But the state of things required in his judgment, not only a religious revival, but more stringent laws. Horace again reflects his master’s views in the making, before they find expression in act. The sixth ode of the first book (written about B.C. 25) joins to the necessity of a restoration of the temples and a return to religion a warning as to the relaxation of morals, tracing the progress in vice of the young girl and wife, with the shameful connivance of the interested husband, and exclaims: “Not from such parents as these sprang the youth that dyed the sea with Punic blood, and brake the might of Pyrrhus and great Antiochus and Hannibal, scourge of God.” Again in the twenty-fourth ode of the same book, also written about B.C. 25, he warmly urges a return to the old morality, and promises immortality to the statesman who shall secure it: “If there be one who would stay unnatural bloodshed and civic fury, if there be one who seeks to have inscribed on his statue the title of ‘Father of the Cities,’ let him pluck up heart to curb licentiousness. His shall be a name for the ages!” And when Augustus has acted on the resolution, to the formation of which the poet was privy, he tells him ten years later that by his presence family life is cleansed from its foul stains, that he has curbed the licence of the age and recalled the old morality.[303] This he would represent as the result of the Emperor’s legislation, the lex marita of the secular hymn.
It was after his return from the East in B.C. 19 that Augustus first received censorial powers for five years. Whether this amounted to a definite office—a præfectura moribus or regimen morum, as Dio and Suetonius assert—does not much matter. The experiment of appointing censors in the ordinary way had been tried in B.C. 22 for the last time and had not been successful, and the censoria potestas now given to Augustus practically put into his hands that control over the conduct of private citizens which the censors had exercised by their power of inflicting “ignominy” upon them. The ancient censorial stigma had been applied to irregularities in almost every department of life, but it depended on the will of the censors themselves, not on laws. Feeling now directly responsible for the morals and general habits of the citizens he began a series of legislative measures designed to suppress extravagance and debauchery, and to encourage marriage and family life, which would have permanent validity. He believed in externals, even trivial ones, as indicating a growing laxity; making, for instance, a point of men appearing in the forum and on official occasions in the old Roman toga. The lighter and more comfortable lacerna or pallium was as abominable in his eyes as a suit of flannels would seem to a martinet of to-day in the Park or on parade.[304] Before all things the Romans were to be national, in dress no less than in other respects.
Sumptuary laws.
But the failure which always attends such regulations was no less inevitable in regard to the first of his new reforming measures, his sumptuary laws, regulating the exact amount that it was legal to spend on a cena in ordinary days, on festivals, and at wedding feasts, or the repotia which the bridegroom gave on the afternoon following his marriage. This was no new thing. It had been tried at various times throughout Roman history. Beginning with a very ancient law regulating the amount of silver plate each man might legally possess, the rent he might pay for his house, and the provisions of the Twelve Tables, we have laws in the third and second centuries B.C., limiting the cost of dress and jewels for women, the number of guests that might be entertained at banquets, and the amount that might be spent upon them. Sulla had also a sumptuary law, among his other acts, of the same kind. But Iulius Cæsar had gone farther than any one in B.C. 46. He had not only regulated the cost of furniture and jewels, according to the rank of the owners, and the amounts to be spent upon the table, but he had sent agents into the provision markets, who seized all dainties beyond the legal price, and even entered private houses and removed dishes from the table. Of course such measures were not only annoying, they were ineffective also. Directly he left Rome the rules were neglected. Our own Statute Book has many laws of the same kind, which rapidly became dead letters. Nearly the one and only permanent effect of the old sumptuary laws had been to create a sentiment against large and crowded dinner parties as vulgar.[305] Nor did Augustus succeed much better. Towards the end of his reign he issued an edict extending the legal amount which might be spent on banquets, hoping to secure some obedience to the law. But nothing that we know of Roman life afterwards leads us to think that this form of paternal government—though quite in harmony with Roman ideas—ever attained its object. Human nature was stronger than political theory.
The Iulian laws of marriage, adultery and divorce.
Nor were the laws, carried about the same time,[306] on marriage, divorce, and kindred subjects, much more effective. In part they re-enacted rules which had always been acknowledged and always disobeyed, and so far as they did not punish a crime, but endeavoured to enforce marriage, they were continually resisted or effectually evaded. They consisted of a series of enactments—whether we regard them as separate laws or chapters in the same law—for restraining adultery and libitinage, for regulating divorce, and for encouraging the marriage of all ranks.[307] They were passed in B.C. 18-17, and were supplemented by a law of A.D. 9, called the lex Papia Poppæa. The text of none of them survives, and we have to trust to scattered notices in the later legal writers. They may be roughly classed as restrictive, penal, and beneficiary. In the first may be placed the regulation that no senator or member of a senatorial family might marry a freed-woman, courtesan, actress, or the daughter of an actor; though other men might marry a freed-woman or even emancipate a slave in order to marry her. And under the same head came the regulations as to divorce. The legal doctrine appears to have been that marriage contracted with the old religious ceremony called confarreatio was indissoluble, except in the case of the wife’s adultery, on whose condemnation to death the execution was preceded by a solemn dissolution of the marriage or diffareatio. It was also a common belief that no divorce had ever taken place at Rome until that of Carvilius in B.C. 231. Yet the laws of the Twelve Tables (B.C. 450) contained provisions as to divorce, so that it had certainly been known before; and perhaps the truth was that Carvilius was the first to divorce his wife without any plea of adultery, in which case he would have to give security for the repayment of her dowry. Since that time the religious confarreatio had become extremely rare. Both men and women avoided an indissoluble tie. The fashion was to be married sine manu, that is, without the woman passing into the manus or power of her husband. She still remained subject to the patria potestas, or to that of her guardian, or was sui iuris according to her circumstances at the time. Such marriages could be dissolved by either party, and without charge of misconduct. Public opinion seems to have restrained both men and women for some time from taking advantage of their freedom, but its force steadily diminished, till towards the end of the republic divorce became so common as to provoke little remark. It was an arrangement—as in the case of Augustus and his family—governed almost entirely by considerations of convenience or advantage, and generally left all parties concerned on a friendly footing. This of course was not always the case when the divorce was the result of misconduct, or at least of misconduct on the wife’s part, nor even if it resulted from incompatibility of temper or money disputes, which left a feeling of soreness behind them. It was a system—however disastrous to family life—too deeply rooted for Augustus to attempt to change it, even if he had wished to do so. His law seems to have dealt only with certain formalities and conditions of divorce—such as the necessity of having witnesses, and in case of a charge of misconduct a kind of family council or court of inquiry—not with the freedom of divorce itself, except that in the case of a freed-woman, she was prevented from divorcing her husband or marrying again without his consent. That, however, rested on the idea of the rights of a patronus rather than on the sanctity of marriage. Otherwise the law chiefly dealt with questions of property, restraining the husband from alienating his wife’s estate without her consent, and re-enacting (with what modifications we do not know) the provisions for the repayment of dowry.
Penalties (1) for adultery or seduction.
The penal enactments affected (1) those guilty of adultery or seduction (stuprum), and (2) those who remained unmarried or without children. In adultery both parties were punished by transportation (deportatio in insulam) and a partial confiscation of property. A husband’s unfaithfulness incurred no penalty except that he lost all claim to retain any part of the wife’s dowry, even for the benefit of children. But the old barbarous principle of the injured husband’s right to kill both wife and paramour, if detected by himself, was retained, though under certain conditions. If he allowed the guilty wife to remain with him, he was bound to release the man; and if he connived at the adultery for gain, he was subject to a fine. Stuprum was formerly defined as the forcible detention of a free woman for immoral purposes, and could be punished by flogging or imprisonment. Under the Iulian law it was extended to the seduction of an unmarried woman or a widow who had been living chastely.
(2) For remaining unmarried.
The penalties upon those who remained unmarried between certain ages were in the form of a direct tax or of certain disabilities. The former, under the name of uxorium, was of great antiquity, and had been levied by the censors of B.C. 404, but it was light and intermittent; the Iulian law revived and increased it. The disabilities were that an unmarried man between the legal ages could not take a legacy from a testator not related to him within the sixth degree, unless he married within a hundred days of being informed of the legacy. This was extended by the lex Papia Poppæa (A.D. 9) to the childless, who could only take half any legacy from a testator unconnected with them within the sixth degree. One child saved a man from coming under this law, three children a freeborn woman, four a freed-woman. Again, a husband and wife who were childless could only receive a tenth of a legacy left by one to the other, though, if there were children by another marriage, a tenth was added for each, or if they had had children who had died. For all alike there were numerous exemptions founded on absence from home on public service, age, or ill-health; and a certain time of grace (vacatio) was given between the attainment of the legal age and the actual marriage, or between two marriages, or after a divorce.