 She is described with the oxymoron scortum nobile177 as unworthy of her profession and merits a series of diminutives (ancillula, meretricula) that sound patronizing but that are evidently intended as compliments. Livy perhaps imagines (p.89) Faecenia as a character type, the whore with a heart of gold familiar from Roman Comedy.178 The two great dangers recognized by the Romans in such affairs are deprecated by Livy: harm to reputation and loss of patrimony.

The first of these threats is softened, if not obviated entirely, by the fact, as Livy presents the situation, that it was Faecenia who approached Aebutius in the first place (not surprising behavior for a prostitute)179 and she alone who made an emotional investment in the union. The second pitfall is avoided to the extent that Aebutius actually benefits financially from the relationship.180

Faecenia's profession was decisive for Livy's presentation of the relationship and explains why he displays such sensitivity about it. The historian's remarks in this context are equally important for understanding the contents of the SC, since what was true of attitudes about love affairs181 was even truer for marriage.

Aebutius's status as the son of an eques equo publico was no doubt an aggravating factor, but marriage between a prostitute and any ingenuus would still have been a matter of some delicacy, as the decree of the Senate, which clearly does not contemplate Aebutius as the sole prospect,182 suggests. Nor need we presume that Livy's emphasis on the profession stems from a contemporary perspective at odds with the historical reality of the early second century, whereby the objections to marriage between ingenui and freedpersons had softened while the social prejudice against marriage with prostitutes remained strong.183

The evidence supports the conclusion that it was both Faecenia's status as freedwoman and her profession as prostitute that would ordinarily have barred her marriage with freeborn males. In other words, in the time of the Republic, marriage of freeborn with freedwomen was punishable in exactly the same way as marriage with prostitutes. The terms fraus and ignominia employed by the SC do not suit the argument for nullity but suggest the violation of a purely social norm, punished (p.90) with the sanction of the censors.184 This was directed at the male partner and meant removal from the Senate or from the ranks of equestrians for members of either order and demotion from one's tribus and assignment to the aerarii for all other ingenui. A fine might complement social degradation.185 If anything, attitudes were perhaps more liberal regarding marriage between freedmen and non‐elite ingenui; at any rate, by the time of the late Republic it is difficult to imagine routine censorial intervention in such cases.186 The same regime, with similar qualifications, perhaps held true for those who concluded marriage with any of the women who fell in the categories proscribed by Augustus in the lex Iulia et Papia. Admittedly, direct evidence is lacking, though it may be significant that Augustus was called upon to consider the case of a man who had married his former partner in adultery in his exercise of the cura morum,187 and Domitian as censor removed a man from the equestrian order who had remarried, without first obtaining an abolitio, a woman he had accused of adultery.188

Whatever view one takes of the last point, a broad continuity emerges in the treatment of prostitutes both before and after the Augustan law. This point can be pressed further. As noted, the lex Iulia et Papia punished offenders against its marriage prohibitions as caelibes. The Republican censors were entrusted with the responsibility of ensuring that Romans married and that these marriages produced children.189 Augustus can be regarded as having done no more than codify an aspect of the regimen morum,190 with, one might argue, some attenuation of the penalties, since those who violated his marriage prohibitions would not be subject to ignominia but only to the financial disabilities visited upon the unmarried both before and after the reform.

At the same time it is obvious that Augustus went beyond the practice current in the Republic. The law applied to all ingenui; indeed, it lumped all nonsenatorial ingenui together in a way that was unlikely if not impossible for the censorial nota. Women were included, a novelty.191 Beforehand a woman who entered into a dis (p.91) graceful union would have been chastised by her relations, not by censors. The senatorial order itself was given more precise definition. Presumably there had been little prospect of censorial interference for a fourth‐generation descendant of a senator living in relative obscurity. This was now no longer true. The new law was uniform for all and inexorable, deaf to entreaty and incapable of making the fine (or arbitrary, depending on one's point of view) distinctions that the old aristocracy had been accustomed to draw. It was a suitable foundation for a new moral order constructed from the materials of the old.

3. The Terms of the Lex Iulia et Papia regarding Marriage with Practitioners of Prostitution

Problems with Evidence

Aside from the prohibitions against marriage with ingenui, prostitutes and pimps were placed under the same regime as everyone else, with one important exception. My aim is to survey briefly the evidence directly relevant to these prohibitions and to discuss some of their effects. A more detailed treatment is reserved for a special feature of the law affecting prostitutes, the so‐called quarta. Finally, the phrasing of the legislative prohibition and its implications are examined.

It is widely recognized that our most important source, a passage from the so‐called Tituli ex corpore Ulpiani, is deeply flawed:

Tituli 13: De cael<ib>e orbo et solitario patre.

  • 1. Lege Iulia prohibentur uxores ducere senatores quidem liberique eorum libertinas et quae ipsae quarumve pater materve artem ludicram fecerit, item corpore quaestum facientem.

  • 2. Ceteri autem ingenui prohibentur ducere lenam et a lenone len<a>ve manumissam et in adulteri<o> deprehensa<m> et iudicio public<o> damnata<m> et quae arte<m> ludicram fecerit: adicit Mauricianus et a senat<u> damnatam.

On the unmarried man, childless man, and unmarried man with children.

  • 1. By the lex Iulia, senators and their sons are indeed forbidden to marry freedwomen and those who themselves or whose father or mother have been actors or actresses, likewise, a woman making money with her body.

  • 2. Moreover, all other freeborn men are forbidden to marry a procuress and a woman manumitted by a male or female pimp and a woman caught in the act of adultery and her who has been an actress: Mauricianus adds also a woman condemned by the Senate.

It is obvious that the heading does not accurately describe what follows in the text. The text was all but gutted by an unknown editor following the reforms enacted by Constantine, who rescinded the disabilities imposed by the classical law on the three types named in the heading.192 The authorship and early history of the Tituli (p.92) ex corpore Ulpiani have been much debated; a recent examination argues that its genesis lies with a colleague/student of Ulpian who edited the master's material and dates the revised version we possess to 320–342.193

A glance at the text betrays a number of purely formal problems.194 The difficulties do not stop there. There is no reference to a prohibition on betrothals, which must have been in the lex lulia et Papia, or to women belonging to either the senatorial order or the ceteri category or to the requirements of wrongful intent and knowledge (i.e., of partner's status) for the commission of an offense.195 While the law evidently defined the senatorial order down to the fourth generation in the male line,196 this text gives only sons of senators.

More serious is the conflict with the information given in the Digest regarding some of the types of women prohibited. There it says that those condemned in a criminal court are forbidden senators by an SC; their status is then compared to that of women caught in the act of adultery.197 In this case the evidence of the Digest should perhaps be preferred, at least for the first group,198 which suggests that the remark concerning the woman condemned by the Senate belongs in this category of prohibitions, too. This means that women condemned in any criminal court are forbidden under the SC to marry senatorials, whereas the law itself forbade only those condemned for adultery (or caught in the act) to all freeborn persons.

What precedes is the solution elaborated by Riccardo Astolfi.199 His preference for the evidence of the Digest is the line taken by Mommsen and most scholars with respect to two other, similar conflicts.200 One involves actors, actresses, and their progeny, all of whom the Digest places among the senatorial prohibitions.201 (p.93) The other concerns prostitutes, whom the jurist Paul,202 who gives only the senatorial prohibitions and who purports to quote the law, omits.203 The discordant participial construction “item … facientem” and the fact that Ulpian204 in his commentary mentions pimps and prostitutes together have persuaded Mommsen and others205 to place the latter among those women forbidden to marry ingenui.206

It is possible, though unprovable, that progeny of prostitutes and pimps, like those of actors and actresses under the senatorial prohibitions, were embraced by the law.207 They are not mentioned in the juristic commentaries as we have them, which give plenty of space to problems concerning the status of actors’ children. It is conceivable, however, that the types forbidden senators and their kin received more careful definition. By the same token, senators were forbidden to marry those persons prohibited to ingenui, and children of pimps, gladiators, and trainers are grouped together in an SC of A.D. 19.208

Women manumitted by pimps also receive no mention by the jurists and are best regarded as a postclassical insertion, placed here as compensation for the transposition of true prostitutes to the senatorial paragraph: it is interesting that these women should be regarded as in some sense equivalent to prostitutes.209

In sum, the law instituted two categories of marriage prohibitions. Members of the senatorial order, which included senators, their sons, daughters, grandsons, granddaughters, great‐grandsons, and great‐granddaughters in the male line, were forbidden to marry or to betroth themselves to freedmen, freedwomen, actors, actresses, and anyone whose father or mother was an actor or actress. Later legislation added persons condemned in a standing criminal court, to which the jurists (perhaps) appended those condemned by the Senate. All other freeborn persons were forbidden prostitutes,210 pimps, procuresses, and persons convicted of adultery or caught in the act.

By implication, there were three possible courses of action open to prostitutes and pimps under the law. Either they obeyed it, by marrying freedmen and bearing (p.94) children, or married ingenui in defiance of it or simply did not marry at all. Marriages with prostitutes and pimps in violation of the statute were punished the same way as any other such union:

Tituli 16.2: Aliquando nihil inter se capiunt, id est si contra legem Iuliam Papiamque Poppaeam contraxerint matrimonium, verbi gratia si famosa<m> quis211 uxorem duxerit, aut libertinam senat<or>.

Under certain circumstances [spouses] receive nothing from each other, that is, if they have married contrary to the terms of the lex Iulia et Papia, for example, if someone [i.e., an ingenuus] marries a woman stigmatized by the statute, or a senator marries a freedwoman.

The famosa at minimum is a prostitute,212 but I see no reason why the term should not refer to procuress and adulteress as well: so also for ignominiosa below.

Such spouses, if married with manus, would have been prevented by the SC Gaetulicianum from inheriting upon intestacy,213 and in all other respects counted as caelibes. It is important to note that persons married contra legem were deprived of any benefits accorded by the legislation. The lex Iulia et Papia did not permit a freedwoman married to her patron to divorce him without his consent.214 But if the woman was, for example, a prostitute, the (freeborn) patron could not claim this privilege:215

Ter. Clem. (8 ad legem Iuliam et Papiam) D. 23.2.48.1: Si ignominiosam libertam suam patronus uxorem duxerit, placet, quia contra legem maritus sit, non habere eum hoc legis beneficium.

If a patron marries his own freedwoman even though she is disgraced, it is the prevailing view that, because he is her husband in violation of the statute, he does not enjoy the benefit conferred by the statute.

Similarly, although the law provided that if a woman had a minor for a tutor, she might ask the urban praetor to grant one for the purpose of constituting her dowry, he was obligated to refuse her request if the ensuing marriage would violate the law.216

The Quarta

One would tend to assume that prostitutes and pimps who did not marry would, as caelibes, be rendered completely incapaces, but one source introduces a wrinkle of sorts: (p.95)

Quint. IO 8.5.17: Pro Spatale Crispus, quam qui heredem amator instituerat decessit, cum haberet annos duodeviginti: “hominem divinum, qui sibi indulsit.”

19: Trachalus contra Spatalen: “placet hoc ergo, leges, diligentissimae pudoris custodes, decimas uxoribus dari, quartas meretricibus?”

For Spatale,217 whom a certain lover had made heir, and died when he was eighteen years old, spoke Crispus: “O lucky man, who knew how to be good to himself!”

Against Spatale, Trachalus: “O laws, the most unrelenting guardians of sexual honor, is this then pleasing, that wives be given only tenths of an inheritance, but prostitutes a quarter?”

The two advocates are L. Iunius Q. Vibius Crispus (cos. I suff. before 60) and P. Galerius Trachalus (cos. ord. in 68). The evident longevity of both men makes the encounter difficult to date, but a time early in Domitian's reign seems probable.218 The leges are without doubt the lex Iulia et Papia.219 The decimae refer to the amounts for which a married person who had no children in common with his or her spouse was eligible to take from a decedent spouse's estate.220

The significance of the provision regarding meretrices is, however, less clear. Hartmann argues that although Trachalus must refer to statutory provisions relating to capacitas, these cannot concern prostitutes, who were, in Hartmann's view, not allowed to receive bequests qua caelibes.221 Trachalus, when he says “prostitutes,” really means “concubines” (Hartmann appeals to the notion of rhetorical hyperbole), to whom the law would have granted one‐fourth capacity; Trachalus contrasts their situation with that of wives, to whom the same statute allowed a minimum of one‐tenth.

Solazzi approves Hartmann's idea that the lex Iulia et Papia did not grant the quarta to prostitutes, on the ground that such a measure would have contradicted the moral aims of the legislation.222 On the other hand, he argues, the law did not deprive these women of all capacity to receive bequests. This enabled the jurists to make allowance for prostitutes, who were effectively barred from marriage by the law (unlike Hartmann, Solazzi acknowledges that the law entitled them to marry freedmen but doubts that any self‐respecting libertinus would have wanted a prostitute as a wife), and to grant them complete capacity. Since the law was designed to encourage matrimony and the raising of children, he concludes that the provision mentioned by Quintilian concerned neither prostitutes nor concubines but the mater solitaria.223

(p.96) Astolfi224 suggests simply that before Domitian's move against the feminae probrosae, those women (among whom he includes prostitutes, procuresses, actresses, adulteresses convicted or caught in the act, women condemned in any iudicium publicum, as well as former prostitutes, procuresses, and actresses)225 were allowed to receive one‐fourth, without defining the circumstances under which this was possible.

Hartmann assumes that prostitutes were perforce caelibes and thus by operation of law incapable of accepting testamentary bequests. As noted, however, they might marry freedmen and, despite Solazzi, we cannot be sure that such a match would have been undesirable for all lower‐class males. There is no evidence that Spatale was her benefactor's concubine. Certainly, the mere fact of the bequest suggests their relationship was more than casual, but this hardly proves it amounted to the institution of concubinage recognized by the jurists.226 At any rate, nothing in the text uses their relationship as a way of justifying or explaining the bequest: Spatale is simply identified as a prostitute.

The same reasoning holds against Solazzi's claim about the mater solitaria: there is not a word about children. The arguments of both Hartmann and Solazzi depend on taking meretrix as a term of abuse for another type of woman, but this is unlikely.227 When Trachalus speaks of “prostitutes,” he must mean “prostitutes.” The same criticism can be made of Astolfi's introduction of the category of feminae probrosae.

Furthermore, if we accept Solazzi's view on the solidi capacitas of prostitutes, Trachalus's point becomes unintelligible. Why would he identify the opposing litigant with a group whose capacity was greater than that of the group to which she actually belonged? The lawyer's artifice seems to lie simply in the contrast of the best possible situation of an unmarried prostitute under the law with the worst possible situation of a wife (i.e., he assumes her to be childless).

Trachalus, to be sure, neglects to mention some of the other benefits that the law granted the childless wife, such as the capacity to take a third of the spouse's patrimony in usufruct, her dowry in a legacy, a pars virilis on intestacy if married with manus (before the SC Gaetulicianum, which, however, probably preceded this case), and the rule for exceptae personae, or that granting half capacity for bequests made by persons other than the spouse. We have here a useful showing of how unreliable the remarks of a trial lawyer can be as a source of information about the law. At all events, it is difficult to agree with Solazzi that the jurists, otherwise so sensitive to the moral aims of the legislation,228 would have flouted them so extravagantly here.

(p.97) Astolfi's view must be modified in two respects. As already seen, there is no justification for extending the application of the regime for the quarta to the feminae probrosae, however these women are defined. Beyond this, an overall limit of one‐fourth on the testamentary eligibility of prostitutes seems harsh, even punitive, and at odds with the spirit of the law, which permitted them to marry freedmen and adopted a neutral, at times even benevolent approach toward the lower classes. Prostitution was widely tolerated at Rome and was given an explicit sanction of sorts by the adultery law of Augustus, to say nothing of Caligula's tax.

In sum, it would be strange to find such a draconian measure here. It also seems to run against the grain of one of the more obvious aims of the legislation. The lex Iulia et Papia was built on a series of rewards and penalties. A woman whose capacity was limited to one‐fourth at best might not consider that she had much to lose by violating its terms. Above all, why should she be punished for obeying them? In other words, why should she be limited to one‐fourth capacity if she married a freedman and bore children?

It is admittedly difficult to determine the precise nature of this quarta. Whether or not Trachalus is contrasting the best possible situation for a prostitute with the worst for a wife, it is true that he contrasts meretrices with uxores. In other words, it appears that he was thinking, not of married prostitutes, but of unmarried ones. If the quarta applied only to the latter, who were of course caelibes, then it may be understood as a mild form of encouragement for prostitutes not to marry. On this hypothesis, their situation would have been better if they married within the law (and had children) but worse if they married against it.

This measure provided a comfortable middle ground, which enabled prostitutes to carry on their trade without contracting unions that, although legal, were ipso facto dishonorable and without compromising the goals of the legislation by unduly rewarding any group for not observing it. In sum, wives of freedmen (without a child by their current husbands) were entitled to the decimae whether they were prostitutes or not, but the unmarried prostitute could claim a quarta from a generous lover.

Astolfi views this as being one‐fourth of the actual bequest.229 He rightly takes the decima as one‐tenth of the patrimony, so that this would represent a ceiling on the share of the total inheritance that the woman might receive.230 Although Trachalus may be comparing apples and oranges, the better view is that the quarta represents one‐fourth of the patrimony.231 The disposition bears witness more to the testamentary freedom enjoyed by Romans, a freedom that the lex Iulia restricted only modestly, than to favoritism toward prostitutes. The idea was to discourage marriage: a prostitute stood to gain far more from a lover by not marrying him (if he were not a libertinus and the pair did not have children).

(p.98) All the same, Augustus wanted to avoid giving prostitutes a motive to marry even those whom the law permitted them to marry, a motive that might indeed have strongly influenced them if they otherwise faced the complete loss of capacitas. Overall, this is a milder and more balanced approach than simply forbidding them to marry at all and then subjecting them to the full range of penalties imposed on those who did not marry in accordance with the law. Such a course might be expected from policymakers much more hostile to prostitution than Augustus and his successors appear to have been.

At the same time we are entitled to ask: just how relevant was all of this for most Roman prostitutes? The obvious answer is not very much. It would apply only to those who, like Spatale, posed a threat to elite patrimonies and to those who were egregiously successful at plying their trade and aimed at securing their retirement with a marriage match well up the social scale. These are the prostitutes who threatened to blur the distinctions in society Augustus and his collaborators considered so important.

Given that repression of prostitutes or prostitution was not one of the law's purposes, this provision fits in well with the other exemptions prostitutes might enjoy under it, such as those associated with age, wealth, and status as exceptae personae. It may be compared with the quarta guaranteed heirs under the lex Falcidia, though this was a minimum figure, not a maximum as we have here.232 A better analogy might be the quarta that was the maximum amount an Alexandrian citizen might leave to his wife when they had no children in common (otherwise, the wife received a pars virilis of the estate).233 Besnier argues that this would have discouraged the peregrine woman from having children: childless, she was better off than a Roman wife without children.234 His explanation is that the Roman state had no interest in the reproduction of the peregrine population. A similar point can be made about Roman prostitutes. They too were considered irrelevant for the demographic concerns of state and society. Thus their position in the law of succession was more advantageous than that of other Roman caelibes.

One other advantage to the quarta is that, for all its generosity, it cut prostitutes out, to a large extent, from the considerable rewards of Roman testamentary bequests. I emphasize the three‐fourths of an estate for which the unmarried prostitute was not eligible. The squandering of wealth on prostitutes was a perennial concern in antiquity. Most of the expenditure seems to have taken place inter vivos, but, as the evidence of Quintilian suggests, some prostitutes could expect a healthy remuneration from clients upon their demise. The law limited such generosity, in the same way that it cut caelibes and orbi out of the considerable social and financial benefits that accrued to their status.235 It is well known that inheritance was the chief way of acquiring wealth in the ancient world. The provision for the quarta (p.99) complemented the prohibition of marriage with ingenui, in the sense that they blocked two paths by which prostitutes might ascend to the upper orders, through marriage and accumulation of wealth.

There is no evidence that the quarta was permitted to any of the other types that fell within the marriage prohibitions of the lex Iulia. As already noted, Trachalus mentions only prostitutes. Since freedpersons were allowed to marry all nonsenatorial ingenui, it is hard to see what role the quarta might have played here. It was hardly Augustus's aim to make celibacy attractive to such a broad segment of the population. Actors, actresses, and those condemned in a criminal court, although hardly so numerous, must fall under the same assumption, since they too were permitted to the ceteri ingenui. If scruples existed about such persons marrying outside the senatorial order, one would expect to see broader prohibitions, not compensating benefits.

As for adulteresses caught in the act, although technically they did not fall under the absolute prohibition against marriage enacted by the adultery law for convicted adulteresses,236 there was a motive to punish at work here that was not present in the case of prostitutes, so that it is very unlikely that the quarta pertained to them. This leaves only pimps and procuresses, about whom nothing firm can be said either way, although it is quite possible that they were treated by the law in the same way as prostitutes.

Characterization of Practitioners by the Statute

One matter remains to be discussed, and that is the precise way in which the law phrased the provisions on pimps and prostitutes. The latter can be determined fairly easily from the commentaries of the jurists:237 “qui quaeve palam corpore quaestum facit fecerit.”238 The insertion of the male pronoun is justified by the inclusion of women in the class of ceteri ingenui.239 The usage of the double verb is suggested by the fragment of the law quoted at Paul. (1 ad legem Iuliam et Papiam) D. 23.2.44 pr.: “…quae ipsa cuiusve pater materve artem ludicram facit fecerit…” (the phrase is repeated with the male pronoun later in the passage). The use of the present tense, “facit,” instead of the more common “fecit,”240 is guaranteed not only by its twofold appearance here but by Ulpian's remark that not only she who prostitutes herself (“facit”) but she who has done so (“fecit”) is liable under the (p.100) law.241 If “fecit” was the word used by the law, this observation would seem gratuitous.242

The phrase finds a parallel in earlier legislation. The Tabula Heracleensis (TH), when listing those persons ineligible to belong to the town council and to hold a magistracy, contains the expression “queive corpore quaestum fecit fecerit.”243

Why was this rather ponderous expression preferred by legislators to such commonly used terms as meretrix and scortum? The answer is perhaps that descriptive phrases were typically used in place of nouns to describe persons liable to the law, a usage grounded in the meticulous, even fussy, concern with precision characteristic of Roman legislation, particularly under the Republic.244 In some cases the words used in everyday speech might carry unwanted connotations or be too highly charged. This was true both of scortum and (to a lesser extent) meretrix (see above).

One notes minor differences in phrasing between the late Republican version and the Augustan law. The change in verb tense from “fecit” to “facit” is difficult to account for. There is a chance it may reflect a dispensation for those who practiced prostitution before the law was introduced.245

The same change occurs with the expression for actors and actresses in the two statutes: TH 123 and Paul. D. 23.2.44 pr. The reading facit is guaranteed by the reasoning of Pomp.‐Paul. D. 23.2.44.5, where in commenting on this provision, the jurists except the woman whose parent was engaged in the acting profession before her birth or adoption or whose adoptive father has emancipated her or whose birth father has passed away before the marriage. They justify these exceptions with reference to the sententia legis, which must, I think, be understood from the phrase “facit fecerit.” The rule that emerges is that the father has to be alive and, if an adoptive father, have the daughter in potestate at the time of marriage.

This suggests that ex‐prostitutes would be exempted at the time the law took effect, but not those who left the profession afterward.246 A general grace period was granted, according to one source, at the introduction of the lex Papia Poppaea.247 The lex Iulia de maritandis ordinibus laid down a grace period of one (p.101) year during which spouses who were left bequests by decedent spouses under the condition of not marrying could do so, offering an oath that the marriage was intended to produce children, without penalty.248 Caelibes had one hundred days to marry after a decedent's will was opened.249 They also enjoyed a remission for the Ludi Saeculares of 17 B.C.250 Another kind of grace period is found in the fact that the immediate forerunner of the lex Papia Poppaea was promulgated in A.D. 4 and was suspended twice, once for three years, then for another two, before it was withdrawn permanently.251 Both the lex Iulia de maritandis ordinibus and the lex Papia Poppaea granted vacationes to women whose marriages ended in death and divorce (see above).

Against this argument is the doctrine, championed by Ulpian,252 that the turpitudo of prostitutes was permanent. It is unlikely, however, that the original dispensation can have held much meaning for a jurist writing two centuries after it became irrelevant.

Further support for this interpretation of “facit fecerit” is perhaps to be found in a diatribe Cicero directed against a portion of Verres's edict as urban praetor.253 Verres framed a provision that closed a loophole in the regime of the lex Voconia and made the new rule retroactive with the phrase “fecit fecerit.” His motives were corrupt, argued Cicero. Moreover, such language was without parallel in the edict (“Fecit, fecerit? Quis umquam edixit isto modo?”: “Fecit Fecerit? Who ever framed the edict in this way?”).

The Voconian law itself was not retroactive. The same was true for a number of criminal statutes, but this principle is especially worth observing in private law, from which Cicero cited specific examples, besides the Voconian law itself. The only exception he was willing to concede concerned those matters that by their very nature were so terrible, so awful, that even if there had been no law against them, they merited prevention at all costs.

Prostitution and pimping surely fall within this special category of matters “terrible and awful” (“scelerata ac nefaria”). It is not surprising to find that in the public law provisions of the TH, prostitutes are excluded from participation in municipal honors even if they had abandoned their profession before the enactment of the rule. The phrase used is “fecit fecerit.”254

The lex Iulia et Papia, to be sure, is a private‐law statute that dealt in part with the delicate matter of selecting an appropriate spouse. In doing so, it touched upon the category of matters terrible and awful. In light of Cicero's reasoning Augustus might have proceeded in either direction but evidently chose to grant a dispensation to those practitioners who had retired at the time of the law's passage. In this way he exempted already existing marriages between such persons and ingenui—we can be fairly sure that there were no such unions with members of (p.102) the elite (see below)—while condemning existing marriages with still‐practicing prostitutes and pimps. This minor concession perhaps allowed the statute to appear somewhat less intrusive into the lives of its objects.

The use of “palam” by the law created a different problem.255 The jurists offered differing interpretations of this word, as we shall see. Insofar as we can divine the legislative intent, this qualifier was not meant to exclude prostitutes who did not practice their trade “openly,” or “publicly,” but rather to specify more exactly the kind of behavior targeted by the law. More than a description of the soliciting practice of prostitutes, it has a moralizing ring, and in this sense resembles the English phrase “common prostitute.”256

The exact wording of the phrase regarding pimps is less clear. That this was a short, simple expression is suggested by the commentaries on the law257 and the precedents that survive, from the praetor's edict and again from the TH. The latter strangely adopts the future tense (123): “queive lenocinium faciet.” This may be the result of an error;258 in any case we should prefer the wording of the edict, at least as a foundation.259 Thus the phrase of the lex Iulia would run “qui quaeve lenocinium facit fecerit,” if we assume a dispensation of the kind for which I argue.

4. Marriage Practice and Possibilities

“The real test of social acceptability is marriage.”260 The criteria of acceptability set by statute are clear enough: prostitutes and pimps are situated beyond the pale of freeborn Roman society, eligible only for unions with freedpersons. It is awkward to speak of the law's effects, since we cannot be sure what these were. The counterfactual experiment of imagining away its existence will yield no certain results. All the same, an interesting and perhaps answerable question remains. To what extent did the law's strictures resonate in social practice?

There is, to be sure, no satisfactory evidence on actual unions with practitioners of prostitution that violated the Augustan prohibitions. As far as we know, the law was broadly successful on the senatorial level. The explanation lies in the fact that this prohibition rested on a bedrock of social practice that was even more strict. It is interesting that with the possible exception of a passage of Propertius,261 the exact significance of which is far from certain, I can find no negative reaction to (p.103) the marriage prohibitions themselves. That is, no one complains that a freeborn Roman cannot marry a prostitute or a senator a libertina.262 Moralists in general show a higher standard for the character of marriage partners than that embodied in positive law, at least for the classical period.263

A quantitative study performed by Raepsaet‐Charlier on known senatorial marriages in the first three centuries shows that in 67% of the certain cases members of this order married each other.264 Of the remaining 33%,265 the overwhelming majority of unions were contracted by senatorials with members of the equestrian order or local aristocracies.266 Marriage in this sector of society is strictly “endogamous” in the terms of the Augustan law.

There is only one certain example known to me of a union between a member of the ordo senatorius and a freedman, and this particular marriage must have been accomplished with imperial permission.267 The widow of the senator Annius Libo married Agaclytus, a freedman of L. Verus.268 Moreover, Raepsaet‐Charlier finds that only one uncertain example of this type exists.269 The traces of another may be detected in a text of Marcian,270 which relates a rescript of Antoninus Pius. The circumstances, including the enactment by rescript of the rule and the situation of fact itself, suggests a real case; it is significant, however, that the existence of this union depended on a fraud. Overall, given the high profile of the senatorial order in our sources, as well as Roman sensitivity over such unions, the lack of evidence is telling.271 Raepsaet‐Charlier cites no examples of unions between members of this ordo and actors, actresses, et al., and I know of none.

It is, of course, impossible to state the case in such categorical terms for the ceteri ingenui.272 Among non‐senatorial elements of the elite, one would expect to find a similar pattern. It is not surprising to learn that in Byzantine Egypt, all daughters of bouleutai whose husbands are known married other bouleutai.273 The record of the ordo equester in the Julio‐Claudian period suggests that for all its (p.104) heterogeneous composition, a similar pattern held, with persons at the top of the order marrying senatorials and those at the bottom marrying municipal aristocrats;274 only a handful of unions with freedwomen are known.275

As for the rest, a passing remark of Quintilian should prompt caution, suggesting as it does that our lack of evidence may mask an important truth. In the context of a discussion over what technique to adopt when criticizing an opponent for a fault shared with the speaker, the author cites the example of a father who disinherits his son, born of a prostitute mother, because that son has also married a prostitute. Quintilian remarks that, although this type of case is based on a theme in school exercises, it is “not out of the question in actual court practice.”276 Would that we were better informed on the nature and frequency of such unions.277

Notes:

(1) The date is suggested by Dio 54.16.1 and confirmed by the SC de ludis saecularibus passed the following year: Jörs, E. (1893/4) 28–34; Rotondi, Leges (1912/1962) 444. On the dating of the Augustan leges Iuliae, see Arangio‐Ruiz, “Legislazione” (1938/1977) 250–251. On Augustus's use of the tribunicia potestas, see Jörs, E. 29, 36; Rotondi, Leges 444; Mette‐Dittmann, Ehegesetze (1991) 19.

(2) Jörs, E. 49. Many modern works confuse the names of these consuls: Spagnuolo Vigorita, “Nota” (1985) xix with n. 19.

(3) See below and, e.g., Astolfi, LIP 2 (1986) 314.

(4) The lex Iulia de maritandis ordinibus first instituted the ius liberorum: Jörs, V. (1882) 33–34.

(5) The lex Papia Poppaea accomplished this primarily by specifically requiring children and penalizing the childless: Jörs, V. 29–32. This law introduced delatores: Jörs, V. 8 with n. 2.

(6) Such as those for the vacationes, or grace periods allowed widows and divorced women; see below.

(7) The jurists use lex Iulia et Papia (Poppaea) in the titles of their commentaries: Jörs, V. 57, 65. For criticism of the modern habit of treating the laws as one, see Spagnuolo Vigorita, “Nota” XVIII–XX. I make no apology for referring to this lex through the singular law and plural laws, when the context demands.

(8) It may be noted that the marriage prohibitions, which form the focus of our attention, must derive originally from the lex Iulia de maritandis ordinibus but were evidently repeated (with or without changes, we cannot know) in the lex Papia Poppaea: Jörs, V. 9–10.

(9) Pap. D. 1.1.7.1.

(10) Tert. Apol. 4.8.

(11) Prop. 2.7.

(12) Tac. Ann. 3.28.2.

(13) See Jörs, E. 3–28, with Spagnuolo Vigorita, “Nota” xi, xiv n. 11, xxi, and the skeptical Badian, “Marriage Law” (1985). Not everyone is persuaded by Badian's argument: Williams, “Maecenas” (1990) 267 n. 19; Moles, “Livy's Preface” (1993) 151.

(14) Jörs, E. 5.

(15) This vacatio triennii (Suet. Aug. 34.1) does not refer to a grace period following the death of a spouse, as claimed by Mette‐Dittmann, Ehegesetze 132 (cf. 162).

(16) This is a rough summary of the reconstruction by Jörs, E. 49–63. Del Castillo, “Fecha” (1974), argues unpersuasively for the identity of the statutes of A.D. 4 and 9.

(17) Hor. Saec. 17–20 (decreta patrum); see also below.

(18) For another view, see Jörs, V. 17; Jörs, E. 36–39.

(19) 18 B.C.: Dio 54.16.1.

(20) See Dio 56.7.2.

(21) Paul. D. 23.2.44 pr. This passage quotes the law, providing the first comprehensive definition we have of the senatorial order and coming not by coincidence a year after Augustus's second review‐cum‐purge of the Senate: Talbert, Senate (1984) 39–47. For later legislation, see Ulp. D. 23.2.43.10–11; Tit. 13.1–2, with the discussion below.

(22) Ulp. D. 23.2.43 pr.–9, 12–13; Tit. 13.2; and the discussion below. Convicted adulteresses were forbidden to remarry by the statute on adultery: see Chapter 5.

(23) This is made explicit not by the law but by the jurists: Paul. D. 23.2.44.8; Marcel. D. eod. 49.

(24) Compare Edwards, Politics (1993) 42, who would rank freedpersons among the ceteri ingenui.

(25) Indirect proof of this is offered by the SC de ludis saecularibus of 17 B.C., which offers a dispensation to those “qui ledge de marita[ndis ordinibus tenentur]”; they are described in the relatio of the decree as those “qui nondum sunt maritati.” See FIRA 12 40.1; Jörs, E. 31.

(26) Savigny, System 2 (1840) App. 7; Jörs, V. 24 n. 3, 58 n. 1; Jörs E. 21–22; Corbett, Marriage (1930) 35–39; Gaudemet, “Matrimonium” (1950/1979) esp. 124–140; Astolfi, LIP 2 108; Baltrusch, RM (1989) 164; Treggiari, RM (1991) 64 (cf. 44, 50). Children born to marriages that violated the law were legitimate: Ulp. FV 168, with Astolfi, LIP 2 109.

(27) The sources are far from lucid on this issue, so that the opposing view, that the law invalidated marriages that violated its prohibitions, has received strong support: Nardi, “Divieti” (1941); Weaver, FC (1972) 171; Volterra, “IM” (1972) 459–465; Raepsaet‐Charlier, “Clarissima femina” (1981) 193.

(28) Astolfi, LIP 2 117.

(29) On this attitude, see Cic. Leg. 3.30–32 and the remarks of Astolfi, LIP 2 318–321. The law's reach was nonetheless fairly broad: see below and Astolfi, LIP 2 323.

(30) Interference here would have contradicted the goal of safeguarding and promoting the interests of the Roman family: Astolfi, LIP 2 311. For the evidence, see Voci, DER 12 (1967) 436–437; Astolfi, LIP 2 11–13. An exception has been argued for the praetorian regime on succession between husband and wife: Astolfi, LIP 2 121–123. See also Treggiari, RM 381.

(31) See, however, the convincing demonstration by Wallace‐Hadrill, “Family and Inheritance” (1981) 73–76; see also Astolfi, LIP 2 69–72. Upon the death of a woman married in contravention of the law, her dowry was confiscated: Gnom. Id. 24–26; Tit. 16.4. It is worth noting that the Augustan tax on inheritances exempted close relatives: Dio 55.25.5, with the remarks of Nicolet, “Augustus” (1984) 110.

(32) Tit. 15.1; Gnom. Id. 31 (it is clear that a tenth of all property, not of a given bequest, is meant; cf. Tit. 15.3), with Riccobono, Gnomon (1950) 157. A Severan reform opened a loophole through resort to gift: Treggiari, RM 371–374.

(33) Tit. 15.3–4. Full ownership of the one‐third was possible if the spouse remarried and produced children: Humbert, Remariage (1972) 151; Astolfi, LIP 2 17, 36.

(34) Argued from Gaius D. 22.5.5.

(35) Tit. 16.1a; Macrob. Sat. 1.16.36. If only one or two survived to the naming day but did not make it to puberty, an extra tenth was awarded for each: Tit. 15.2. The law recognizes a high rate of infant and child mortality. On the naming day and its rituals, see Rawson, “Relationships” (1991) 14.

(36) Gaius 2.111 (as supplemented) and 286a show that this was the basis for the calculation, not one‐half the estate, as with spousal decimae.

(37) Some have claimed the ius liberorum (see below) to be necessary for women, at least in some circumstances, but note Astolfi, LIP 2 24 n. 5.

(38) Iuv. 9.87–88.

(39) Jörs, V. 28–29, 46–52. Astolfi, LIP 2 307, argues that, among equally qualified recipients, preference was given to those with the greatest number of children.

(40) Gaius 2.206–208; Tit. 1.21.

(41) Tit. 17.1; Frag. de iure fisci 3; cf. Gaius 2.144.

(42) Tit. 14.

(43) For a speculative discussion of the reasons for the change, see Geiger, “Tiberius” (1975).

(44) Treggiari, RM 235. For a different view of the univira, see Krause, Witwen 1 (1994) 105–106, 157, 171. For discussion of the reasons why the law allowed these grace periods only to women, see Jörs, V. 44.

(45) On the age limits, see Gnom. Id. 24–28, with Riccobono, Gnomon 149–155; Tert. Apol. 4.8; Tit. 16.1, 3.

(46) Gnom. Id. 27–28; Tit. 16.3. The statute evidently provided for the confiscation of dowry in such circumstances: Gnom. Id. 24–26.

(47) Tit. 17.3–4. On these statutes, see Astolfi, LIP 2 46–48; Zablocka, “Modifiche” (1986).

(48) Volterra, “Conventio” (1966) 351–353, dates this to the period after the passage of the SC Orphitianum in A.D. 177. Noy, “SC” (1988), more persuasively places it in the first century.

(49) This is the SC Pegasianum (ca. A.D. 73): Gaius 2.286, 286a. See Manthe, SC (1988) 18–19, 43; Johnston, Trusts (1989) 34, 38, 42, 45–46.

(50) Paul. D. 39.6.35 pr. (other texts are given by Astolfi, LIP 2 13–14). Its exact date is unknown; it probably falls subsequent to the SC Pegasianum but not later than the mid–second century.

(51) Treggiari, RM 388, 396.

(52) Tit. 17.2 (cf. 1.21). The two views taken of this passage can, I think, be reconciled as in the text: Spagnuolo Vigorita, “Bona Caduca” (1978) 145 n. 71; Astolfi, LIP 2 252–255. A change in the rules for exceptae personae has also been attributed to this emperor: Wallace‐Hadrill, “Family and Inheritance” 74.

(53) See Spagnuolo Vigorita, Pernicies (1984).

(54) Gnom. Id. 30, 32.

(55) Gaius 3.42; see Riccobono, Gnomon 156–158. Contra Mette‐Dittmann, Ehegesetze 160; however, the Augustan tax on inheritances instituted in A.D. 6 excepted very close relatives and the poor: Dio 55.25.5.

(56) Gaius 3.42.

(57) So Nörr, “Ethik” (1972) 17–18; Astolfi, LIP 2 271 n. 103.

(58) Suet. Nero 10.1.

(59) Gell. 2.15.3–8; Ulp. FV 197.

(60) Tac. Ann. 15.19; Plin. Ep. 7.16.2; Ulp. D. 4.4.2, with Astolfi, LIP 2 299–300. On the age requirements, see Talbert, Senate 16–27.

(61) For replacing magistrates, see Tac. Ann. 2.51.1; for provincial assignments, Tac. Ann. 15.19; Fronto Ep. ad Ant. Pium 8.1; Dio 53.13.2 (before the law), with Astolfi, LIP 2 300.

(62) Among these who “count as married” are persons engaged two years or less (the maximum allowed by Augustus) and soldiers, since Claudius (see below).

(63) See the FML ch. 56 for the first provision, ch. 40(?) (= B) for the second (cf. Pap. D. 50.2.6.5), with the remarks of González, “Lex Irnitana” (1986) 209–210, 216.

(64) These rights are structured according to the facts of birth and gender in interesting and complex ways: Gaius 3.49–54; Tit. 29.6–7; Mette‐Dittmann, Ehegesetze 154–156.

(65) Three children were required at Rome, four elsewhere in Italy, five in the provinces: FV 168, 197, 198, 247. It is not certain, however, that this provision derives from the statute itself: Jörs, V. 23, 55 n. 4; see also Sirks, “Munera” (1989) 91; Parkin, Demography (1992) 116–119; Mette‐Dittmann, Ehegesetze 148. Exemption from serving as a juror evidently originated with the Augustan legislation on the civil and criminal courts: Suet. Claud. 15.1; FV 197–198.

(66) See the discussion below. Three children were enough for an ingenua, but freedwomen needed four to qualify, with the stipulation that a pars virilis be left to the patron, who otherwise would, as tutor, exercise authority over the will: Gaius 3.47; Tit. 29.3.

(67) Paul. D. 38.1.37 pr.‐1; Alex. Sev. C. 6.3.7 (a. 224). See Astolfi, LIP 2 309.

(68) FIRA 12 40.1.50–57.

(69) Dio 54.30.5. See Jörs, E. 30–32.

(70) Suet. Aug. 44.2; Mart. 5.41.8. See Rawson, “Discrimina” (1987/1991) 525–527.

(71) So Humbert, Remariage 145 n. 15.

(72) So Brunt, IM (1987) 562. See Calderini, “Riforme” (1939) 132. Mette‐Dittman, Ehegesetze 20 (cf. 30), cites precedents from the Republic. For another opinion, see Gardner, Being (1993) 126: “in practice, little concern was taken over the marriages of the lower orders, since neither politically nor privately, for such matters as property rights, was their married status particularly important.” Similarly, Fehrle, “Ehegesetze” (1984) 22; Bagnall, “Divorce” (1987) 51–52. Generalizations about the ceteri ingenui should acknowledge that this category extended to those with equestrian and decurional status.

(73) Hopkins, Death (1983) ch. 3; Dixon, TRF (1992) 123. Note the criticism of Shaw, “Believers” (1984); Jacques, “Sénat” (1990). On recruitment of municipals into the equestrian order, see Demougin, “Notables” (1983) 283.

(74) See, e.g., Kienast, Augustus (1982) 151–162; Demougin, Ordre (1988) 135–175, 286–293.

(75) For example, Augustus established a fourth decury of iudices whose members had a minimum census of HS 200,000: Suet. Aug. 32.3. A patrimony of HS 100,000 or less did not necessarily spell poverty: Humbert, Remariage 143–144.

(76) Jörs, V. 35, 55, 59. On the ius liberorum, see Jörs, V. 33–35, 54–56, 59–66; Kübler, “Ius 1” (1909); Kübler, “Ius 2” (1910); Steinwenter, RE ius (1919); Astolfi, LIP 2 78–86; Zablocka, “Ius” (1988). The honorific designation matrona/femina stolata dates from the late second century at the earliest, more probably from the beginning of the third, and has no connection with the marriage law, as once thought: Holtheide, “Matrona” (1980).

(77) If the latter are original to the law (see above). According to Jörs, V. 41–42, only the ius liberorum granted by the emperor or the ius communium liberorum (the privilege awarded to spouses who had children in common) gave libera testamenti factio, that is, freedom from the strictures of the lex Voconia. For another view, see Wallace‐Hadrill, “Family and Inheritance” 165.

(78) It is hardly coincidental that the XII Tables freed Vestals from tutela: Gaius 1.145. On the XII Tables as a model for Augustan legislation, see Bellen, “Status” (1987) 309, 323, 334. On the ideal identification of Vestals with matronae, see Purcell, “Livia” (1986) 84.

(79) Gaius 3.39–54 summarizes the rules governing patrons, their children, and freedmen where the ius was involved. One was not penalized qua caelebs when a marriage ended: Steinwenter, RE ius 1281 (cf. Jörs, V. 44). The ius exempted one's daughter from service as a Vestal: Capito apud Gell. 1.12.8.

(80) Gnom. Id. 28. It is not known for certain if four were also required of freedmen: the particular application given in Gaius 3.42 mentions only three. The requirement of three for ingenuae and four for libertinae was restated by the SC Tertullianum: PS 4.9.1, 7.

(81) Dio 55.2.5–6.

(82) See Dio 59.15.1 for Caligula's award by the Senate.

(83) The iura maritorum: Dio 60.24.3; see also Chapter 4. Caelibes and orbi could evidently receive under a soldier's will: Gaius 2.111 (as supplemented).

(84) According to Suet. Claud. 19, (male) citizens received a vacatio from the lex Papia Poppaea, females the ius liberorum. Sirks, “Favour” (1980), argues that the latter privilege was addressed only to freedwomen.

(85) Mart. 2.91.5, 92, 8.31; Plin. Ep. 2.13.8, 10.2, 94, 95; Suet. Galba 14.3; Jörs, V. 54–56; Daube, “Martial” (1976/1991); Besnier, “Pline” (1979) (Calestrius Tiro's tribunate should be that of the plebs). Cf. the ways in which Junian Latins might achieve full citizenship status: Mette‐Dittmann, Ehegesetze 194–195. On empresses, see Beaucamp, Statut 1 (1990) 274.

(86) Dio 56.10.2; cf. Plut. Numa 10.3.

(87) Astolfi, LIP 2 86–87.

(88) Augustus, evidently in the lex Papia, allowed some women to escape the strictures of the lex Voconia, which forbade persons worth the equivalent of HS 100,000 or more to institute women as heirs: Dio 56.10.2. Despite the hesitations of some (Astolfi, LIP 2 301–302; Mette‐Dittmann, Ehegesetze 153), these women were almost certainly endowed with the ius liberorum: Zablocka, “Ius” 376.

(89) Seckel/Meyer, “Gnomon” (1928) 438–439; Humbert, Remariage 147 n. 5, 153–154; Rawson, FAR (1986) 53 n. 94; Zablocka, “Ius” 376.

(90) See Sijpesteijn, “Papyri” (1965) esp. 187–188.

(91) Hon., Theod. CTh. 8.17.2 (a. 410) (= C. 8.57[58].2). The emperors effectively granted the ius to everyone: Hon., Theod. CTh. 8.17.3 (a. 410) (= C. 8.58[59].1); cf. Arc., Hon. CTh. 8.17.1 (a. 396). Iustinianus C. 6.51.1 (a. 534) abolished the regime for caduca.

(92) Constantinus CTh. 8.16.1 (a. 320) (= C. 8.57[58].1). See Evans Grubbs, “Constantine” (1993) 123; Evans Grubbs, Law (1995) 119–139.

(93) Constantinus CTh. 4.6.3 (a. 336).

(94) See Gardthausen, Augustus 1.2 (1896/1964) 897–906; Ferrero, Grandezza 4 (1906/1914) ch. 7 (cf. 21–27); Rice Holmes, Architect 2 (1931) 41–46, 151–152. A refreshing exception, certainly in his assessment of the law's effects, is Last, “Social Policy.” The moralizing approach has its latter‐day analogues: Csillag, Augustan Laws (1976); Raditsa, “Legislation” (1980). Scholarly pessimism continues as well: Fehrle, “Ehegesetze”; Dixon, TRF 80, 121, 123, 132; Evans Grubbs, “Constantine” 123. A notable exception is Eck, “Sozialstruktur” (1973) 383.

(95) Bouché‐Leclercq, “Lois” (1895), wrote against the backdrop of a debate over France's demographic policies at the end of the last century.

(96) Siber, “Ehegesetzgebung” (1939) 156, 158, 159. Siber's discussion is rich in detail and valuable for its commentary on individual provisions of the law. More obviously ideological are Oppermann, “Bevölkerungspolitik” (1936), and Riccobono, “Politica” (1937), “Opera” (1939).

(97) Field, “Purpose” (1945), and Jonkers, “Reflections” (1946) hold for demography, especially upper‐class demography; Frank, “Legislation” (1975), and Galinsky, “Legislation” (1981), for moral ideology, though conceding the two issues to be inseparable. Des Bouvrie, “Legislation” (1984), criticizes Galinsky, arguing that the purpose was limited to a restoration of civic morals. Brunt, IM 562, 565, emphasizes the demographic motive. Krenkel, “Familienplanung” (1978/1988), holds for an attempt to increase the birthrate prompted by an economic crisis. A balanced view of the legislative intent is given by Spagnuolo Vigorita, Pernicies 124–125. See also Villers, “Mariage” (1982) 294–299.

(98) Nörr, “Legislation” (1981); Wallace‐Hadrill, “Family and Inheritance.”

(99) Cf. Gaudemet, “Matrimonium” 124; Baltrusch, RM 178.

(100) Nörr, “Legislation” 358, makes this point.

(101) Liv. Per. 59; Suet. Aug. 89.2; Gell. 1.6 (who mistakenly names Metellus Numidicus, who was a censor in 102, as the author of the speech).

(102) Liv. 22.11.8, 45.15.1; cf. Gell. 5.19.11–15 and also the lex Terentia de libertinorum liberis, Plut. Flam. 18.1, with Rotondi, Leges 274.

(103) Suet. Iul 20.3; App. BC 2.10; Dio 38.1.1–3, 38.7.3, cf. 43.25.1–2.

(104) Dio 49.38.1.

(105) Dio 53.13.2.

(106) Cic. Marc. 23; cf. Leg. 3.7.

(107) See Mette‐Dittmann, Ehegesetze 19.

(108) Baltrusch, RM 14.

(109) The subject is much debated, but most accept that Augustus exercised the censoria potestas, not the censorship: Parsi‐Magdelain, “Cura” (1964); Volkmann, Augustus 2 (1969) 194–198; Pieri, Cens (1968) 183–201; Demougin, Ordre 142–150; Baltrusch, RM 172–173. He almost perfectly observed the traditional five‐year intervals between censuses: Nicolet, “Augustus” (1984) 91.

(110) Macrob. Sat. 2.4.25; cf. Suet. Aug. 39; Dio 54.16.6.

(111) As such, it serves as another reflection of what Baltrusch, RM 3 (see also 13–14), describes as “die Jurifizierung des mos maiorum.” Compare the remarks of Kaser, “Rechtswidrigkeit” (1940) 117. 139; Nörr, “Legislation” 359; Bellen, “Status”; Mette‐Dittmann, Ehegesetze 13, 14, 192–193.

(112) Argued from Gnom. Id. 29 (which, like some other provisions of the Gnomon, I assume to be empirewide in application). See Riccobono, Gnomon 155–156.

(113) Flory, “Exempla” (1984); Zanker, Power of Images (1988).

(114) See above. Other freedmen were unaffected.

(115) The law cited bestiarii and actors as ineligible; see above and Astolfi, LIP 2 309.

(116) Gnom. Id. 28; Tit. 29.2–3 (cf. 7); Astolfi, LIP 2 78. For many women, tutela was no real disadvantage: Dixon, “Finances” (1986). But the justification for this institution, the infirmitas sexus, was taken quite seriously: Dixon, “Infirmitas” (1984). Under the law, a woman might demonstrate her sense of responsibility by having the requisite number of children, thus proving the supervision of a tutor to be superfluous for her. This does not, from a Roman point of view, necessarily render the justification for tutela specious for other women, as has been argued.

(117) Astolfi, LIP 2 312.

(118) See discussion in Wacke, “Manumissio” (1989) 419; Robinson, “Status” (1987) 160; Weaver, “Children” (1991).

(119) Weaver, FC 99.

(120) Shaw, “Family” (1987) 11. Compare the incentives granted to slaves: Colum. 1.8.19; Iul.‐Ulp. D. 40.7.3.16 (evidently founded on a real case), with Scheidel, “Ius” (1994).

(121) Marci. D. 23.2.19; see Mette‐Dittmann, Ehegesetze 133–134.

(122) Iul. D. 23.2.11; cf. Iul. D. 49.15.23.

(123) Iustinianus C. 5.4.25 (a. 530); cf. Inst. 1.10 pr.

(124) Tit. 11.20, with Mette‐Dittmann, Ehegesetze 135.

(125) See Ulp. D. 24.3.64 pr.‐10.

(126) Paul. (2 ad legem Aeliam Sentiam) D. 37.14.6.4 (cf. Paul. D. eod. 15); Ter. Clem. D. 40.9.31, 32 pr. (the prohibition was taken up by the lex Aelia Sentia). It is unclear exactly what Paul, who may be quoting the statute, means by “recte,” since we know of no marriage prohibitions that applied to freedpersons independent of the ones designed for senatorials. Paul may refer to these, or perhaps he means that freedpersons are eligible for this benefit only if they respect those prohibitions laid down for the ceteri ingenui. If so, this would be another instance of the law's creation of a meritocracy of virtue.

(127) Gaius 1.29–30, 71–72, 80.

(128) See Mette‐Dittmann, Ehegesetze 179.

(129) Bouché‐Leclercq, “Lois” 275. For a similar argument, re sumptuary legislation, see Baltrusch, RM 129; re manumission laws, Mette‐Dittmann, Ehegesetze 191 (cf. 194–195).

(130) Compare Mette‐Dittmann, Ehegesetze 185 (also 29, 205), who overemphasizes the law's penalties and their implications.

(131) Salutary is the skepticism expressed by Siber, “Ehegesetzgebung” 165, and Syme, RR (1939) 445, over whether Augustus seriously believed it possible to renew the old aristocracy or win them to his side. Augustus's intentions in this regard have been too often simply assumed.

(132) Wallace‐Hadrill, “Family and Inheritance,” shows how the law was designed to cut the unmarried and childless out of the advantage they had enjoyed in Roman society and transfer this to the patres. This affected not just the recipients but the person making the will. A good example is the construction of the regime on the property of freedmen (especially Junian Latins); see above and Bouché‐Leclercq, “Lois” 271.

(133) One notes in this connection the relatively relaxed demographic standard laid down by the law. If Augustus had wanted to guarantee full replacement at the core of the elite, say a consul in one generation followed by another in the next, he might have required twice the number of children demanded for the ius liberorum: Hopkins, Death ch. 3, Shaw, “Believers”; Jacques, “Sénat.”

(134) Vell. Pat 2.89.4: “leges emendatae utiliter, latae salubriter.”

(135) Syme, RR 453–458; cf. Ferrero, Grandezza 4.285.

(136) For hostility to the law, see the evidence surveyed by Spagnuolo Vigorita, Pernicies 150–152. For contemporary opposition, particularly from elements of the equestrian order, see Mette‐Dittmann, Ehegesteze 203.

(137) See Raaflaub and Samons, “Opposition” (1990) 434–435; Mette‐Dittmann, Ehegesetze 185.

(138) The loss of authority experienced by the censorship in the late Republic is well recognized: Fantham, “Censorship” (1977) 50. The sensitivity over exercise of censorial duties that Dio puts in the mouth of Maecenas is not wholly anachronistic: Dio 52.21.3–7; cf. 40.57.3. Note that Augustus used the marriage law to create the first legal definition of the ordo senatorius: Talbert, Senate 39–47.

(139) The point is perhaps illustrated by the emperor's reliance on two unmarried, childless sponsors for the second law: Dio 56.10.3.

(140) The gap between policy, especially as represented by the law on adultery, and personal history of the princeps was obvious to contemporaries. See Suet. Aug. 69.

(141) The scene is described by Dio 54.16.3–5. Jörs, E. 35, captures perfectly the atmosphere and significance of this episode. See also Syme, RR 452, and the reference to Augustus at Ovid. Met. 15.832–839: a dubious compliment, if it is meant as one.

(142) Humbert, Remariage 177; Nörr, “Legislation” 354; Zablocka, “Ius” 381; Seiler, “Ehe” (1990) 85. See now, in general, Astolfi, LIP 2 330–331; Treggiari, RM 77–80. Brunt, IM 565 (cf. 561), is pessimistic.

(143) Nörr, Rechtskritik (1974) 146.

(144) Humbert, Remariage 170–173; Nörr, Rechtskritik 76–78, 104–106, 146; Humbert, “Individu” (1990) 180–182; Seiler, “Ehe” 82–83.

(145) Prop. 2.7 cannot in my view be relied on with certainty for evidence of such criticism. For outrage over the famous proviso of the XII Tables, see Cic. Rep. 2.63.

(146) Plin. Pan. 26.5.

(147) Nörr, “Legislation” 354. A different emphasis is offered by Siber, “Ehegesetzgebung” 163, who identifies the law's provisions as “Finanzmaßnahmen mit starkem sozialem Einschlag.” See also Wacke, “Manumissio” 414.

(148) Wallace‐Hadrill, “Family and Inheritance” 72.

(149) See Spagnuolo Vigorita, “Nota” xiii n. 10; Astolfi, LIP 2 331.

(150) See Spagnuolo Vigorita, Pernicies 126–127. I find unpersuasive the suggestion of Bénabou, “Pratique” (1990), that the law encouraged materialistic cynicism about marriage. See just Sen. Ben. 3.33.4.

(151) Eck, “Sozialstruktur” 383.

(152) See, e.g., Wallace‐Hadrill, “Civilis Princeps” (1982) 46–48.

(153) On this popularity, see Chapter 4.

(154) Wallace‐Hadrill, “Family and Inheritance” 62; Nörr, “Legislation” 358.

(155) Mommsen, Staatsrecht 3.13 (1887/1969) 429–431. He is followed by (among others) Csillag, Augustan Laws 236 n. 281; Villers, “Mariage” 295.

(156) Karlowa, RR 2 (1901) 172 (doubt had already been expressed by Jörs, E. 20, with n. 2), followed by (among others) Corbett, Marriage 30–34; Watson, Persons (1967) 32–38; Treggiari, Freedmen (1969) 82–86 (and now RM 64); Kaser RP 12 (1971) 315; Baltrusch, RM 164. Astolfi, “Endogamia” (1994) 80–81, argues a strange hybrid of the positions of Mommsen and Karlowa by supposing that invalidity at law of marriage between freeborn and freed was somehow transformed by the first century B.C. into disprezzo for the male partner when he was a member of the upper classes. This view finds no support in evidence or—in my view—compelling logic.

(157) Humbert, “Hispala” (1987).

(158) He is evidently prepared to concede them full legal effect; moreover, the descriptive terminology he employs is vague (matrimonium iniustum, illegitimum, illecitum are not necessarily synonyms): Humbert, “Hispala” 136.

(159) Liv. 39.19.5–6 (see below); Cic. Sest. 110, where Cicero attacks the credibility of a witness, L. Gellius Poplicola, who married a freedwoman. Gellius was an eques who had been stripped of the ornamenta of this order. We would expect Cicero to tax his victim with the invalidity of the marriage if this were the case: Treggiari, Freedmen 84. See also Cic. Phil. 2.3, 3.17, 13.23, and Cic. Att. 16.11.2, where Cicero denounces the marriage of Antony with Fadia, the daughter of a freedman: testimony a fortiori to the prejudice against unions with freedpersons themselves.

(160) Dio 54.16.1–2, 56.7.2; Celsus D. 23.2.23; Paul. D. eod. 44 pr.; Tit. 13.1.

(161) Watson, Persons 37.

(162) Gaius 1.18–19; Tit. 1.12–13a, with Wacke, “Manumissio”; Treggiari, RM 120.

(163) There is a huge bibliography on this topic. See Pailler, Bacchanalia (1988).

(164) Watson, “Enuptio” (1974) 332. The actual grant of the provisions was made by a plebiscite: Watson, “Enuptio” LM (1974) 7, 334.

(165) On gentis enuptio, see Watson, “Enuptio”; cf. Thomas, “Mariages” (1980) 374; Astolfi, “Endogamia.” There is disagreement as to whether the point about the husband's testament applies to all of the preceding privileges: Watson, “Enuptio” 333; Humbert, “Hispala” 140–143. On deminutio, see Peppe, Posizione (1984) 63–69. Like her lover, Faecenia was also given a large cash award: Liv. 39.19.3.

(166) Mommsen, Staatsrecht 3.13. 430 n. 2.

(167) Karlowa, RR 2.172 n. 2; cf. Karlowa, “Geschichte” (1870) 214 (215) n. 18. His conclusion is adopted by Corbett, Marriage 31–34, and, generally, by Dixon, TRF 209 n. 84. See also the “analytical” approach favored by Astolfi, “Endogamia,” 79–80.

(168) Watson, Persons 33 n. 3, followed by Villers, “Mariage” 295.

(169) Treggiari, Freedmen 85, followed by Pailler, Bacchanalia 375–376.

(170) On the evidence for marriage between freed and freeborn, see Treggiari, Freedmen 213.

(171) Contra Franciosi, Clan 4 (1989) 64, for whom the evidence “clearly” presupposes a prohibition of conubium between freeborn and freed. A similar confidence is shown by Del Castillo, “Conubium” (1994).

(172) Cic. Sest. 110.

(173) See Corbett, Marriage 32; Villers, “Mariage” 295.

(174) The marriage between the freedman Pompeius Demetrius and the prostitute Flora advanced by Treggiari, Freedmen 214, cannot support a conclusion. Flora's status is unknown (Treggiari conjectures “probably a freedwoman”). It is not clear to me from the source (Plut. Pomp. 2.2–4) that Flora and the wife of Demetrius are the same person.

(175) His father was an eques equo publico (Liv. 39.9.2), that is, a member of the 18 equestrian centuries in the comitia centuriata, which at this time included senators; see the discussion in Wiseman, “Definition” (1970). For Aebutius's background, see Pailler, Bacchanalia 355–361.

(176) Livy's description of the two protagonists has aroused a well‐founded suspicion: Watson, “Enuptio” 332, cf. 338–339. This difficulty does not affect my argument, which depends on the social prejudice reflected in Livy's account, not the literal truth of every detail it contains. For a defense of its reliability, see Rousselle, Persecution (1982) esp. 9, 19.

(177) The adjective obviously concerns her character, not birth: OLD s.h.v. 6, 7b. Compare Velleius's phrase (describing Cicero): “vir novitatis nobilissimae” (2.34.3). Nobilis was often used to describe prostitutes, and not necessarily as a compliment: Austin, Caelio 3 (1960) 89. The sense may be generalized as “above the common run of prostitutes.” Note Tacitus's transformation of the phrase into “principale scortum” (Hist. 1.13.3), more akin to the rather different type of oxymoron “meretrix Augusta” (see Chapter 5). For a different view, see Hillard, “Stage” (1992) 45, with n. 22, with whom I agree that “noble whore” is an inadequate translation of the phrase.

(178) Pailler, Bacchanalia 368 (cf. 372), argues that the sympathy for Faecenia derives at minimum from the consul Postumius, who as the chief suppressor of the conspiracy had every motive to present his informant in a good light. This seems quite possible but has no consequences for my argument.

(179) I understand Faecenia to continue as a prostitute after linking up with Aebutius; otherwise, one would expect Livy to praise her explicitly for ceasing prostitution.

(180) To this extent he acted as her pimp, a role he may have pursued more actively, as Watson, “Enuptio” 338–339, suggests. The young Sulla received an opportune bequest from a prostitute: Plut. Sulla 2.4 (“a whore, but wealthy”).

(181) Humbert claims that the relationship between Aebutius and Faecenia was concubinage: “Hispala” 132 n. 9. It is difficult to argue the point from the word concubitus (Liv. 39.11.2), which typically denotes “sexual act” or at most “sexual relationship,” nothing more, or from Livy's description of the testamentary arrangements, which is tendentious.

(182) Livy's apologetic presentation of the relationship between Faecenia and Aebutius is suited for the affair of a young man with a prostitute: the “rules” (whatever the Senate might decree) change for marriage. Given that fact, the lack of evidence for such a “happy ending” (though Faecenia did make Aebutius her heir), and the rarity of extremely status‐dissonant unions over the history of Roman matrimony, I am inclined to view the idea that Aebutius married Faecenia as a romantic fantasy. See notably Pailler, Bacchanalia 367, 369, 377–380.

(183) See the evidence reviewed above, which dates to the late Republic and the time of the marriage law itself. Livy's conservatism guarantees that his views do not simply reflect the innovations of the lex Iulia, which was almost certainly passed before he wrote book 39 of his history; for the putative date of composition, see Luce, Livy (1977) 5 n. 5.

(184) On fraus, see Krüger and Kaser, “Fraus” (1943) esp. 117–120, 134, 173–174. Greenidge, Infamia (1894) 66 n. 1, views fraus as a reference to violation of a legal norm. Cf. Humbert, “Hispala” 132–133; Humbert, “Individu” 186, who is ambivalent over whether the norm was legal or social. On ignominia, see Kaser, “Infamia” (1956) 229.

(185) So Humbert, “Hispala” 134.

(186) See Treggiari, “Ladies” (1970/1971) 198.

(187) Dio 54.16.6.

(188) Suet. Dom. 8.3.

(189) On marriage, see Val. Max. 2.9.1 (aes uxorium; cf. Plut. Camil. 2.2; Festus 519L); Cic. Leg. 3.7; Plut. Cato M. 16.1; Gell. 1.6.1–6, 4.20.3–6. On children, see Dio 43.25.2; Dion. Hal. 2.25.7; Plut. Cato M. 16.1; Gell. 4.3.2 (5.19.15: praemia patrum); Liv. Per. 59; Suet. Aug. 89.2.

(190) The language of the censors' oath was taken up by legislation pursuant to the marriage law and by private documents drawn up in connection with marriage under the Empire: Daube, Duty (1977) 24–25. Such phrasing may have been in the law itself: Ter. Clem. D. 35.1.64.1. Compare Augustus's act of reading Metellus Macedonicus's speech as the signal that a traditional line was to be pursued: Liv. Per. 59; Suet. Aug. 89.2; Gell. 1.6.1.

(191) Women were exempt from the direct moral oversight of the censors. In the phrase of Suolahti, Censors (1963) 49, “they were neither taxpayers, nor soldiers, nor voters” (a principle evidently not injured by an irregular levy: Peppe, Posizione 138–147; Dixon, “Breaking” [1985] 520); cf. Gell. 10.23.4; Schmähling, Censoren (1938) 27; Siber, RV (1952) 222; Pólay, “RM” (1971) 309–310, 315.

(192) Constantinus CTh. 8.16.1 (a. 320) (= C. 8.57[58].1); Schulz, Epitome (1926) 39; Astolfi, LIP 2 43–45.

(193) Mercogliano, “Tituli” (1990) esp. 194–195 (the article also contains a useful discussion of modern scholarly opinion).

(194) Astolfi, LIP 2 106, notices “eas” missing before “quae” in the first paragraph, as well as “fecerit” for “fecerint” (the lex lulia et Papia had “facit fecerit”). Add “eam” before “quae” in the second paragraph.

(195) Astolfi, LIP 2 106, on the basis of Paul. D. 23.2.44 pr.

(196) Paul. D. 23.2.44 pr.; on the problem in general, see Astolfi, LIP 2 98–102. Chastagnol, Sénat (1992) 175, argues despite this evidence that the marriage prohibitions did not apply to female members of the senatorial order until the reign of Marcus Aurelius.

(197) Ulp. D. 23.2.43.10–13. Talbert, Senate 450, tentatively identifies this SC as the Larinum SC, which at the time he wrote had been wrongly conflated with the Vistilia SC: McGinn, “SC” (1992). All the same, an early date, especially in Tiberius's reign, seems likely. Biondi, “SCC” (1946/1965) 318, posits an Augustan date.

(198) For a detailed discussion, see Astolfi, LIP 2 103–108, who concludes that both the deprehensa and the woman condemned for adultery were forbidden to all ingenui by the Augustan law itself.

(199) Lenel, Pal. (1889/1960) 2 col. 940 n. 4, followed, for example, by Falcão, Prohibiciones (1973) 16, prefers to emend the Digest passage to reconcile it with Tit. 13.2, so that actors and actresses are forbidden to all freeborn Romans. Cf. Mette‐Dittmann, Ehegesetze 146 (cf. 167, 185), who accepts a broad ban on marriage with actresses out of an assumption that the marriage prohibitions coincided with exemptions provided under the Augustan adultery statute. She describes the exempted women as feminae probrosae; see Chapter 4.

(200) Astolfi, LIP 2 106–108.

(201) Paul. D. 23.2.44 pr. Gaudemet, “Matrimonium” 126, (citing Iustinus C. 5.4.23 [a. 520–523]), argues that the compilers suppressed a prohibition against the marriage of actresses and ingenui; cf. Karlowa, “Geschichte” 214–215; Castelli, “Concubinato” (1914/1923) 151; De Robertis, “Condizione” (1939/1987) 185 (cf. 181–182); Falcão, Prohibiciones 21–22. This theory explains neither why the prohibition to senatorials remains in the Digest nor why it alone is repeated in both categories in the text of the Tituli.

(202) Paul. D. 23.2.44 pr.

(203) On this text, see Chastagnol, “Femmes” (1979) 10–11; Raepsaet‐Charlier, “Clarissima femina” 192–194; Astolfi, LIP 2 98–102. Raepsaet‐Charlier and Astolfi (contra Chastagnol) take the entire fragment as deriving from the lex Iulia et Papia—rightly, in my view.

(204) Ulp. D. 23.2.43 pr.‐9.

(205) Mommsen apud Karlowa, “Geschichte” 216–217; Greenidge, Infamia 171 n. 1. Nardi, Posizione (1938) 21 with n. 1, improves the phrase on the basis of Ulp. D. 23.2.43 pr.‐5. Solazzi, “Glossemi” (1939/1963) 183, and Astolfi, LIP 2 107, accept Mommsen's more conservative version “item…facientem <et>” (after “ducere”). Given the state of the text there is little to choose. Schulz, Epitome 39, holds the phrase to be a postclassical gloss, but Nardi, Posizione 20 n. 2 (following Corbett) points out that the section of Marcellus's commentary devoted to the lex Iulia and Ulpian's commentary on the same both connect prostitutes with the statute (see Chapter 4).

(206) For a dissent, see De Robertis, “Condizione” 182 n. 1.

(207) See Astolfi, LIP 2 57.

(208) Tab. Lar. 16, on which see Chapter 2.

(209) The item is evidence for the expansion, in postclassical times, of the legal conception of “prostitute.” See McGinn, “Definition” (forthcoming).

(210) For a medieval echo of the ban on marrying prostitutes, see Otis, Prostitution (1985) 16.

(211) Some follow Huschke and insert “ingenuus” for this word (Nardi, Posizione 25; Solazzi, “Glossemi” 183 n. 5), a reasonable emendation.

(212) So Astolfi, LIP 2 120.

(213) See above.

(214) See esp. Astolfi, LIP 2 164–186.

(215) Technically, this point is the fruit of interpretation, not established by the law itself (“placet”). But the principle that those who violate the statute should not enjoy its benefits is established by the law itself, so that it seems opportune to include it here. “Quae specialiter prohibentur” in Dioclet., Maxim. C. 5.4.15 (anno incerto) refers to the manumissor, not the liberta, so that this text has nothing to say on the prohibition against marrying prostitutes (contra Astolfi, LIP 2 131).

(216) Tit. 11.20.

(217) As often, the prostitute bears a “significant” name: “lascivious” (LSJ s.h.v.).

(218) Both are spoken of as deceased by Quintilian elsewhere (IO 10.1.119). The Institutio Oratoria dates from the mid‐90s: Conte, LL (1994) 759. Other evidence suggests that both men lived on well into the reign of Domitian: Jones, DSO (1979) index s.h.v. Spatale herself is the subject of an epigram by Martial (2.52). This tribute to the size of her breasts was published c. 86: Conte, LL 759. A date between 85 and 90 for the lawsuit cannot be ruled out; see Chapter 4.

(219) So Astolfi, LIP 2 66, following Hartmann, “Incapacität” (1866) 221–222; Jörs, V. 64; Solazzi, “Caduca” (1942/1963) 334.

(220) Tit. 15.1. The spouse was eligible for other benefits too; see below.

(221) Hartmann, “Incapacität” 222.

(222) Solazzi, “Caduca” 334–351.

(223) Wallace‐Hadrill, “Family and Inheritance” 75, has a hybrid version, identifying Spatale as “a mistress with children of her own.”

(224) Astolfi, LIP 2 66.

(225) In Astolfi's view, these women were deprived by Domitian of complete capacity. See Chapter 4 for a full discussion.

(226) The word amator is used of a prostitute's clients: Plaut. Most. 286; Cic. Cael. 49. On “respectable” concubinage, see Treggiari, “Concubinae” (1981); McGinn, “Concubinage” (1991).

(227) Meretrix is possible as a term of abuse, but scortum and other terms were favored: Adams, “Words” (1983). Moreover, the word, when employed as a term of abuse, typically means “woman of loose morals” or the like, without a specific referent such as “concubine.”

(228) On this, see Spagnuolo Vigorita, Pernicies 126–127; Astolfi, LIP 2 338–343.

(229) Astolfi, LIP 2 66.

(230) Astolfi, LIP 2 34.

(231) So Nörr, “Legislation” 358. Alternatively, we may suppose that the quarta was regulated in a manner similar to the one‐half capacity of orbi, so that one‐fourth of an estate might be left them as a licita quantitas: Astolfi, LIP 2 29–30.

(232) Even so, the equation with the minimum laid down for the Falcidian heir shows that the quarta was far from being considered a trivial amount. On this law and its quarta, see Voci, DER 22 (1963) 755–789.

(233) Gnom. Id. 6. See Reinach, “Code 1” (1919) 590–591; Riccobono, Gnomon 118–119.

(234) Besnier, “Lois” (1949) 114.

(235) See Wallace‐Hadrill, “Family and Inheritance.”

(236) Ulp. D. 25.7.1.2, Ulp D. 48.5.30(29).1. See Chapter 5.

(237) See Ulp. (1 ad legem Iuliam et Papiam) D. 23.2.43 pr.: “palam quaestum facere”, 2: “…palam corpore quaestum facere.” Paul. (2 ad legem Iulia et Papiam) D. eod. 47: “quae corpore quaestum…fecerit.” Tit. 13.1: “corpore quaestum facientem.” PS 2.26.4 (= Coll. 4.12.3): “…qui corpore quaestum faciunt.” See also the phrase of the Tabula Heracleensis (TH), given below. Ovid may poke fun at the phrase with his description of the soldier at Am. 3.8.20.

(238) Astolfi, LIP 2 103, prefers the order “mulier quae palam quaestum corpore fecit,” but this is found in only one legal passage, whose text is disturbed: Marci. (12 inst.) D. 25.7.3 pr. (Given the wording of Paul. D. 23.2.44 pr., it is also doubtful that mulier appeared in the law.)

(239) See above. The jurists make no mention of male prostitutes and pimps in the context of the lex Iulia et Papia, for reasons that are discussed in Chapter 4.

(240) See, for example, the phrase from the TH quoted below in the text.

(241) Ulp. (1 ad legem Iuliam et Papiam) D. 23.2.43.4.

(242) It is worth noting that the jurists restricted the application of the provision concerning, not actors, but their children, despite the less generous wording of the law: Pomp.‐Paul. D. 23.2.44.5. See the acute observations of Vonglis, Loi (1968) 124–126, on this passage.

(243) TH 122–123. See Chapter 2. The phrase quaestum facere had long been associated with prostitutes: Plaut. Poen. 1140; Ter. Heaut. 640 (cf. Andria 79).

(244) Compare the usage in the edict discussed in Chapter 2. The aim, not always realized, was to avoid equivocation, confusion, and undesirable interpretations; for a good discussion, see Daube, Forms (1956) esp. 6, 45–46; Vonglis, Loi 61–63; also Bauman, “Leges” (1980). The circumlocution may also have been considered more dignified. Compare bestiarius, which never appears (in Latin) in the Digest. In its place appear phrases such as “qui operas suas ut cum bestiis pugnaret locaverit.”

(245) Compare the situation of praecones discussed in Cic. Fam. 6.18.1 for an imperfect, yet suggestive, parallel; see Chapter 2.

(246) The use of the future tense by the lex Iulia de vi, though itself perhaps an error, may signal a similar purpose; see Chapter 2.

(247) Dio 56.10.1, whose account is muddled, registers a grace period of one year in connection with this statute.

(248) Astolfi, LIP 2 157–163.

(249) Tit. 17.1, with Jörs, V. 48.

(250) FIRA 12 40.1.

(251) Jörs, E. 57–60.

(252) See Chapter 4.

(253) Cic. Verr. 2.1.107–108.

(254) See Chapter 2.

(255) Its association with prostitutes predates Augustus. Cato employs it in his speech De Re Floria (Gell. 9.12.7): “qui palam corpore pecuniam quaereret.” The meaning approximates that in the lex Iulia. The same is true of its use by Cicero at Red. Sen. 11 and Cael. 38, 49.

(256) See the OLD s.h.v. 1a and 1c: “explicitly, openly.”

(257) See Ulp. (1 ad legem Iuliam et Papiam) D. 23.2.43.6.

(258) See Chapter 2.

(259) [Iul. (1 ad edictum)] D. 3.2.1.

(260) Wiseman, New Men (1971) 53.

(261) Prop. 2.7 may complain of the attempted establishment of a set of marriage prohibitions in a measure that preceded the lex Iulia de maritandis ordinibus by approximately a decade, but this is not certain; see above.

(262) I find no evidence to support the assertion that many senators were disposed to make marriage alliances with wealthy freedpersons: Weber, “Freigelassene” (1988) 259–260.

(263) Humbert, Remariage 60.

(264) For these results, see Raepsaet‐Charlier, “Vie” (1994) 179: “on peut donc parler d'une certaine ‘endogamie sénatoriale.’ ” Raepsaet‐Charlier, “Vie” 181, reveals interesting differences occurring over time, with a relatively more endogamous pattern shown in the very early Principate. See 187–188 for the distinction in practice between descendants of senators and novi.

(265) If one classifies as “senatorial” those women with a brother who is a new senator, the percentages change to 73% and 27% respectively: Raepsaet‐Charlier, “Vie” 179.

(266) Raepsaet‐Charlier, “Vie” 179 n. 80, cites only three examples of marriage between members of the senatorial order and persons of very low status. Only one of these involves a freedperson (see below).

(267) See Ulp. D. 23.2.31.

(268) Raepsaet‐Charlier, “Egalité” 463; Raepsaet‐Charlier, “Vie” 192. Cf. Chastagnol, Sénat 176.

(269) So Raepsaet‐Charlier, “Clarissima femina” 192 (193) n. 23. See Weaver, FC 171, for other dubious cases.

(270) Marci. (4 regul.) D. 23.2.58: “A divo Pio rescriptum est, si libertina senatorem deceperit quasi ingenua et ei nupta est.…”

(271) See Dixon, TRF 82, with 91, 93.

(272) On marriages with prostitutes, see below and Chapter 4.

(273) Beaucamp, Statut 2 (1992) 20.

(274) Demougin, Ordre 657–676.

(275) See Demougin, Ordre 668–669.

(276) Quint. IO 11.1.82: “sed non quae in foro non possit accidere.” Quintilian is of course good evidence for trial practice: Crook, Advocacy (1995) 166, 169–171.

(277) Compare the theme of Sen. Contr. 2.4, and see Gell. 2.7.18–20.