Introduction

For Romans the family was the nucleus of society, the producer of citizens and soldiers and preserver of ancestral cults and wealth. The familia was an autonomous unit headed by the paterfamilias, on whom Roman law and mores had bestowed remarkably extensive control over all under his potestas (power): his slaves, his legitimate children, even after they had reached adulthood, and in the earlier period of Roman history, his wife. In theory this power even encompassed the so-called ius vitae ac necis (or ius vitae necisque), the “right of life and death” over his children, although scholars today disagree about the basis of such a power in law (Harris 1986; Shaw 2001: 56–77; Capogrossi Colognesi 2010: 164–168). Less dramatic, and much more frequent, manifestations of patria potestas included the paterfamilias’ legal control over all the possessions of those under his power, and the legal requirement that iustum matrimonium, legitimate marriage, have the consent of the paterfamilias of both partners. The unusual extent to which a paterfamilias could control the lives of even his adult children impressed both outsiders and Romans themselves: “for there are almost no other people who have the sort of power over their own children as we do,” the jurist (legal expert) Gaius remarked in the second century CE (Gaius, Institutes 1.55). Such extensive domestic control, however, was bound to collide with the growing powers of the Roman state in the imperial period, particularly when the emperor himself was styled as pater patriae, the “father of the fatherland.” Stories (as relayed in the works of later writers) of Roman fathers of the republican period who had put their own sons to death for treason or cowardice, extolled men who subordinated their paternal affection and private needs to the greater public concern of the state (Lucius Junius Brutus, founder of the Republic: Livy 2.4–5; cf. Valerius Maximus 5.8; Harris 1986: 82–86 and 90).

The most sweeping intrusion of the pater patriae into the affairs of the paterfamilias was Augustus’s legislation on marriage and adultery: the lex Julia de maritandis ordinibus (Julian Law on the Marrying of the Social Orders) of 18 BCE, modified somewhat by the Lex Papia Poppaea (Papian-Poppaean Law) of 9 CE, and the lex Julia de adulteriis (Julian Law on Adulteries), also of 18 BCE. The marriage laws (known to later legal writers as the lex Julia et Papia) mandated that male and female citizens be married and producing children during their most fertile years and penalized those who did not comply with loss of the right to inherit from anyone outside the sixth degree of relationship (Treggiari 1991: 60 –80). With the adultery law the state entered the bedroom: adultery (defined as sexual activity between a married woman and someone other than her husband) became a crimen publicum, a “public crime” to be tried by a standing court and punished with exile and partial confiscation of property (Treggiari 1991: 277–98; McGinn 1998: 140–247). Moreover, the now public nature of sexual offenses meant that the right of accusation against accused adulterers was open to all male adult citizens, even those with no bond of kinship or marriage with the accused. The right of extranei (those outside the family) to bring an adultery accusation was abolished by Constantine (see Evans Grubbs 1995: 208–16), but otherwise Augustus’ adultery law continued throughout late antiquity, as the its inclusion in the Justinianic corpus (D. 48.5; CJ 9.9) shows.

Augustus’ legislation was intended to promote marriage and repress extramarital sexual activity by married women. Such goals were firmly in keeping with the widely acknowledged purpose of Roman marriage: the production of legitimate children who would be the heirs of their father and perpetuate his family name (nomen). Only children born in iustum matrimonium would come under the extensive powers of patria potestas; they inherited automatically from their father as sui heredes (“his own heirs”) if he died intestate and were entitled to at least one-fourth of his estate if he left a will. In addition to taking his nomen, they would be responsible for maintaining his cult. But what about illegitimate children, those who were not born within a legally recognized marriage? By definition, illegitimate children had no father and therefore did not come under patria potestas, although slaveborn children (all of whom were ipso facto illegitimate, since slaves legally had no kinship relations) would come under the power of their master, who might also be their biological father. Illegitimates took the legal status of their mother (D.1.5.19, Celsus).

Naturales

Roman legal sources use the term naturales for the offspring of a master and his slavewoman, or for the child of a free man by someone else’s slave, or for the child of a freedman born when both he and their mother were still enslaved and therefore unable to form a legitimate marriage (Hermann-Otto 1994: 83–84). Many slaveborn naturales were the products of unions between slaveowners and their female slaves. PreChristian Roman society had neither religious nor racial scruples against sexual exploitation of slaves (male as well as female) and master-slave sex was unproblematic, as long as the master was male (Evans Grubbs 1993). So there must have been many, many slaves whose father was the owner of their mother (See Scheidel 2009: 284–307; also Betzig 1992). Such children could be the product of rape or sexual exploitation, and the owner/father might have little or no direct contact with his slave children and see them and their mothers solely as marketable objects.

Adoption

A man might even adopt his children by his slavewoman after he had freed them, although this would be unlikely – and socially inappropriate – if he were of elite status or already had children by a legal marriage as heirs. Adoption (or rather, in this case, adrogation) was a formal, public recognition of the membership of the adoptee in the free citizen community and his (or, much less likely, her) status as heir and carrier of the family nomen. On Roman adoption, see Gardner 1998: 114–208; on adoption of freedman, Gardner 1989.

Spurii et nefarii?

Incestuous unions are “unholy” or “sacreligious”:

they are nefas, against the divine order of things, and in need of religious expiation (piaculum) (Moreau 2002: 41–59). The Roman definition of incest included unions between parent and child (or grandparent and grandchild), between siblings or half-siblings (even if one was illegitimate; see above); step-parents and step-children, and parents and adopted children (Gaius, Institutes 1.59 and 1.61). Marriage between step-siblings was allowed: D.23.2.34.2 (Papinian). For a thorough treatment of the law of incest, see Puliatti 2001. Marriage between aunt and nephew and between maternal uncle and niece was incestuous under Roman law; marriage to a brother’s daughter had once been also, but in 49 CE the emperor Claudius had the law changed so that he could marry his niece Agrippina. Both Tacitus and Suetonius note that despite Claudius’ encouragement, almost no other Romans responded to the dispensation of the new law, indicating that the emperor had changed the law, but not mores (Gaius, Institutes 1.62; Tacitus, Annales 12.6–7; Suetonius, Divus Claudius 26.3). In the first two centuries of the Empire, those who were not Roman citizens could continue to follow their local marriage practices, which might run counter to Roman ideas of incest. For instance, marriage between siblings or half-siblings was not uncommon in some areas of the eastern Mediterranean under Roman domination. In Roman Egypt, considerable evidence for brother-sister marriage, including between full siblings, can be found in census returns, private correspondence, and even a record of a divorce agreement between two formerly married siblings.

The literature on close-kin marriage in Egypt is vast:

see Huebner 2007 and Rowlandson and Takahashi 2009 for bibliography. For brother-sister marriages in the census returns, see Bagnall and Frier 1994, 127–34. P. Kronion 52 records the divorce of a sibling couple (trans. in Rowlandson 1998: 130–131). Remijsen and Clarysse 2008 and Rowlandson and Takahashi 2009 (who in clude an Appendix of definite and probable examples) argue against the conclusion of Huebner 2007 that almost all of the apparent cases of sibling marriage in Roman Egypt are really instances of adoption and marriage to the adopter’s biological child. It is certainly possible, however, that some of the cases of sibling marriage in the papyri do reflect a strategy of adoption and marriage; see further Huebner 2013.