CONUBIUM IN THE LATER REPUBLIC

A persistent assumption for the later Republic is that Latins enjoyed many privileges in their relations with Rome; these are usually cited as conubium, commercium, and the ius migrationis.

Therefore, there is in fact no reason to assume that the Latins were privileged over other allies in their contacts with Rome after this year. The evidence in fact suggests that Latins were placed on the same footing as all other peregrini. Livy states that in 169 BCE ‘there were two portents which were not taken into consideration, one because it occurred on private, the other on foreign soil’ (in agro peregrino).^[318] The ‘foreign soil’ in question was the Latin colony of Fregellae.

The privilege of conubium between inhabitants of different Latin towns is another debated issue; Livy suggests that the Latins were deprived of this right in 338 BCE. However, Servius Sulpicius refers to a particular betrothal procedure among Latins: ‘The man who was to take the woman to wife made a formal promise’. If the marriage was cancelled, ‘he who had asked for her hand, or he who promised her, brought suit on the ground of breach of contract’, and a fine was payable. Sulpicius adds that ‘this law of betrothal was observed up to the time when citizenship was given to all Latium by the Lex Iulia’ (i.e., 90 BCE).^[321] It may be that this was a custom of the prisci Latini and had earlier been shared by Romans; the Latin colonies seem not to have been involved.^[322] This passage is sometimes used to argue that all Latins possessed conubium with each other, although Sulpicius does not say that marriage occurred between different Latin peoples; the partners could very well have been of the same Latin group. There is therefore no positive evidence that Latins were allowed to marry each other after 338.

The problem of the possession of conubium by Latins should be connected to that regarding the other two privileges they are commonly assumed to have had: commercium and the ius migrationis. However, the possession of both these privileges by the Latins has recently been questioned. Regarding the ius migrationis, in two well-known episodes from 187 bce and 177 bce the Romans were asked by some Latin towns to return to them people who had moved to Rome; Rome then ordered the Latins to return home.^[323] However, if the Latins had possessed ius migrationis, these expulsions make no sense.

I have argued elsewhere that it is also unlikely that the Latins, as a rule, held commercium,^[325] apart from those who were settled in colonies of Latin status. It is likely that a similar arrangement pertained to conubium as well. A passage dating to 177 bce has been interpreted as showing evidence for the widespread existence of commercium among the Latins:

The law entitled the Latin allies to become Roman citizens as long as they left a son of their own at home [...] To avoid the necessity of leaving a son at home, men would hand their sons over as slaves (mancipio dabant) to anyone with Roman citizenship, on the condition that the sons would be manumitted; as freedmen they would become citizens. Men with no offspring to leave behind adopted sons to become Roman citizens.^[326]

The expression mancipio dabant seems to suggest that peregrini (in this case, Latins) who sold their sons as slaves - which were res mancipi - to Roman citizens were admitted to mancipatio, and therefore that they held commercium.^[327]

However, the passage should be considered in the light of the ius migra­tionis. It is thought that Latins were allowed to migrate to Rome and thereby take up Roman citizenship. However, from Livy’s passage, it is clear that this was not as simple as is often thought: if Latins had been allowed to migrate to Rome, they would not have needed to resort to such ingenious methods of gaining citizenship for their sons. It is more likely that we should identify a specially privileged group within the Latins, namely the inhabitants of the Latin colonies. Since many Latin colonists were originally from Rome,^[328] it would make sense that they were allowed to return to Rome if they left a son behind in their colony. This would make it more attractive for Romans to join a colony, because they would have an opportunity to return; for the state this assured that the colonies, which were strategically important for the Romans, remained up to strength.^[329] Those of Latin origin who joined a colony may have been granted the same right, to encourage them to join and as a reward for services to the Roman state.^[330]

I suggest that the Latin colonists may have been granted the right to use mancipatio as a special privilege, like the right to migrate if they left a son in the colony.

That indeed some Latin colonies enjoyed special inheritance privileges is clear from a passage in Cicero:

Sulla himself passed a law respecting the rights of citizenship, avoiding any taking away of the legal obligations and rights of inheritance of these men. For he orders the people of Ariminum to be under the same law that they have been. Who does not know that they were one of the twelve colonies and that they were able to receive inheritances from Roman citizens?⁶⁰

It appears that twelve colonies had the right to inherit from Romans, includ­ing Ariminum, and that the rest did not. Such inheritances could not have been possible without conubium, so this passage suggests that there were, at least in Cicero’s time, twelve colonies with conubium. A commonly held theory is that they were the last twelve Latin colonies, founded from 268 BCE onwards; the first of these was Ariminum.⁶¹

However, there are problems with this interpretation. Firstly, Cicero’s words eodem iure esse, quo fuerint Ariminenses do not sound as if the Ariminenses had a clearly defined set of rights; it sounds more like an ad-hoc measure, possibly a Sullan innovation applying only to Ariminum. Furthermore, it is strange that the last twelve colonies, which were furthest away from Rome, received more rights than others closer to Rome. Their rights would not have been very useful, because they would not interact with Romans so much.

⁶⁰ Cic. Caec. 102: ‘Deinde quod Sulla ipse ita tulit de civitate ut non sustulerit horum nexa atque hereditates. lubet enim eodem iure esse quo fuerint Ariminenses; quos quis ignorat duodecim coloniarum fuisse et a ciuibus Romanis hereditates capere potuisse?’ See Catalano (1965), p. 109; Luraschi (1979), pp. 281-99.

⁶¹ Bernardi (1973), pp. 76-88. The others would be Beneventum, Firmum Picenum, Aesernia, Brundisium, Spoletium, Placentia, Cremona, Thurii Copia, Vibo Valentia, Bononia and Aquileia. However, there is debate about the status of some other towns, especially Luna and Luca; if either of them was a Latin colony, as is assumed by some (see Roselaar (2010), p. 325), then the total of twelve would not add up. Watson (1971), p. 27 argues that it was only by Sulla that the rights of Ariminum were extended to other cities, but Cicero does not say this. Corbett (1930), pp. 24-6 argues that Ariminum and eleven other colonies had an inferior status, rather than more rights. However, if anything, they would have had more rights than other colonies, since they could inherit and others could not. Sherwin-White (1973), pp. 102-4 is indecisive, but does not believe that the twelve towns enjoyed other rights than the rest of the Latin colonies. Co§kun (2009), pp. 34-9 with fn. 70, 80; 64-70 with fn. 192; 119; 146-7; 169 fn. 522 argues that the ius XII coloniarum included commercium, conubium, nexum, enktesis, the ius testamenti factio, and ius hereditatis captio, and was created in the 120s BCE. Because the ius civitatis adispiscendae per magistratum, which Co§kun assumes to have been created in this period, made many local elites citizens, Latins in the same colonies would have had problems in dealing with their own townsmen, so the ius XII coloniarum was created to deal with this problem.

⁶² Antonelli (2006) argues that they were the twelve towns in which Sulla had founded colonies; however, we do not know how many colonies Sulla established.

There would, in that case, be no evidence for the possession of conubium by any colony before Sulla, but the idea that the Latin colonies received this right, together with commercium and the ius migrationis, is in my view attrac­tive. I suggest that Latin colonists were the only group in possession of these three rights, which would on the one hand make sure that the manpower of the colonies remained up to strength, and at the same time make joining a colony more attractive because existing family ties were not sundered by the change of status from Roman to Latin.^[332]

A second problematic group were the cives sine suffragio. Since they were cives, they would fall under the Roman ius civile and therefore have conubium with Romans.^[333] In the case of Anagnia in 308 BCE, the grant of this right was clearly intended as a punishment, which makes it unlikely that they were given the privilege to marry Romans. However, the Capuans, who had received it as a reward in 338 BCE, clearly did marry Romans. They joined Hannibal in the Second Punic War, but before they decided to defect,

the only circumstances which prevented them from immediately revolting were the old established right of intermarriage (conubium vetustum) which had led to many of their illustrious and powerful families becoming connected with Rome and the fact that several citizens were serving with the Romans.^[334]

After Rome recaptured Capua in 211 BCE, its leaders were punished with the loss of their civitas. They appealed to the Romans, stating that ‘they were for the most part Roman citizens, connected with Roman families by intermarriage (conubio vetusto)'.^[335] There is indeed some evidence for marriage between Romans and Campanians: Pacuvius Calavius, the leader of Capua in the Second Punic War, had married a daughter of Appius Claudius, and Calavius' daughter had married one of the Livii.^[336] The daughter of Fabius Maximus Rullianus married Atilius Calatinus, another Campanian noble.^[337]

The situation of the Campanians had not yet been resolved in 188 BCE. As Livy states,

the censors had obliged the Campanians to register for the census at Rome, since it had not been clear earlier where they should register. The Campanians now requested that they might be allowed to take wives who were Roman citizens and that any who had taken them be permitted to keep them; and they also asked that any children born to them before that date be considered as legitimate and able to inherit. Both requests were granted.^[338]

This shows clearly that the Campanians, who at this time held the status of peregrini, did not have conubium before they made this request, for in that case they would not have had to ask for recognition of their marriages.^[339]

It is clear from this passage that a grant of conubium was a unilateral deci­sion made by the Roman state: it could grant this privilege to an individual or group at its own discretion. As in the case of Capua, the Senate could also take away the privilege whenever it wanted, especially as a punish­ment to disloyal allies. In this way grants of conubium - like grants of other privileges, like commercium^[340] - functioned as a tool to maintain Rome’s hegemony over its allies. This is itself makes it very unlikely that all allies, or even all Latins, possessed this right;^[341] if that were the case, Rome would have found it more difficult to use conubium as a tool of government. All attestations in fact refer to individual cases. The use of conubium and related privileges was, I suggest, first and foremost a hegemonic tool, and not an element of ‘Romanisation’; it simply privileged some people over others in their relations with Rome, but did not always make them any more ‘Roman’ in their cultural outlook - Latin colonists of Roman descent would have a ‘Roman’ mindset already; other Latin colonists, however, may have been proud of their new privileged status, and thus grants of legal privileges may have engendered a new feeling of Romanitas among certain groups in Italy. It is clear that conubium was a closely guarded privilege, as was Roman citizenship itself.

For example, a grant of conubium to a specific group was made in 171 BCE:

A deputation from Spain arrived, who represented a new race of men. They declared themselves to be sprung from Roman soldiers and Spanish women who were not legally married (cum quibus conubium non esset) [...] The senate decreed that they should send in their own names and the names of any whom they had manumitted to L. Canuleius, and they should be settled on the ocean shore at Carteia, and any of the Carteians who wished to remain there should be allowed to join the colonists and receive an allotment of land. This place became a Latin colony and was called the ‘Colony of the Libertini’.^[342]

What we see here is a kind of retrospective grant of conubium: the marriages were recognised in a sense, since the sons were considered legally born; however, they did not receive Roman citizenship, as their fathers had held, but only Latin status. If their parents had received full ‘retrospective’ conu­bium, the men should have been made peregrini, since children of a Roman man and a peregrine woman with conubium followed the mother’s status and so were peregrini (see below). Apparently this was felt to be inappropriate for the situation, and indeed the lex Minicia shortly afterwards changed this law. We see again that the Roman state could unilaterally make whatever grants it wished from its hegemonic position.

In 186 BCE the Senate decided that the freedwoman prostitute Hispala Faecenia, who had assisted Romans in the Bacchanalian affair, ‘be permitted to marry a free-born man, and that whosoever married her suffer thereby no prejudice or loss of status’.^[343] The absence of conubium in her case was due to her freed status rather than the fact that she was not a citizen; nevertheless, the Senate could, again, simply decide that such objections were taken away. Citizenship and conubium could also be granted separately: in 89 BCE some Spanish cavalry were granted Roman citizenship, but not conubium; this would mean that they could not marry Roman women.^[344] Thus, it is clear that the Roman state could decide whatever it wished in regard to its civic rights: it could grant all rights separately, to specific peoples, groups, or individuals.

As for the Italian socii, there is no indication that they as a group possessed conubium, as is sometimes assumed for commercium. Diodorus suggests that some Italian socii also enjoyed conubium: in a battle during the Social War, soldiers from both parties recognised each other as ‘men whom the law gov­erning intermarriage had united in this kind of friendly tie’.^[345] Some scholars argue that all socii already possessed conubium,^[346] but this is very unlikely; some of the Italian rebels may have been Latins or cives sine suffragio.

An important change in marriage rights was introduced by the Lex Minicia, possibly dated to before 90 BCE (see above). Before this law, if there was no conubium between two people, they were not legally married, and the child took its mother’s status. If there was conubium, it took the father’s status. Therefore, children of a Roman mother and non-Roman father without conubium had been Roman citizens, since according to the ius gentium, illegitimate children followed the mother. In the case of a valid marriage, children took the status of the father.^[347] Therefore, children of a Roman woman and a peregrine man with conubium had been peregrini, since conubium meant that children followed the father. This was seen as some­what of a paradox; therefore, the lex Minicia enacted that when there was no conubium, the child followed the parent with the lowest status. Nothing changed for cases in which the father was a citizen: a Roman father and a peregrine mother without conubium had a peregrine child, while a peregrine father with conubium and a Roman mother had a Roman child, as had been the case earlier.^[348]

Another legal development related to marriage and inheritance rights was the growing prevalence of marriages sine manu, which gradually replaced those with manus; by the mid-first century BCE, if not earlier, sine manu was the most common form of marriage.^[349] With manus, a woman who married passed from the potestas of her father to that of her husband; the husband would then have complete control over her possessions, and upon her death these would be inherited by his family. If a woman was married in manu, her father could only give her a dowry, and she would have no right to an inheritance on her father’s death; when married sine manu, she could inherit from him. Sine manu, a woman remained in her father’s potestas, to which she returned in the case of her husband’s death; her possessions would be inherited by her family on her father’s side.^[350]

The earliest reference to sine manu marriage dates to 204 BCE, when the Lex Cincia limited gifts between husband and wife.^[351] It is also referred to by Ennius^[352] and in Cato’s comments on the Lex Voconia of 169, which allowed women to have their own property.^[353] An increase in sine manu marriages occurred possibly after the divorce of Carvilius Ruga around 230 BCE, who was, apparently, the first to divorce his wife for reasons other than those laid down in the Twelve Tables.^[354] Because no laws existed for this situation, the wife and her father did not have a legal action to claim the return of her

dowry. When divorce became more common, the cautiones rei uxoriae and actio rei uxoriae were created.^[355] A marriage sine manu had other advantages for a paterfamilias, who would in most cases make the decisions about his daughter’s marriages.^[356] If his daughter was widowed young, he would be able to arrange her next marriage to his advantage, since she was still under his potestas. The fact that she was still entitled to a share in her father’s inheritance would enable the father to make decisions about his fortune up to the moment of his death. The development of sine manu marriages would therefore be in keeping with the availability of larger fortunes towards the end of the third century, over which a paterfamilias would wish to retain control.^[357]

It is possible that the Lex Minicia was passed for the same reasons that caused the increase in sine manu marriages, namely a growing preoccupation with regulations regarding inheritances. This indicates a growing desire to make sure that the increasingly large fortunes accumulated in this period remained in the hands of the same family; on the part of the Roman state, it suggests a desire to ensure that wealth remained in the hands of Roman citizens. Conubium would be a part of this development, because it would ensure that peregrini would not have access to Roman wealth: children of a marriage in which one of the partners was a non-Roman would, as peregrini, not be able to inherit from a Roman citizen. In this sense, conubium and other privileges worked as an important element of separation between Romans and others, rather than as a mechanism of integration. This fits in with the very restricted admittance of peregrini to Roman citizenship in general, as we have seen.

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