If we examine our question in connection with marriage among the ancient Romans we find a curious system. First, there were certain conditions to constitute connubium, without which no legal union could be formed. There was only connubium between Roman citizens[34]; there was none where either of the parties possessed it already with another; none between parent and child, natural or by adoption; none between grandparents and grandchildren; none between brothers and sisters, of whole or half blood; none between uncle and niece, or aunt and nephew: though Claudius legalized it by his marriage with Agrippina, the practice never went beyond the example. Unions of this kind taking place were void, and the father could claim no authority over his children. Mutual consent was essential—of the persons themselves, and of their friends. One wife only was allowed, though marriage after full divorce was permitted.
There were two kinds of marriage,—that cum, and that sine conventione. In the former the wife passed into her husband’s family, and became subject to him; in the latter she abdicated none of her old relations, and was equal to her husband. There was no ceremony absolutely essential to constitute a marriage. Cohabitation during a whole year made a legal and lasting union; but the woman’s absence during three nights annually released her from the submission entailed by the marriage cum conventione. Certain words, also, with religious rites, performed in presence of ten witnesses, completed a marriage; but certain priestly offices, such as those of the flamen dialis, could only be performed for those whose parents had been wedded in a similar way[35]. The sponsalia, or contracts between the man and his wife’s friends, were usual, but not essential, and could be dissolved by mutual consent. The Roman idea of marriage was, in a word, the union of male and female for life, bringing a community of fortune, by a civil, not a sacred contract. Yet from the ceremonies generally observed, it is evident that an idea, though unrecognised, of a religious union, existed among the Romans in their more pious age.
With respect to property, its arrangement depended on settlements made before hand. Divorce was at one time procured by mutual consent, though afterwards it became more difficult, but never impossible.
There was in Rome a legal concubinage between unmarried persons, resembling the morganatic or “left-handed” marriage, giving neither the woman nor her children any rights acquired from the husband. Widowers often took a concubine, without infamy[36].
The law of Romulus, enacting that no male child should be exposed, and that the first daughter should always be preserved, while every other should be brought up, or live on trial, as it were, for three years, has misled some writers into giving the Romans credit for a loftier humanity. No parent, it is argued, would destroy a three years’ old child. Nevertheless, it is certain that, in the imperial age, at least, infanticide and child-dropping were frequent occurrences. Deformed or mutilated infants, having been shown to five witnesses, might be destroyed at once. The Milky Column, in the Herb-market, was a place where public nurses sat to suckle or otherwise tend the foundlings picked up in various parts of the city. In the early Christian age it was a reproach to the Romans that they cast forth their sons, as Tertullian expresses it, to be picked up and nourished by the fisherwomen who passed. Mothers would deny their children when brought home to their houses. Some strangled them at once. Various devices were adopted among them, as among other nations of antiquity, to check the overflow of population, as well as to hide the crimes of the guilty. Thus the Phœnicians passed children through fire, as a sacrifice; the Carthaginians offered them up at the altar; the Syrians flung them from the lofty propylæa of a temple[37]. One observation, however, applies to the Romans, and, we believe, to every other nation, savage or civilized, in every age of the world—exceptions being invariably allowed. Cruel as may have been the laws sanctioning infanticide, when once the child was received into the bosom of the family it was cared for with tenderness, and, generally, with discretion. It is not sentiment, but justice, which induces us to say that the mother, having once accepted her charge, has seldom been guilty of wilful neglect. The abandoned and dissolute, especially in those societies where fashion has made the performance of maternal duty ridiculous, if not disreputable, have consigned their offspring to others; but women in their natural state usually fulfil this obligation.
In Rome, from various causes, public decency was, at least during the republican period, more rigidly observed, and licentiousness less common and less tolerated than in Sparta or even the later age of Athens. None of its institutions rivalled the dissolute manners of Crete or Corinth. One cause of prostitution being less common was the licence of concubinage, which was to the rich a preferable and a safer plan of self-indulgence. It existed, however, in the State, and employed a considerable class of women, though we are told the accomplished prostitute was known as a Grecian import. Nevertheless, the frequent allusions of the laws to these women prove that they formed no insignificant element in the society of the capital.
ROMAN BROTHEL.—IMPERIAL ERA. (Dufour.)
Lenocinium, or the keeping of female slaves to hire them out as prostitutes for profit, was an offence rather against the moral than the written law of Rome. The lenones, in many instances, kept brothels or houses open for the trade of prostitution. They purchased in the market handsome girls, for each of whom a sum equal to about 250l. of English currency was given—from which we infer that the rates charged in the superior establishments of this kind were somewhat high. Free women were also kept for the same purpose, upon a mutual agreement. The practice was not actually interdicted, but branded as infamous by the prætor’s declaration. No woman, however, whose father, grandfather, or husband had been a Roman knight was allowed to prostitute herself for gain. The independent prostitutes, or those who occupied houses of their own, were compelled to affix on the door a notice of their calling, and the price they demanded. They were also required, when they signified to the prætor, as they were bound to do, their intention of following this disgraceful occupation, to drop their real names, which they resumed whenever they abandoned that mode of life. Cato, the censor, recognised prostitution as Solon did, and Cicero declared no State ever existed without it. Notwithstanding this, the occupation of the prostitute was, in the republican age, so infamous that a comparatively small class practised it; but under the emperors it grew so prevalent, that during the reign of the few of them who even pretended to morality, the severest edicts appeared called for against it. Caligula, however, made a profit from the system. The lenones were subject to a tax, which fell, of course, as in Athens, upon the prostitutes themselves. No check, therefore, was offered by him to prostitution. But Theodosius and Valentinian sought, by formidable penalties, to prevent parents from prostituting their children, and masters their slaves, for gain. Lenocinium was interdicted under pain of the scourge, banishment, and other punishments. In one age public opinion, in the other the whip, held guardianship over the morals of the State.
The owners of houses who allowed lenocinium to be carried on on their premises were liable to forfeit the property, besides paying a price of ten pounds weight of gold. Such edicts, however, only drove immorality into the dark. When the prostitutes could not find enough brothels to harbour them—and, indeed, at all times the poorer sort were excluded from these large establishments—places of refuge were still open. The fornices of Rome were long galleries, divided into a double row of cells—some broad and airy, others only small dark arches, situated on a level with the street, and forming the substructure of the houses above. Some of them, as those of the Formian villa of Cicero, were tastefully stuccoed, and painted in streaks of pink, yellow, and blue. In these long lines of cells the prostitutes of the poorer class were accustomed to assemble, and thence was derived the ecclesiastical term fornication, with its ordinary English meaning. Allusions to this practice occur in the works of Horace and Juvenal, as well as other writers. Some of the arches appear to have been below the surface of the ground, as we find a decree of Theodosius against the subterranean brothels of Rome.