¹ For a bibliography of the different views, see Taubenschlag, R., The Law of Greco-Roman Egypt in the light of the Papyri 332 B.C.–A.D. 640 (1944), 82, n. 21Google Scholar; Kaser, M., Das römische Privatrecht (1971), 317, n. 60Google Scholar; Garnsey, P., ‘Septimius Severus and the Marriage of Roman Soldiers’, California Studies in Classical Antiquity 3 (1970), 45CrossRefGoogle Scholar. The most comprehensive account of the legal position of the Roman soldier is that of E. Sander, ‘Das Recht des römischen Soldaten’, RhM 101 (1958), 152.

² Cassius Dio 76. 15. 2.

³ 60. 24. 3: τοῖς τε στρατευομένοις, ἐπειδὴ γυναῖκας οὐκ ἐδύναντο ἔκ γε τῶν νόμων ἔχειν.

⁴ Mitteis-Wilcken, Grundzüge und Chrestomathie der Papyruskunde (1912), II. 2, no. 372, col. 1, l. 11; cf. col. 2, 11. 1 and 20–1 (A.D. 134). All identifiable cases in these papyri deal with auxiliaries, but the general tone of the statement by Lupus implies that the ban was extended to the legions and presumably the Praetorian Guard. Dio also implies that all soldiers were bound by the marriage prohibition.

⁵ Suetonius, Cal. 22. 1.

⁶ Dio 57. 8. 2.

⁷ Velleius 2. 125; cf. Tacitus, Ann. 1, 78. 2.

⁸ Suetonius, Aug. 24. 1; 25. 1.

⁹ For the situation in the Republic, see Brunt, P. A., Italian Manpower (1971), 140, 247Google Scholar.

¹⁰ Mitteis, op. cit. (n. 4), no. 373 = Select Papyri (ed. Hunt and Edgar), no. 213.

¹¹ See n. 4.

¹² Digest 5. 2. 6 (Ulpian); for the position of illegitimate children, see Buckland, W. W., A Textbook of Roman Law³ (1963), 105Google Scholar; RE, s.v. ‘Spurius’; Schulz, F., Classical Roman Law (1951), 160 fGoogle Scholar.

¹³ Mitteis, op. cit. (n. 4), col. 3, 19-20. The supplement is ἐ [πικρι]θή[σο]νται. From the context it must mean that the children would undergo probatio as Roman citizens in the epikrisis ὡς ἐκ Ῥωμαίας [γεγενημέ]νοι.

¹⁴ cf. Mitteis, op. cit. (n. 4), col. 4. 6 f.

¹⁵ For examples of these see Schulz, F., ‘Roman Registers of Births and Birth Certificates’, JRS 32 (1942). 79Google Scholar and 33 (1943), 59.

¹⁶ Tit. Ulp. 5. 8.

¹⁷ ibid. 22. 2. Peregrini could not inherit in Roman wills.

¹⁸ Gaius 1. 78; Tit. Ulp. 5. 8.

¹⁹ D. 23. 3. 3 (Ulpian): ‘ubicumque matrimonii nomen non est, nec dos est’. Cf. Mitteis, op. cit. (n. 4), col. 1, 13. The translation of the phrase εἰ δὲ προῖκα ἀπαιτεῖς, κριτὴν δίδωμ[ι]…., is normally: ‘If you demand back the dowry and I grant a judge, I shall seem to have been persuaded that the marriage is valid’. The implication is that this would be an erroneous impression of the Prefect's attitude. However, in his commentary Mitteis held that this idea would require the optative δίδοιμι, and saw Lupus' decision as a step on the way to recognizing ‘Soldatenfrauen’. Sander (op. cit. (n. 1), 157) thought that both interpretations were possible. But Mitteis' theory seems to be ruled out by the context of the rest of Lupus' judgement. He says: ‘We know that money deposits of this kind constitute a dowry. For this reason I do not give a judge; for a soldier is not permitted to marry’. This shows that Lupus was determined to uphold the legal consequences of the ban on marriage. On Mitteis' interpretation of the last sentence, the Prefect would then be making two contradictory statements. Furthermore, all the other judgements in this collection of papyri enforce the law against military marriages.

²⁰ Tit. Ulp. 7. 1 f; Mitteis, op. cit. (n. 4), col. 6. 1 f.

²¹ See n. 4.

²² op. cit. (n. 4), col. 5. 1 f.

²³ FIRA ² III, p. 11. And see Schulz, op. cit. (n. 15) (1943), 62.

²⁴ See above, n. 15.

²⁵ 12. 1.

²⁶ Mitteis-Wilcken, op. cit. (n. 4), 11. 1, p. 282 take the view that a marriage contracted before military service was annulled on enlistment; but the evidence cited there does not justify their conclusion. Garnsey, op. cit. (n. 1), believes that such marriages remained valid during military service.

²⁷ op. cit., col. 4. 1 f. Citizens of Alexandria would be entitled to form a valid marriage in local law.

²⁸ See n. 22.

²⁹ However, a child who was conceived before the husband enlisted and born when he was in the army, would presumably be held to be legitimate, provided that the dates could be clearly proved.

³⁰ Sterility, old age, illness and the taking of a priesthood are cases in which a gradual or sudden change in the ability of the husband to have normal relations with his wife have made it impossible to sustain an already existing marriage. It follows that ‘militia’ should refer to a case where a married man decided to enter military service.

³¹ It may be asked why, if entry into military service dissolved a marriage, Gaius should recommend divorce in such cases. But the government could not prevent a soldier from cohabiting with any woman, including the woman he had legally married before enlistment; but it could deny him the usual legal consequences of a proper marriage, including the right to have legitimate children born to him. Gaius therefore perhaps means that it is better for a husband about to enlist to dissolve his marriage formally by divorce, rather than risk the consequences of continuing to regard himself as legally married.

³² cf. FIRA ² in, p. 54. This enigmatic text, which appears to show a dowry declaration by the wife of a soldier, may be an example of a divorce because the husband had entered the army. See Berger, A., Journal of Juristic Papyrology I (1946), 13Google Scholar. But the interpretation of the text has been much disputed and no weight can be placed upon it.

³³ Especially in view of the common, inappropriate use of the word ‘uxor’ even in official documents to describe the spouse in unions contracted during military service.

³⁴ See below, nn. 74–76.

³⁵ For the presumed position of a child conceived before enlistment, see n. 29.

³⁶ See above p. 154.

³⁷ D. 29. 1. 1 pref.

³⁸ ibid.

³⁹ D. 29. 1. 2.

⁴⁰ Iust., Inst. 2. 12 pref.; Tit. Ulp. 20. 10.

⁴¹ D. 49. 17. 11 (Macer); 49. 17. 4 (Tertullian); 49. 17. 6 (Ulpian); 49. 17. 16 (Papinian).

⁴² Tit. Ulp. 20. 10. I cannot agree with the view of Daube, D. (Roman Law: Linguistic, Social and Philosophical Aspects (1969), 81)Google Scholar that for the bulk of the citizen population the rules of patria potestas did not operate, and that it applied only to the upper class élite. It is enough to cite the many imperial rescripts addressed to soldiers and emphasizing the principle of the father's power: CJ 12. 36. 1 (223); 12. 36. 2 (224); 12. 36. 3 (224); 12. 36. 4; 12. 36. 5; 8. 46. 7 (294). Note also Juvenal 16. 51 f. and P. Oxy. 2951 (this papyrus of A.D. 267 shows that patria potestas applied to Roman citizens in the provinces).

⁴³ Dio 60. 24. 3.

⁴⁴ Inst. 2. no.

⁴⁵ See above, p. 154.

⁴⁶ See above, n. 37.

⁴⁷ As some troops were occasionally stationed in senatorial provinces and individual soldiers may have had property there, these mandata were presumably sent to proconsuls as well as imperial legates. For the sending of mandata to proconsuls, see now Burton, G., ‘The Issuing of Mandata to Proconsuls’, Zeitschrift für Papyrologie und Epigraphik 21 (1976), 63Google Scholar.

⁴⁸ See n. 10.

⁴⁹ cf. lines 11–12; 21–4; 29–30.

⁵⁰ Hadrian says specifically (11. 24-7) that the claim of children born to soldiers in military service would be allowed in accordance with the section of the edict that extended the right to ‘cognati’ of the family: ὄμως κατ[ο]χὴ[ν] ὑ[πα]ρχόντων ἐξ ἐκείνου τοῦ μέ[ρ]ους τοῦ διατάγματος, οὗ καὶ τοῖς πρὸς [γ]ένους συνγενέσι δίδοται, αἰτεῖσθαι δύνασθαι …

Now, the edict was presumably applicable only to Roman citizens, and peregrines would be excluded, as they were from inheriting in testamentary succession. But this view may be too legalistic; the letter speaks simply οἱ γονεῖς αὐτῶν τῷ τῆς στρατείας ἀνείλαντο χρόνῳ, which surely implies any child of a soldier. There is no mention of any restriction on the numbers of children eligible.

⁵¹ cf. lines 10–20.

⁵² ἤδιστα δὲ αὐτὸς προείεναι τὰς ἀφορμὰς δι᾿ ὧν τὸ αὔστηρότερον ὔπὸ τῶν πρὸ ἐμοῦ Αὐτοκρατόρων σταθὲν φιλανθρωπότερον ἑρμηνεύω.

⁵³ See n. 52. There is no indication in the letter that Hadrian has been alerted to the problem by, or is responding to, any particular complaint. The verb ἐπίοταμαι (1. 10) means ‘I know’ or ‘I am aware of’.

⁵⁴ Millar, F., The Emperor in the Roman World (1977), 6–7 and passimGoogle Scholar.

⁵⁵ See above, n. 47.

⁵⁶ This is a mere impression; I hope to take up these matters in more detail elsewhere.

⁵⁷ e.g. FIRA ² I, p. 231, no. 27. Cf. ibid., p. 233 no. 29 (Praetorian Guard); CIL XVI. no. 122 (the Fleet).

⁵⁸ 3. 8. 4–5.

⁵⁹ Garnsey, op. cit. (no. 1), 47 f. However, Liddell and Scott, s.v. συνοικεἴν, think that the word means ‘to live in wedlock’.

⁶⁰ Indeed, in general it would be very odd if Severus had merely allowed soldiers to live with women, since de facto this had always been tolerated and there was no point in a specific grant.

⁶¹ Herodian's statement that Severus allowed the soldiers to wear gold rings may also arouse some doubts about his reliability in this passage. But he does not necessarily imply that Severus made soldiers equites, which would certainly be untrue; all he means is that soldiers were now permitted to wear gold rings, if they could afford them.

⁶² See above, n. 25.

⁶³ Garnsey, op. cit. (n. 1), has attempted to cast doubt on some of the legal evidence by alleging that it might refer to a marriage contracted before service. See further below, n. 72.

⁶⁴ D. 23. 2. 35.

⁶⁵ This was suggested by Garnsey, op. cit. (n. 1), 50.

⁶⁶ D. 23. 2. 45. 1–6.

⁶⁷ D. 48. 5. 12.

⁶⁸ It may be argued that ‘licet non in matrimonium’ means ‘even if we concede that there is no question of a (legal) marriage’, implying that a soldier could not be properly married. This interpretation remains a possibility, but for the reasons stated in the text it seems to me unlikely.

⁶⁹ CJ. 2.11. 15.

⁷⁰ The law could not prevent a woman cohabiting with a man during the period of mourning for her husband.

⁷¹ See above p. 155 f.

⁷² Garnsey's method (op. cit. (n. 1), 48 f.) of rejecting all legal texts that appear to show a soldier legally married after Severus, on the grounds that they may refer to a marriage contracted before service, is therefore unsound. His argument does not in any case affect the four texts cited above, on which I place most emphasis.

⁷³ D. 29. 1. 33.

⁷⁴ It may be suggested that the postumus had been conceived before the father joined the army. However, if Tertullian had such a situation in mind, it would surely be essential for him to make this explicit. Cf. 29. 1. 33. 2-3; 29. 1. 36. 2; Cy 6. 21. 9.

⁷⁵ D. 29. 1. 7.

⁷⁶ It can be argued that ‘qui iure militari testatur’ does not necessarily refer to a ‘miles’, since the will of a ‘paganus’ counted as a military will if that is what the man wanted when he joined up (cf. D. 29. 1. 9; 29. 1. 15. 2). And so the phrase ‘non fuit praegnas’ could refer to a case in which a man had made a will as a ‘paganus’, leaving his property to heirs other than his children, not knowing that his wife was pregnant and also disregarding the results of future pregnancies. But again it seems extraordinary that, if this is what Ulpian meant, he did not make it explicit. The passage certainly implies that serving soldiers could produce legitimate children.

⁷⁷ D. 48. 5. 12.

⁷⁸ Can the jurist perhaps be referring to a marriage contracted before service? But the available evidence at least suggests that such marriages were annulled when the husband joined up. What is more, if we assume for a moment that soldiers were still not permitted to marry after Septimius Severus (as Garnsey argues), and that Papinian is referring to a marriage contracted before enlistment, the jurist would have to make this distinction clear, since the text as it stands gives the impression that all soldiers could have wives.

⁷⁹ See Garnsey, op. cit. (n. 1), 50 f. The diplomata of the auxiliaries are not attested after 168/90. Their case can be compared to that of the equites singulares.

⁸⁰ See n. 58. The language suggests that all soldiers without distinction received the benefits conferred by Severus.

⁸¹ Durry, M., Les cohortes prétoriennes (1938), 296Google Scholar argued that military discipline was more closely observed among the Praetorian Cohorts than among the rest of the soldiers. This is hardly convincing; the Guard enjoyed special privileges in pay and donatives and terms of service, and frequently received special gifts from the emperor. Indeed, in the period between the death of Commodus and the accession of Severus, the Guard was one of the major sources of indiscipline and disturbance in the army.

⁸² See Brunt, P. A., ‘Conscription and Volunteering in the Roman Imperial Army’, Scripta Classica Israelica I (1974), 110Google Scholar f.

⁸³ Gaius 1. 75.

⁸⁴ It is worth noting that diplomata continued to be issued after A.D. 212, even though by this time Caracalla had probably conferred citizenship on the majority of the free population of the empire. This can be explained on the hypothesis that, as it would take some time for the measure to have its effect, there would be many people of uncertain status, and the soldiers would still need diplomata as insurance, especially in the unstable times of the later third century.

⁸⁵ Garnsey, op. cit. (n. 1), 46–7.

⁸⁶ With the gradual spread of the Roman citizenship, many more legionaries will have been able to form unions with women of citizen status in the canabae. The children of these unions were Roman citizens.

⁸⁷ Brunt, op. cit. (n. 82), 109.

⁸⁸ See Forni, , Il Reclutamento delle legioni da Augusto a Diocleziano (1953), 182 f.Google Scholar; Kraft, , Zur Rekrutierung von Alen und Kohorten an Rhein und Donau (1951), 50 fGoogle Scholar.

⁸⁹ I cannot accept the view of Starr, C. G., The Roman Imperial Navy² (1960), 91 f.Google Scholar, that the phrase ‘concessa consuetudine’, which appears in the discharge diplomata of classici after A.D. 166, means the right to contract a ‘iustum matrimonium’. The complete formula of the fleet diplomata reads (CIL XVI. 122): ‘quorum nomina subscripta sunt, ipsis filiisque eorum, quas susceperint a mulieribus quas secum concessa consuetudine vixisse probaverint, civitatem Romanam dederunt et conubium cum iisdem quas tunc secum habuissent cum est civitas eis data, aut si qui tunc non habuissent, cum iis quos postea duxissent dumtaxat singuli singulas’.

The phrases associated with ‘concessa consuetudo’, i.e., ‘quas secum vixisse …’ and ‘quas … habuissent’, are contrasted with ‘quas postea duxissent’, and this reflects the usual contrast in the diplomata between the unions in service (officially not recognized) and legal marriage after service. The phrase ‘concessa consuetudo’ simply means the common practice by which a soldier would live with a woman as his ‘wife’; the government accepted this but still denied him the legal consequences of legal marriage. The more explicit wording may be explained on the hypothesis that it was intended to clarify the position of sailors after discharge.

There are thus no real grounds for the statement of Watson, G. R., The Roman Soldier (1969), 138Google Scholar: ‘it was as a result of the experience of the praetorian fleets over a generation that Septimius Severus found it possible to break with long-standing army tradition and make it legal for the men to be officially married’.

⁹⁰ 75. 2. 3. Cary in the Loeb edition translates ἐν τῇ τῶν συνόντων εὐνοίᾳ by ‘in the good will of his associates (in the government)’. But it is hard to see what ‘government’ means here. The word συνόντες perhaps refers to the partisans and supporters of Severus, or indeed to the senators and upper classes in general.