Three Table of Incidence of Laws Concerning Parenting

We began this work with a New York Times article, one which questioned the role of marriage in the modern Western world and considered its cultural purpose, and with some thoughts about how the family is changing its meaning in the modern day. The ideas of family, marriage and children in the Western world are shifting under our feet and the law is following, or leading. We have seen remarkable similarities in the period we have studied. We have seen new ideas and cultural conceptions bubble to the surface and appear alongside longstanding, traditional ideas. As the concept of marriage was presented as being a legal document, a pleasurable attachment, a vehicle for licit sex and a vehicle for rejecting sex so too concepts of familial roles shifted and re-shifted.

From the analysis presented here, the Roman/Germanic dichotomy can be seen as a false and imagined division, constructed by authors both ancient and more modern for their own purposes. The codes which on their surface provide such strong support for the fall narrative, and the introduction of codified ‘Germanic’ custom into new cultural contexts, do not offer such strong support when they are fully examined. The codes have a considerable amount in common with late Roman law, significantly more than is different. This conclusion is not a new one. Ruth Mazo Karras, Nick Everett, Ian Wood and many others have offered the same conclusion when looking at individual codes. Here we conclude that this is true for all the post-Imperial codes, and that the authors of the post-Imperial codes aimed to frame themselves as lawmakers in the Roman tradition. Where dramatic differences from Roman law have been noted, it is the influence of Christian thought which was the driver of change. The regulations regarding divorce, abortion and infanticide are particularly relevant here as they came to encompass Christian theological ideas about ensoulment, marriage and charity. There are some exceptions, for example the Frankish preoccupation with land ownership which is not a Roman or Christian idea. However even these do not seem to have emerged from a ‘Germanic’ tradition, but from the cultural and social issues of a period and place where land was of extraordinary importance.

As a result of the new Christian focus on sexual behaviour driven by the Augustinian definition of the core reason for marriage, from the fifth century a new motif emerged which openly challenged a married man's right to have sexual contact with slaves and concubines, and redefined such behaviour as adultery. Throughout the classical Roman period, adultery was defined simply as the occurrence of a married woman having sexual contact with a man other than her husband. This is the definition of adultery that we see in the majority of post-Imperial legal texts. The earliest, and simplest, adultery laws deal exclusively with female adultery, in line with classical and late Roman law. Thus, in the Lib Con. it is punishable by the woman's immediate death at the hands of her husband or father along with her sexual partner. The Burgundian laws make the execution of the woman and her sexual partner at the hands of her husband the fundamental punishment and in fact, should he kill only one, or neither of the pair, punishes the husband with fines. This is in line not only with late Roman law (for example Dig. 4, 4, 37), but also with Augustus's Lex Julia de Adulteriis of AD 18, and the Cornelian law de Sicariis, derived from the Twelve Tables, which concerned homicide and was instituted by Sulla in BC 82. The Lib. Con. does contain a divorce provision for instances of female adultery, in which adultery is stated to be a cause for legitimate and unpunished divorce. This possibly suggests that a significant number of men did not instantly execute their wives regardless of the letter of the law. In such instances, the case is referred to a judge where the husband must prove the accusation of adultery and, should his wife be found guilty, the judge will ‘pronounce the letter of the law against her’ and she will be branded a ‘criminal’. So, the case presumably results in her execution by another means.

In the Lombard and Visigothic law codes the provisions for adultery are more detailed and more complex but are also broadly similar to the classical Roman law: a man has the full right to kill his wife and her partner if they are caught in an adulterous position.

Table of Incidence of Laws Concerning Betrothal and Marriage

While the post-Imperial legal codes are not interested in marriage or betrothal in processes or life course stages in and of themselves, but in the property ownership matters which arise as a result of their occurrence, the literary texts have different foci. One aspect which seems universal to the literature is that the bride and groom themselves are perceived and presented as having very little agency in the process. It is a process controlled by the parents. However, during this period, the themes of mutual consent and desire for marriage that later become so dominant in Christian thought are beginning to emerge. Furthermore, it is clear that often the concept of non-consensual, forced betrothal, or betrothal for familial advantage, is used for ideological and theological purposes by religious writers, using it as a motif to demonstrate spiritual strength and perfection. These ideas, that marriage should have a consensual element, and that the consent should be that of the individual man and woman, not their fathers, develop throughout the Middle Ages and Medieval period, and become fundamental to Christian ideals of marriage. In 1994 Philip Reynolds argued that during the post-Imperial, post-Patristic period, Christian theologians worked to explicitly differentiate Christian marriage from pre-Christian marriage. These texts demonstrate that this attempt began early in the post-Imperial period. Moreover, this analysis highlights an important facet of the post-Imperial world: the fundamental importance of the Christian/non-Christian dichotomy over the more traditional Roman/’Germanic’ dichotomy. It is the rising power of Christian thought which changes the conceptualisation (and eventually practice) of betrothal, not the ‘barbarisation’ of the Roman world.

The cultural idea that marriage is a contract which exists purely for the licit production of children remains core to post-Imperial conceptions of betrothal and marriage. Although the emphasis shifts away from a children/heirs dichotomy, marriage existed within all strands of thought as a means to produce and protect children. However, as we have seen, there are other ways to think about the creation of children, and of family planning. These are emotive ways, that undermine the image of the ‘barbarian’ post-Imperial world as a heartless or cruel place, where child care and family planning is characterised as the ‘the ghastly slaughter of innocents’.

Much of the reading of the post-Imperial codes as representing bride-selling also comes from the contemporary religious tracts written to and about consecrated virgins. These works have been enormously influential in framing how the post-Imperial world is read, and how women felt about marriage and betrothal, despite the fact that not one was written by a woman. These tracts and letters are unequivocal in their perception of the institution of marriage, telling women: ‘You have been bought, o matrona, and purchased by the contracts of your dowry agreements’, and,

These two quotes come from fifth century Rome and seventh century Visigothic Spain respectively, demonstrating the depth and reach of this trope in Christian rhetoric concerning marriage and virginity. What we see here is the impact of genre on the presentation of behaviour: very different conceptions of what the transfer of property and the legal incompetence of women means in terms of betrothal are presented in different genres. While the post-Imperial codes represent the transfer of property as enhancing a marriage, as marking it as legal and correct, in the Christian rhetorical texts it is seen as debasing a marriage and detracting from the ideals of consent and desire. This is predominantly drawn from the Augustinian theology of marriage which makes Christian marriage a sacred and spiritual institution, initiated by God and separate from the legal institution that is controlled by the courts and kings. To Augustine, and those Christians who followed, a marriage between two Christians was more than simply a legal formality for the production of children, but marked the formation of an unchanging and immutable spiritual bond between two souls.

One of the most significant intersections of Augustinian marital theology of sacramentum and the legal realm of contractual marriage is found in the unique phenomenon of post-Imperial incest legislation.

The purpose of marriage in legal texts and in Christian contexts is to produce legitimate heirs. We see this in the Liber Constitutionum which states that if a husband or wife dies before they produced children, the surviving partner could not claim back any property or money that exchanged hands at the betrothal. This suggests that all marriages were expected to produce children and that this was its primary function. This is, in law and literature, its only official function, a function which is clearly defined from the biological process of simply having children (for men at least). Thus, that a married couple would have children is a truism rather taken for granted in modern scholarship on any historical period. Reproduction is viewed as a fundamental and unavoidable facet of being married and therefore perhaps not worthy of rigorous exploration. This means that the motivations for deciding to have children cited by the inhabitants of the post-Imperial Western world have rarely been thoroughly examined, though Ville Vuolanto's 2015 study offers an excellent first step in this direction. A significant reason for this lack of scholarship is the simple fact that there are no documented cases of married couples remaining voluntarily childless for any reason other than Christian chastity. In legal texts, married couples mentioned as being childless, for example in cases of the premature death of one partner, are usually presented as if they desired children but were frustrated.

There are two primary motivations for procreation offered by the sources: first there is the continuation of the family, often expressed as either the protection of the patrimony, preservation of the family name or as a fulfilment of the marriage contract; secondly, procreation was for the emotional fulfilment of the couple. The separation of these two motivations is for the most part artificial. Since it was such a distinct and powerful facet of Roman and post-Imperial society, the idea that ensuring the continuation of a family name and the protection of family estates could be hugely emotionally fulfilling in its own right should not be dismissed. Nonetheless, dialogues concerning the ‘joy’ of having a child or of parenting tend to be sharply differentiated from discussions in the surviving primary material which concern inheritance or familial continuity.

Alongside the developments which allowed fathers a more emotive language for their relationships with their children, a similar, although less overt, series of developments can be seen concerning motherhood in the post-Imperial world. In 1988 Suzanne Dixon, author of the seminal work on Roman motherhood, wrote that ‘the Roman mother was not associated with the young child or with undiscriminating tenderness … but was viewed primarily as the transmitter of traditional morality – ideally, a firm disciplinarian’. In 1996, John Carmi Parsons and Bonnie Wheeler wrote in their volume on Medieval mothering and motherers (by which they referred to both men and women who engage in maternal behaviours) that the primary facet of the Medieval mother was affection characterised by nurturing behaviour. Clearly something changed in the dominant conception of motherhood between the Roman, Late Antique and high Medieval periods. As with almost all other changes, this was primarily fuelled by Christianity.

Mothers are not common figures in post-Imperial literature of any genre, not least because men tend to be writing about themselves. Motherhood is overlooked on a number of levels and there are few overt models of motherhood or motherly behaviour offered for women to emulate. Even more problematically, there are very few depictions of mothers interacting with their children. While in earlier Christian centuries the roles and responsibilities of Christian women within the household formed a central part of Christian discourse on many topics, after the fourth century and before the eleventh women returned to being all but invisible in the sources. During this period, neither the misogynistic diatribes nor the icon of Mary as mother is prominent in any Christian discourse. It has been argued that Mary was an influence on the construction of the Christian family in the early Christian centuries, but the examples raised by Augustine, Jerome and Ambrose all focus overwhelmingly on her role as a wife and on the construction and development of Christian marriage over her role as biological mother and parenthood. She appears to have been presented as a mother in late-Roman catacombs, however, particularly in nativity scenes, but she can be seen as an ‘unsatisfactory model for women who have given birth’ as she is presented most often as a virgin not a mother.

When discussing the relationship between fathers and their adult sons after the son’s marriage the primary sources tend to focus on two aspects: the role of the father in guiding and aiding his son in his career, and the duty of the son to respect, obey and care for his father. Secondary to these, but still common, is an idealisation of father-son relationships as being mutually affectionate and friendly. These are not the aspects that have been studied so far in the secondary literature, however, where attention has tended to be focused firmly on the idea of father-son generational tension with a particular focus on the role of money in such tensions. Yet the stories and anecdotes drawn from the chronicles and histories which make up such studies on generational tensions are almost exclusively the preserve of the royal families and, from the seventh and eighth centuries onward, the political elites of dukes and counts. As with so many aspects of what has been traditionally seen as common familial practice, these conflicts appear to have been confined to the royal household, at least where the reporters of such conflicts are concerned. Outside of the royal family, the only area where father-son conflicts are reported is in hagiography where there is the trope of sons refusing their father’s desire for them to marry. Here, as with the corresponding trope for female hagiographical subjects, the aim is not necessarily to provide an accurate account of a father-son relationship, but to present the breaking of the cultural norm of a close and respectful relationship as being a profoundly Christian and special one.

The role of the father as a moral and practical guide to his grown sons is made clear in a number of sources, particularly the fifth-century Gallo-Roman letters between fathers and sons. Thus, both Ruricius and Sidonius include in their collections letters to or about their sons. Sidonius describes his paternal relationship with his adult son Apollinaris as being ‘one of those fathers who are so eager, so apprehensive and so ambitious about the progress of their sons that they hardly ever find anything to commend, or if they do, are hardly ever satisfied’.

The dominant discourses surrounding parenthood construct both mother and fatherhood as being affectively connected to their children while they are in their infancy. The moment of becoming a parent was expected to fundamentally change the priorities and worldview of both men and women, with the child becoming the centre of attention and the motivation for most expected behaviours such as working to increase their patrimony. Once children reached adulthood and were married or in employment their parents fade into the background in the source material. Only rarely are they, and their relationships with their children, depicted. This next section will examine how the relationship between parents and children changed as the child aged, and the roles that parents were expected to take when their child reached maturity. We will note immediately that mothers fade away far more than fathers, becoming vague mentions for the most part, while fathers tend to maintain an identity. In large part, this is because fathers wrote about themselves, while mothers did not.

Almost all societies have rituals which determine the point of transition from childhood to adulthood (‘social puberty’). In the classical Roman tradition, for boys this took the form of the toga virilis, an event usually seen between the ages of fifteen and sixteen in which the boy formally puts away his bulla (amulet) and childhood costume of the toga praetexta and takes on the toga virilis, also known as the toga libera and toga pura. After this ceremony took place, the boy – now a man – made his first entrance into adult public life, often characterised by military training. For girls, their transition to adulthood was less gradual, and was marked on the day of her marriage (not betrothal, which could occur in infancy). Once the toga ceased to have significance in the post-Imperial world, there are some scant mentions of a ritualised first shave (barbatoria) being used as a similar form of public transition to manhood, for example by Paulinus of Nola who refers to a young man who dedicated his first beard to a saint. An analogous ritual in the Frankish world – or at least Frankish law – comes in the form of the capillaturia: the first hair cutting.

There are a great many motivations, pressures and influences acting on individuals to encourage the production of children and a corresponding number of options for planning and limiting the size of a family unit. These can be broadly separated into two categories, although as we shall see these categories are not immutable: ante-natal and post-partum strategies. Antenatal strategies include contraception and abortion, while post-partum strategies include abandonment, child selling and infanticide. In modern parlance, these strategies are all distinct and clearly defined, but in the surviving evidence from the post-Imperial world, they are considerably more fluid and obscure.

On contraception, the only information on its use that is left to us comes from sermons written by unmarried men who aimed to erase the very existence of sexual contact for pleasure, of whom the most focused are Caesarius of Arles and Martin of Braga. Caesarius is particularly strident in his denunciation of such practices, holding forth across three sermons on the evils of contraceptive techniques including, ‘[H]erbs, diabolical marks [and] sacrilegious amulets,’ none of which can have been effective. On methodology, it appears that the Greek and Roman medical writers still held sway, with Soranus and Aristotle being particularly common. However, these include many more methods than those listed by Caesarius, including suppositories, potions, spermicides, coitus interruptus, pessaries, spermicides, genital salves, post-coital exercises, anaphrodisiacs and the observance of ‘fertile’ and ‘sterile’ periods. Caesarius exhorts his entire province to abandon such practises, repeating the patristic assertion that any act preventing conception through contraception is murder. This is a damning statement on the practice, making the use of contraception a fundamental sin. Elsewhere he refers to women ‘destroying fertility’ through artificial sterilisation, an act he calls mass murder. These accusations are fairly detailed, and are compared to abortion. They are, however, almost direct repetitions of previous accusations made by Jerome and Augustine, who claimed that women drank potions and caused themselves to be sterile in order to engage in illicit sexual intercourse with their husbands, that is sexual intercourse purely for pleasure. This is a theme which is directly related to the pre-Christian classical Roman accusation that women sterilised themselves in order to engage in extra-marital sexual activity.

In poems and epithalamia (‘wedding songs’) betrothal is also presented as being something contracted by the family, with the single exception of Sigibert and Brunhild's marriage in Venantius Fortunatus's epithalamium. This difference is presumably so because of Sigibert's position as a king. Girls are expected to have no particular agency in the decision concerning who they marry, but the idealisation that occurs in epithalamia and poetry emphases their approval of the match, their consent to the marriage and their desire for their betrothed. Thus, Venantius Fortunatus's commemoration poem for the deceased Vilithuta discusses her betrothal to her husband as a wonderful occasion which occurred that she was 13 years old. The fact of her marriage is constructed with her as a passive actor, but Venantius portrays her as desiring her husband as a person, and wanting their marriage: ‘united and given into the care of a man she desired’. There is a subtle suggestion that she is lucky to be given a suitor of whom she approves but it is clear that this poem presents an ideal in which Vilithuta wants to marry her husband as an individual that she likes and desires.

An identical theme is seen in his epithalamium for Sigibert and the Visigothic princess Brunhild. This poem was one of the first works, along with a panegyric, that Venantius presented upon his arrival at Metz from his Italian home, and is therefore a demonstration of his successful attempts to ingratiate himself into the Merovingian court. It can also be assumed from the timing that Venantius had no knowledge of the events that led up to the marriage. Nonetheless he valiantly constructs a detailed set of scenes in which Sigibert is struck with an overpowering sexual and emotional love for Brunhild that transcends both the distance and the seas that separated them. ‘Sigibert, in love, is consumed by passion for Brunhild’ Venantius unsubtly writes. They are both depicted as longing to be together as a married couple, set against an overtly classical backdrop of a spring garden, representing fecundity and harmony. This bears no relation at all to Gregory of Tours's description of the contracting of their marriage, in which he presents Sigibert as wishing to outdo his brothers, who were marrying slaves and women of low birth, and instead find a royal wife.