Inevitably, issues relating to sex and procreation play a large role in the law of mar­riage.

Roman law originally left this matter largely in the control of the household it­self. But this situation changed with the moral legislation of the Emperor Augustus, one main focus of which was to encourage both marriage and procreation, particu­larly among the upper classes, who, there is reason to believe, may well have been attracted by nontraditional, more individualistic life styles.

This section examines the centrality of childbirth within marriage as it relates to the origin of patriapotestas, the fathers power over children, a topic examined at greater length in Chapter III. These two topics were doubtless linked in the Roman mind, although the connection is not always salient; for example, Papinian (D. 48.5.6.1), in a piece of folk etymology, derives the word adulterium from “offspring engendered by another” (partum ex altero conceptum), pointing to the adulterer as a genetic interloper. The whole point of Augustus's law, it seems, was to strengthen the social perception of adultery as a misdeed that warranted criminal penalty and thereby to strengthen the concept of marriage as an exclusive sexual union. Modern scholars are strongly divided, however, on whether this law was successful in achieving its aims.

In most legal systems of the modern Western world, adultery is no longer treated as a crime.

D. 40.4.29 (Scaevola libro vicensimo tertio Digestorum)

Uxorem praegnatem repudiaverat et aliam duxerat: prior enixa filium exposuit: hic sublatus ab alio educatus est nomine patris vocitatus: usque ad vitae tempus patris tam ab eo quam a matre, an vivorum numero esset, ignorabatur: mortuo patre testamentoque eius, quo filius neque exheredatus neque heres institutus sit, recitato filius et a matre et ab avia paterna adgnitus hereditatem patris ab intestato quasi legitimus possidet. quaesitum est, hi qui testamento libertatem acceperunt utrum liberi an servi sint. respondit filium quidem nihil praeiudicii passum fuisse, si pater eum ignoravit, et ideo, cum in potestate et ignorantis patris esset, testamen­tum non valere. servi autem manumissi si per quinquennium in libertate morati sunt, semel datam libertatem infirmari contrarium studi [favore] libertatis est.

(Scaevola in the twenty-third book of his Digests)

A man divorced his pregnant wife and married another woman. The first wife bore a son and exposed (i.e., physically abandoned) him. The boy was taken up and raised by a third party, and he was not called by his (true) father’s name. Up to his father’s death, his father and mother were both unaware whether the boy was alive. After the father died, his will was read, in which the son was neither disinherited nor named an heir. But the son was then acknowledged by both his mother and his paternal grandmother, and he took possession of his father’s in­heritance as the legitimate heir upon intestacy. A question arose as to whether those (slaves) who received freedom under the will are (now) free or slaves.

He answered that the son clearly suffered no prejudicial disadvantage if his father was unaware of him, and so, since he was in the power even of an un­knowing father, the will is invalid.

1. The Power of Paternity. The legal question Scaevola faces is simple: if slaves are manumitted under the terms of a will that later turns out to be invalid, is the manumission revoked? (The answer is a qualified yes.) Much more re­markable are the circumstances that led to this will being invalid. Here, the father failed to provide in his will for a son of whose very existence he was un­certain and perhaps even unaware, but who was nonetheless in his power (exactly what does this “power” amount to here?); this omission leads to the invalidity of the entire will. Why does Scaevola recount the family drama in such detail? What does he mean by saying that the son “clearly suffered no prejudicial disadvantage”? Does Scaevola think that the father was somehow negligent in not either instituting the son as heir or disinheriting him? (See Cases 178-179.) In any event, this Case nicely sets a background to those that follow, by indicating why the Romans were often concerned about a pos­sible pregnancy when a marriage ended.

(3)     Denuntiare autem hoc tantum esse mulierem ex eo praegnantem. non ergo hoc denuntiat, ut mittat custodes maritus: sufficit enim mulieri hoc notum facere, quod sit praegnas. mariti est iam aut mittere custodes aut ei denuntiare, quod non sit ex se praegnas: hoc autem vel ipsi marito vel alii nomine eius facere permittitur. (4) Poena autem mariti ea est, ut, nisi aut custodes praemiserit aut contra denuntiaverit non esse ex se praegnatem, cogatur maritus partum agnoscere: et, si non agnoverit, extra ordinem coercetur. debebit igitur respondere non esse ex se praegnatam aut nomine eius responderi: quod si factum fuerit, non alias necesse habebit agnoscere, nisi vere filius fuerit......................................

praegnatem, tametsi custodes non miserit, non evitabit, quominus quaeratur, an ex eo mulier praegnas sit...........................

(Ulpian in the thirty-fourth book on the Edict)

(3) The wife needs to do no more than give notice (to her husband) that she is pregnant by him. So she does not give notice to her husband to send guards; for it is enough for the woman to make it known she is pregnant. The husband’s role is then either to send guards or to give notice to her that she is not pregnant by him; but either the husband himself or someone acting in his name is allowed to do this. (4) The penalty for the husband is this: unless he sends guards or replies giving her notice she is not pregnant by him, the husband is compelled to ac­knowledge the offspring; if he does not acknowledge it, he is forced by extraor­dinary judicial measures. So he will have to answer that she is not pregnant by him, or response must be made in his name. If this is done, he will not otherwise have to acknowledge it unless it really is his son.... (16) Obviously, if the woman gives notice to him and he denies she is pregnant by him, then, even if he does not send guards, he will not avoid an inquiry as to whether the woman is pregnant by him................................

1. Guarding the Pregnant Woman. Under the Senatusconsultum (SC) Plan- cianum (a senatorial decree probably of the early second century A.D.), a di­vorced woman was allowed to notify her husband within thirty days of the divorce that she was pregnant by him (Ulpian, D. 25.3.1 pr.-1). The ex-hus­band then has the range of choices spelled out in this Case. His failure to an­swer concedes paternity of the subsequently born child, and so he may be held liable for the child's support.

whether or not the woman alleged to have made the substitution has died.” If a woman gives notice of her pregnancy and then refuses to accept judicially appointed guards, the ex-husband is free not to acknowledge the offspring as his own (Ulpian, D. 25.3.1.6).

2.      The Ex-Husband’s Failure to Act. If the ex-husband does nothing, he is li­able to support the child; but does that make him automatically the father as well? Not necessarily. Ulpian, in D. 25.3.1.12 (a troubled text), wrestles with a case in which a man neither sends guards nor denies paternity and is thus forced by the decree to acknowledge the child; still, he can argue that some­one else was actually the father, although his “admission creates great preju­dice in favor of the son.” Does this outcome seem about right?

3.      Failure to Give Notice. The jurists hold that the rights of the child are not jeopardized if the woman fails to notify her ex-husband of her pregnancy (so Julian, cited by Ulpian, D. 25.3.1.8, see 15). But why shouldn't they be, at least to some extent, since the husband loses the opportunity to deny pater­nity at an early stage or to guard against a changeling? Should the outcome depend on whether it was difficult to give the required notice?

4.   The Husband Dies.

ends through the death of a man who leaves a pregnant wife. Here a posthu­mous child may render the fathers will invalid, or at least the estate settle­ment may be complicated (see Cases 182-185). In such a situation, the Ro­mans use a device called bonorum possessio ventris nomine, whereby the praetor allows the dead fathers estate to be possessed by a guardian “in the name of the womb” (i.e., on behalf of the fetus). This arrangement is provi­sional until the child is born and its legitimacy established. See D. 25.5; 37.9. The praetors Edict, which probably antedates the SC Plancianum, also set out elaborate rules to safeguard the child's delivery. It suffices to quote a few of them (from Ulpian, D. 25.4.1.10): “Let the chamber in which the woman will give birth have no more than one entrance; if there will be more, let them be boarded up on either side. Before this room's door, let three free men and women keep guard with two companions. Whenever the woman goes into this room or elsewhere or into a bath, let the guards, if they wish, examine it beforehand and search those who enter....................... Let there be at least three lamps”

(since, notes Ulpian, darkness helps a substitution). What danger is feared?

5.      Judicial Determination of Paternity. A paternity case comes to court, and a iudex decides that a man is the father of a child; but subsequently discovered evidence establishes that this verdict is erroneous. Can the matter be re­opened? No; see Ulpian and Julian, D. 25.3.1.16-3.1. Why is this so? Does the outcome seem to you harsh or unfair?

6. The Social Adequacy of Law. These rules are all very complex, but they in­vite some thought about the underlying social issues. Are the interests of all the parties sufficiently protected? What are the costs of being so specific about competing rights? Are elaborate rules such as these inevitable in a time when paternity is important to personal standing but cannot be decisively es­tablished through scientific means?

D. 25.4.1 pr. (Ulpianus libro quarto ad edictum)

Temporibus Divorum Fratrum cum hoc incidisset, ut maritus quidem praegnatem mulierem diceret, uxor negaret, consulti Valerio Prisciano praetori urbano re­scripserunt in haec verba: “Novam rem desiderare Rutilius Severus videtur, ut uxori, quae ab eo diverterat et se non esse praegnatem profiteatur, custodem ap­ponat, et ideo nemo mirabitur, si nos quoque novum consilium et remedium sug­geramus. igitur si perstat in eadem postulatione, commodissimum est eligi hon­estissimae feminae domum, in qua Domitia veniat, et ibi tres obstetrices probatae et artis et fidei, quae a te adsumptae fuerint, eam inspiciant. et si quidem vel omnes vel duae renuntiaverint praegnatem videri, tunc persuadendum mulieri erit, ut perinde custodem admittat atque si ipsa hoc desiderasset: quod si enixa non fuerit, sciat maritus ad invidiam existimationemque suam pertinere, ut non immer­ito possit videri captasse hoc ad aliquam mulieris iniuriam. si autem vel omnes vel plures non esse gravidam renuntiaverint, nulla causa custodiendi erit.”

(Ulpian in the thirty-fourth book on the Edict)

During the reign of the deified brothers (Marcus Aurelius and Lucius Verus, A.D. 161-169), it happened that a husband asserted his wife was pregnant, but she denied it. When consulted, they (the coemperors) sent a rescript to Valerius Priscianus, the urban praetor, as follows:

“Rutilius Severus patently seeks a novel remedy, that he (be permitted to) appoint a guard for his wife, who had divorced him and insists she is not preg­nant. Thus, no one will be surprised if we furnish a new plan and remedy. So if he persists in this demand, the easiest solution is to choose the home of a most re­spectable woman, into which Domitia may come and there be inspected by three midwives of proven skill and trustworthiness, to be chosen by you. If all or two of them report that she seems pregnant, then the woman must be persuaded to allow a guard just as if she had wanted this herself; but if she does not give birth, the husband should know that this involves ill will and his own reputation, since he cannot implausibly be held to have seized on this to cause some affront to his wife. But if all or most (of the midwives) report she is not pregnant, there will be no further need for guards.”

1.      Denying Pregnancy. This situation is the opposite of that in Case 47. Under what appears to be an older procedure, the woman was summoned to appear in the praetors court and then forced to answer, under threat of fine or prop­erty forfeiture, whether she was pregnant (Ulpian, D. 25.4.1.2-4). What cir­cumstances might have led Marcus Aurelius and Lucius Verus to devise a new procedure? Do procedures such as these seem unduly obtrusive?

D. 43.30.3.5 (Ulpianus libro septuagensimo primo ad edictum)

Etiamsi maxime autem probet filium pater in sua potestate esse, tamen causa cog­nita mater in retinendo eo potior erit, idque decretis divi Pii quibusdam continetur: optinuit enim mater ob nequitiam patris, ut sine deminutione patriae potestatis apud eam filius moretur.

(Ulpian in the seventy-first book on the Edict)

Even if a father fully proves that a son is in his power, still, after an inquiry, the mother will (at times) prevail in keeping him, as is held by some judicial deci­sions of the deified Emperor Antoninus Pius (reign: A.D. 138-161). For because of the father’s depravity the mother obtained custody of the son in her home, (though) without decrease in patria potestas.

1.      Presumption of Custody. One of the most important points that emerge from this Case and other legal texts is that the usual modern legal presump­tion on custody (favorable to the mother) is exactly reversed in Roman law. The Roman presumption is stated, for example, by Ulpian (D. 25.4.1.1), with regard to a child born to a divorced wife: “Clearly, after the child is born, the husband can rightfully claim the boy through an interdict, either that it be produced or he be allowed to lead it away.” (Compare Chapter III.A.3, where the issue of custody is considered in more detail.) Even in later classical law, this presumption is overcome only if the husband is shown to be of unusually bad character: depraved, as in this Case. Finally, in the early postclassical period, the Emperor Diocletian reached a more bal­anced position (C. 5.24.1; A.D. 294): “Although no constitution of ours or of our deified ancestors provides that the division of children among parents be carried out on the basis of sex, still a competent judge will assess whether after a divorce children should stay with and be raised by the father or the mother.” In this Case, Ulpian stresses the continuance of patria potestas; is that realistic, do you think?

2.      Child Support. When the child remains with the mother, she can sue the fa­ther for what she is required to spend in raising the child. Ulpian, in D. 25.3.5.14, quotes a rescript of Marcus Aurelius: “But the judges will assess how much her father must provide you for the provisions you necessarily fur­nished to your daughter; nor should you receive what you would have spent on your daughter on the basis of your maternal love, even if she had been raised by her father.” How much guidance does this rescript provide to the judges?

D. 48.5.2.8 (Ulpianus libro octavo Disputationum)

Si simul ad accusationem veniant maritus et pater mulieris, quem praeferri oporteat, quaeritur. et magis est, ut maritus praeferatur: nam et propensiore ira et maiore dolore executurum eum accusationem credendum est, in tantum, ut et si pater praevenerit et libellos inscriptionum deposuerit, marito non negligente nec retardante, sec accusationem parante et probationibus instuente et muniente, ut facilius iudicantibus de adulterio probetur, idem erit dicendum.

(Ulpian in the eighth book of his Disputations)

If a woman’s husband and father simultaneously accuse her (of adultery), it is asked who should be preferred (as the accuser). The better view is that the hus­band is preferred, since it must be assumed that he will carry out the accusation with both sharper rage and greater anger. So much so is this true that the same should be held even if the father is the first to lodge the claims of indictment, (at any rate) if the husband was not careless or slow but was instead readying an ac­cusation and preparing and strengthening it with proofs so that the adultery might be more easily proved to the judges.

1.      How Should the Husband React? As this Case indicates, the Romans took a sour view of adultery by married women. The husband is usually presumed to react with rage (ira or calor) and anger (dolor), particularly when he has dis­covered his wife in flagrante delicto. Papinian (Coll. 4.11.1) relates this reac­tion to outrage over the invasion of his house (iniuria laesae domus); still, fears about the compromised paternity of offspring are probably not irrelevant.

2.      The Augustan Law on Adultery. The following Cases largely derive from the elaborate juristic commentaries on the lex lulia on adultery, a statute passed on the initiative of the Emperor Augustus in 18 B.C. This statute has wide im­plications for Roman criminal law, and so the materials below necessarily offer only a general introduction to its intricacies. What is clear, in any event, is that the statute greatly sharpened the penalties while also providing, at least in a general way, a new legal structure for evaluating sexual misconduct, par­ticularly by women.

3.      Evaluation. In reading the Cases below, try to evaluate the desirability of a law such as this one. Will it be effective in curbing adultery? What is the pub­lic interest in doing so, and how urgent is that interest? What are the negative consequences? Modern scholarly assessments of the Augustan legislation have varied widely, from enthusiasm (“an outstanding piece of legislation”: Hugh Last) to resigned pessimism (“a brake, though a feeble one, upon one sort of ethical decline”: John Buchan); but more typical of recent reactions is this: “By introducing such a structure of charge and countercharge, Augustus can hardly be thought to have raised the tone of conjugal life. He had merely made wife, husband, and their slaves and friends more insecure” (Susan Treg- giari, Roman Marriage). Decide for yourself.