From Good Goddess to Vestal Virgins: Sex and Category in Roman Religion (14 page)

importantly superseded the bond between mother and child. Chil- dren born in
iustum matrimonium
were not only subject to their father
’
s
potestas,
they
—
the male children at any rate
—
became links in the chain of agnatic filiation which was held together by the transmission of
patria potestas
from generation to generation.
61
This agnatic line was the Roman
gens
.

Legal paternity was thus artificial, a fiction.
‘
The
paterfamilias,
or father of a family did not owe the appellation to the fact of his hav- ing fathered legitimate offspring. It was possible to have children without being a
pater familias
[i.e. if your own
paterfamilias
was alive both you and your children
—
by a
matrona
—
would have been in his
potestas,
and you would not yourself be a
paterfamilias
]. Con- versely, it was possible to be awarded the title
paterfamilias
without either engendering or adopting a child [if you were a man, the authority of
patria potestas
devolved on you when your
paterfamil- ias
died whether or not you had children].
’
62
The mythological correlate was the suckling of the twins by the wolf, i.e. their father, Mars. Just as in the myth the feeding of the new-born babies by the wolf and the woodpecker
—
both symbols of Mars
—
undermined the mother
’
s natural function of nourishing her baby, so
patria potes- tas,
the legal paternal bond between father and child undermined the natural biological bond between mother and child.

To return to the myth of the Sabine women, Livy makes it quite clear that the reason for their abduction was the denial of
conubium
by the established communities to the men of the new city. The implications of not having wives with
conubium
was not that the new Romans would not have children, but that they would not have
citizen
children. Although Roman men would have been able to reproduce themselves biologically, Rome would not have been able to reproduce herself politically. Without
conubium
and
iustum mat- rimonium
the children would acquire the status of their non-Roman mothers instead of their Roman fathers, and in Livy
’
s words
‘
a sin- gle generation would be likely to see the end of [Rome
’
s] greatness
’
. However a simple tale of abduction would not have sufficed to attest convincingly to the acquiring of
conubium
with another state. Implicit in the notion of
conubium
is the notion of equality of status.
Conubium
could not be acquired by force. If the Romans had defeated the Sabines in battle it would have put them in the rather ridiculous position of being granted
conubium
by a vanquished enemy. To allow the Sabines to defeat the Romans would not have solved the problem, and was in any case unthinkable. Instead, the

Sabine women were made to intervene just when both sides seemed evenly matched and the outcome of the battle was in doubt. The result of that intervention was the combination of the two states on an equal footing.
‘
They [i.e. Romulus and Titus Tatius, the Sabine king] shared the sovereignty but all authority was transferred to Rome.
’
63
The narrative device of the intervention of the Sabine women makes the establishment of
conubium
between themselves and the Romans plausible and the
‘
marriage
’
of the two states becomes a metonymy for
iustum matrimonium
.

The
‘
Sabine-ness
’
of the women is another feature of the myth that we tend to take for granted but which illustrates Roman ideas of
iustum matrimonium
. The Sabine women are not Roman; they are outsiders brought in to guarantee the future existence of the new city as well as their husbands
’
agnatic line. The central idea around which the institution of
iustum matrimonium
evolved was that the wife remained outside the agnatic family to which her husband and her children both belonged. It is widely believed that the early form of marriage,
cum manu,
had largely
—
but not entirely
—
given way by historical times to the form
sine manu
.
64
In a marriage
cum manu
a wife did become part of her husband
’
s agnatic family. She pos- sessed within the family the same status as her children, being in the
potestas
(technically
manus
) of her husband or his father or grandfa- ther if they were alive. Her property, including her dowry, became the property of her husband or his
paterfamilias,
and she acquired the same rights of intestate succession within his family that her chil- dren had, while at the same time losing those rights in the family of her birth.
Cum manu
marriage was therefore an attempt to compen- sate for the
‘
alien
’
nature of a wife by turning her into a pseudo- daughter. Her legal relationship to her husband was analogous to that of her children to their father. Most importantly in a
cum manu
marriage, though divorce was possible, the wife could not initiate it.
65
In a
sine manu
marriage a woman remained technically aloof from her husband
’
s agnatic family. If she had male ascendants living she remained in their
potestas
unless she had been legally emanci- pated. Otherwise she remained
sui iuris,
technically mistress of her own financial affairs though subject to
tutela
or legal guardianship. In a
sine manu
marriage, a woman could divorce her husband as easily as he could divorce her.
66
In a
sine manu
marriage therefore, a wife
’
s
‘
alien
’
character was not compensated for. She remained legally a member of her own agnatic family and outside her husband
’
s.

The tensions inherent in the position of a wife
vis
à
vis
her hus- band
’
s family is reflected in the myth of the Sabine women. By going to war to avenge their daughters
’
abduction the fathers of the Sabine women reflected the power of a wife
’
s father under whose
potestas
she remained, if she had married
sine manu
. In such a marriage the relationship of a wife to her husband
’
s family was potentially precar- ious. It is generally accepted that Roman marriage was a form of political alliance at least among the elite. A father who retained
patria potestas
over his daughter after she married could in theory undermine a husband
’
s control of his wife. Indeed the fact that a father was expected at least to participate in decisions pertaining to his daughter
’
s affairs is illustrated in the story Plutarch tells of Hort- ensius
’
manner of allying himself by marriage with Cato. Horten- sius
’
first suggestion was that he should marry Cato
’
s daughter, Porcia, who was married to Bibulus. Whether Bibulus was con- sulted or not we do not know; it was Cato who refused Hortensius on the grounds that it was not proper to discuss the marriage of a daughter who was already married. Hortensius then suggested that he should marry Cato
’
s own wife, Marcia, who was still young enough to bear children. This time Cato referred the decision to Marcia
’
s father, the consul L.Marcius Philippus. When Philippus agreed, Cato divorced Marcia to enable her to marry Hortensius.
67
It is a reasonable assumption that both Porcia and Marcia were mar- ried
sine manu
and so it was their fathers rather than their husbands who ultimately decided their fate. Theoretically the law, until the time of Marcus Aurelius, allowed a father the right to force a daugh- ter still under his
potestas
to divorce her husband, although it is doubtful if, even as early as the first century BC, this was a practical possibility if she did not want to do so.
68
In a conflict between father- and son-in-law, a woman married
sine manu,
who had a foot in both camps so to speak, would have been in a strong position to mediate. This is powerfully demonstrated in the myth of the Sabine women.
69

Roman attitude to divorce was characterized by conflict and ten- sion. One reason for this was the marginal position of the wife with respect to the agnatic family to which her husband as well as her children belonged. Roman marriage was, theoretically at least, a free association of a man and woman with the legal capacity to many. Hence it was improper to enter into a contract not to divorce.
70
Nevertheless there was a clear disjunction between the ideological view of divorce and its social reality or potential reality.

The traditional scholarly view of the incidence of divorce by the time of the late Republic has been that it was even by modern west- ern standards a widespread phenomenon, at least among the elite, and in keeping with a trend towards looser moral standards and the growing emancipation of women. Recently such ideas have been challenged. It has been argued that passages taken from satirical and moralistic writing which were used to support the argument for fre- quent divorce were not so much accurate reflections of social events, as part of a body of misogynistic discourse.
71
Treggiari has rightly pointed out that it is impossible to compile statistics on divorce in any period in antiquity. She challenges the notion that divorce was epidemic in the late Republic and early Empire.
72
But whether or not divorce was a widespread social phenomenon by the time of the late Republic, it was certainly a socially acceptable and easily accomplished way for either husband or wife to end a marriage.

Even if divorce had not achieved the epidemic proportions sug- gested by most modern scholarship, the relative ease with which a marriage could, if necessary, be dissolved by either partner con- tributed to feelings of insecurity about marriage. This was especially the case among the elite where the financial stakes were high.
73
Since the purpose of
iustum matrimonium
was the perpetuation of the husband
’
s agnatic line, it is quite logical that a wife was seen as fungible. Not only did the law allow her to remain technically aloof from her husband
’
s agnatic family to which her children also belonged, but it made no great effort to ensure that she remained even nominally a part of that family. Divorce, like marriage, was a state of mind. Before the Augustan legislation all that was necessary for a formal divorce was that either husband or wife should cease to regard him or herself as married.
74
Formalities were usually observed, as they were in the case of marriage, but they were not legally necessary. The law intervened only to safeguard and dis- tribute property as a consequence of divorce.

The ancient writers looked upon divorce with anxiety and disap- proval.
75
The satirical and moralistic writers with their scathing if exaggerated diatribes against habitual and irresponsible divorce reflected a widespread and deeply rooted disapprobation. The dis- junction between social practice and ideology is very clearly dis- cernible. Despite evidence that divorce was permitted by the XII Tables, and must have occurred at a very early date, the fact that there existed a tradition of a
‘
first
’
divorce, which some sources dated fairly late, makes that point very well. The first man to divorce

his wife was, according to this tradition, Sp. Carvilius Ruga. He loved his wife, tradition insists, but she was barren. He therefore could not in all honesty swear before the censors, as he was required to do, that he had married a wife for the purpose of procreation
—
liberorum quaerundorum causa.
None the less he was said to have incurred the opprobrium of his contemporaries by divorcing her. Alan Watson has argued that Ruga
’
s was not so much the first divorce, as the first divorce of a blameless wife where the husband, himself blameless, was not required to pay a penalty.
76
According to the laws of Romulus only a husband could initiate a divorce, but only if his wife had committed the serious marital faults of adultery, poisoning of children and substitution of keys.
77
In such cases her dowry was forfeit. If however a man divorced his wife for any other reason, half his fortune was payable to his wife and the other half forfeit to Ceres. In other words the divorce of an innocent wife was blameworthy on the husband
’
s part. Ruga
’
s was the first case of a divorce which was
‘
blameless
’
on both sides. Ruga had to pay no penalty, but from then on it became necessary to allow the wife action for restoration of dowry. Therefore Ruga
’
s constituted not so much the very first divorce as the boundary between the moralistic archaic form of divorce and the amoral contemporary form, which became the focus for much of the anxiety with which the
matrona
was perceived, for after Ruga divorce did not need to be justified and was not penalised.

Divorcing a wife lightly and without very good reason, was regarded with disapproval. Ruga
’
s story is often told in conjunction with that of L.Annius who was removed from the senate by the cen- sors of 307
–
6 BC for divorcing an innocent wife, who had come to him as a virgin, without seeking the advice of his friends.
78
This last omission is in contrast to Ruga who sought his friends
’
advice before reluctantly divorcing his wife. Divorce was necessary some- times, but was to be undertaken only after much careful deliberation. Religious practice did not actively penalise the divorced nor did religious ideology condemn them. But the ideal was life-long mar- riage.
79
The
flamen Dialis
for example was not allowed to divorce. The characteristic flame-coloured veil worn by his wife, the
flaminica Dialis,
was regarded as a symbol of permanent marriage and formed part of the costume of a bride.
80
A potential Vestal Vir- gin had to have both father and mother alive.
81
There was no stipula- tion that they had still to be married to each other at the time their daughter was chosen for the priesthood. Nevertheless Tacitus