The Marriage of Roman Soldiers (13 BC-AD 235): Law and Family in the Imperial Army

By Sara Elise Phang | Go to book overview

CHAPTER FOUR
THE JURISTS

The Roman jurists’ writings contain valuable evidence for the soldiers’ marriages.1 Our main source is the Corpus Iuris Civilis, containing the Digest, a compilation of excerpts from the monographs and commentaries of second and third-century A.D. Roman jurists, and the Codex Iustinianus, a collection of imperial constitutions most of which span the Severan period (193–235) to Justinian’s present (early 530s). Thus the works of nearly all the classical Roman jurists survive only in fragments, which have been selected, edited, and possibly reworked by the Byzantine compilers. Gaius’ Institutes, a textbook on Roman private law from the mid-second century, survives intact; small epitomes of the classical jurists, such as the Rules of Ulpian and the Sententiae attributed to Paul, are probably of late third or early fourth-century date.2

These sources are concerned almost entirely with private law, ius civile. They take little interest in criminal or administrative law, or for that matter military law. Digest titles D. 29.1, 49.16, and 49.17 treat legal matters relevant to the soldier, respectively, the soldier’s will (de testamento militis), military law (de re militari), and the soldier’s property (de castrensi peculio). In none of these chapters (or elsewhere in the Digest) is there any reference to a prohibition of soldiers’ marriage. On the contrary, a number of passages at first glance suggest that the soldier could have a legal marriage while in active

1 Of necessity, this chapter concerns Roman citizen soldiers, to whom Roman
law applied. Roman military law (D. 49.16) will have applied to all soldiers in the
interests of discipline (e.g. a soldier was not permitted desertion just because he was
a peregrine). Other institutions, e.g. filius familias status, only pertained to Roman
citizen soldiers. Originally, only legionaries and Praetorians were Roman citizens,
but more and more Roman citizens seem to have entered the auxilia and fleet in
the second century A.D.

2 Nicholas (1962), 34–45; Robinson (1997), 56–66; Johnston (1999), 2–26. All
references to the Digest (Latin: Mommsen and Krüger’s edition; English transla-
tion, ed. Alan Watson, Philadelphia 1985) are abbreviated D. All references to the
Codex Justinianus (Krüger) are abbreviated C. I have occasionally corrected the
translations of the Philadelphia edition of the Digest; this will be noted.

-86-

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