B Non-marital unions based on social status

Roman law refused to recognize some unions as legitimate marriage because of the legal status of one or both partners.

1   Slave unions and slave-free unions

Marriage between slaves or between a slave and a free person was a legal impossibility, though relationships between free persons and slaves certainly occurred in real life. If monogamous and long-lasting, such a union would be called contubernium, as would a union between two slaves. Such quasi-marital relationships are often attested in funerary inscriptions from the city of Rome [Weaver 1972, 1986; Rawson 1974; Treggiari 1981b; Flory 1978; 1984].

Rules ofUlpian 5.5: There is no right oflegalmarriage (conubium) with slaves. Sent. Pauli II.xix.6: Between slaves and free people marriage (matrimonium) is not able to be contracted, but contubernium can be.

Children born to such unions were not legitimate and followed the legal status of their mother: if she was a slave, they were slaves and belonged to her master. If she had been freed before giving birth, her children were freeborn [Weaver 1986; 1991]:

Gaius, Institutes I.82: It also follows from these (rules) that by the law of nations (ius gentium) a slave is born from a slavewoman and a free man, and on the other hand, a free person is born from a free woman and a slave man.

Gaius, Institutes I.89: It also has been decided that if a slavewoman has conceived from a Roman citizen and then has given birth after being manu­mitted, (the child) who is born is born free; this (has been decided) by natural reason.

Though these rules sound relatively simple, the reality could be quite complicated. In a society which did not require written documentation for the validity of legal transactions [see Chapter 2, Part I.A], freedpeople might not be able to prove that they had been manumitted, and it might not be clear whether the child of a freedwoman had been born after the mother's manumission (in which case the child was freeborn) or before (in which case, the child would have been slaveborn). An actual case of such confusion is known from the wax tablets unearthed at the town of Herculaneum (destroyed by the eruption of Vesuvius in 79 C.E.). Petronia Justa, the daughter of a freedwoman, was in dispute with her deceased mother's former mistress, Calatoria Themis, who claimed that Justa had been born before her mother was manumitted, and had later been manumitted by Calatoria Themis herself.¹⁰

If both partners in a slave contubernium were legally manumitted¹¹ and wished to continue in a marital relationship, the union automatically became legal marriage. Funerary epitaphs erected by former slaves show the efforts many ex-slaves made to preserve and commemorate their unions and, if possible, free their slaveborn children from slavery [Rawson 1966; Bradley 1987, 47—52]. Children born thereafter were freeborn and legitimate. Those born before the union became marriage were, however, illegitimate, and if their mother had been a slave at their birth, they remained slaves of her former master.

If a slave contubernium were converted into a legal marriage, any non-legal “dowry” brought by the slavewoman might become legal also:

D.23.3.39 pr.

On the other hand, it was possible that one partner might mistakenly think she or he was legally married when in fact the other partner's status precluded iustum matrimonium. Thus the emperor Caracalla replied to a woman named Hostilia, who was the victim of a case of mistaken identity:

Cod. Just. 5.18.3, 26 August, 215

Emperor Antoninus (Caracalla) Augustus to Hostilia:

If, in ignorance of Eros’ status, you married¹³ him as if a free man and gave him a dowry, and he afterwards was judged a slave, you will get your dowry back out of his peculium, along with anything else it appears that he owed you. Moreover, your children are understood to be illegitimate free­born, as they were born from a free mother but an “uncertain” father. Posted on the sixth day before the Kalends of September in the second consulship of Laetus and the consulship of Cerealis.

Hostilia had married a man named Eros,¹⁴ thinking he was free. But later it was revealed that he was a slave of someone else, who no doubt had reclaimed ownership. Hostilia had brought a “dowry” to what she assumed was a legal marriage, and when the union was broken up by Eros' return to slavery, she wanted to bring an action for its return.

Because children normally followed their mother's status in a non-legal marriage, the chil­dren she had with Eros are freeborn rather than slaves. But because slave family relationships were not legally recognized, Eros could not be considered the father, and the children were legally fatherless.

2    The senatusconsultum Claudianum

A union between a free man and a slavewoman was not penalized, except that it did not have the status of legal marriage and their children were slaves and illegitimate.¹⁵ But a quasi­marital union between a free woman and a slaveman was more problematical. In part this was because of long-standing Roman ideas about gender and status hierarchy, which disapproved of relationships where the woman was socially superior to her partner [cf. Part I.B.3 below on patrona—freedman marriages]. But there was another, more practical, factor: whereas the chil­dren of a slavewoman by a free man would belong to her master (who would then benefit by the increase to his slave supply), the children engendered by a slaveman in union with a free woman would not belong to his master, but would be her own, freeborn, illegitimate chil­dren.

In 52 C.E., Pallas, the powerful freedman of the emperor Claudius, proposed a law to meet this problem. Known as the senatusconsultum Claudianum (“Claudian decree of the Senate”), the law was probably intended to benefit especially the imperial household, whose male slaves frequently married free women [see Weaver 1972, 162—8; 1986, 150—4; for the s.c. Claudianum in late antiquity, see Part II.B.4.].

Tacitus, Annales XII.53 (written early 2nd c.)

Among the things which he (Claudius) referred to the senators (was a proposal) about the punishment of women who were joined with slaves. It was decided that, if the (slave’s) master was ignorant (of the union), they would for that reason fall into slavery, but if he had consented, they would be considered his freedwomen. To Pallas, who Caesar (Claudius) had disclosed was the originator of this proposal, the consul designate Barea Soranus decreed the insignia of praetorian rank and fifteen million sesterces.... [the rest of the passage is omitted here]

Gaius, Institutes I.84: For observe that as a result of the s.c. Claudianum, a Roman citizen woman who joins with someone else's slave when his master is willing was able to remain free herself on the basis of this agreement, but to give birth to slaves. For that which was agreed between her and that slave's master is ordered to be ratified on the basis of the Senate's decree. But afterwards the deified Hadrian, moved by the policy's inequity and the law's inelegance, restored the rule of the law of nations:¹⁶ that when the woman herself remains free, she gives birth to a free child.

After Hadrian’s modification of the original law, a free woman cohabiting with a slave without his master’s permission became the master’s slave, as did her children.

Around the beginning of the fourth century, the Sent. Pauli set forth a number of different scenarios in which a free woman would be affected by the law [Evans Grubbs 1993, 136—7]:

Sent. Pauli II.xxi^a (selections)

2     A daughter under her father's power (filiafamilias), if she has joined herself to someone else's slave without her father's knowledge or against his wishes, keeps her own (freeborn) status even after warning, since the parents' status cannot become worse by the children's act.¹⁷

10 If a daughter under her father's power has, at her father's command, entered into contubernium with someone else's slave against his master's will, she does become a slave, since parents are able to make their children's status worse.

12    If a woman who mistakenly thought she was a slave, and therefore entered into a contubernium with someone else's slave, has continued in the same contubernium after learning that she is free, she does become a slave.

13    If apatrona (former mistress) has joined herself to her freedman's slave, it has been decided that she not become a slave even after the warning.

16 If a mother has joined herself to her son's slave, the s.c. Claudianum does not remove the respectful reverence due to a mother, even in a shameful matter, by the example of the woman who has joined herself to her freedman's slave.¹⁸

18 A daughter in her father's power, if she has persevered in contubernium with a slave after her father's death, becomes a slave, consistent with the policy of the s.c. Claudianum.

3     Unions between women and their freedmen

In general, under the Empire marriage between freeborn people and former slaves (libertini, feminine libertinae') was legal; only members of senatorial families were forbidden to marry former slaves [see II.B.4 below].

Marriage between a former master (patronus) and his liberta was not uncommon, and funerary epitaphs record many such marriages. (There were those, however, who considered concubinage between a patron and his freedwoman to be more appropriate than marriage: see Part I.B.5 below.) In fact, manumission “for the sake of marriage” ((matrimonii causa} was a valid reason to free a slave under the legally-required age of thirty.¹⁹ (Moreover, a woman freed in order to marry her master could not divorce him against his will: see Chapter 4, Part I.D.)

On the other hand, it was felt that marriage between a female patron (patrona} and her former slave (libertus} was inappropriate [Evans Grubbs 1993]. This was believed (by members of the elite, including the jurists and emperors commenting on such relationships) to be fitting only in the case of a woman who had been freed from slavery first and was freeing her former partner in slavery, a situation suggested also in funerary epitaphs [Flory 1984]:

D.40.2.14.1 (Marcian): There are those who think that even women can manumit “for the sake of marriage,” but only if, by chance, her own fellow slave has been bequeathed to her for this reason.

D.23.2.62.1 (Papinian): A woman is joined to the freedman of her (former) husband or patron improperly.

D.23.2.13 (Ulpian): If a patrona is of such low birth (ignobilis) that even marriage with her own freedman is honorable for her, it (the marriage) ought not to be prohibited by the office of the judge holding a hearing on this matter.

Ulpian's statement (D.23.2.13, above) implies that patrona—libertus marriages where the woman was not herself of slave birth or low status were now considered illegal and subject to prosecution.²⁰ A rescript of Septimius Severus and Caracalla to a woman named Valeria bears this out:

Cod. Just. 5.4.3, 14 November, 196

Emperors Severus and Antoninus (Caracalla) to Valeria:

You will be able to lay charges against a freedman who dared to marry his patroness, or the daughter, wife, granddaughter, or great-granddaughter of his patron, with the appropriate judge. He will give a sentence in accordance with the mores of my reign, which have rightly considered such unions to be odious. The Ides of November in the second consulship of Dexter and the consulship of Priscus.

It is not clear what the legal grounds for such a prosecution would be. As a woman, Valeria could not herself bring a charge of stuprum or adultery; indeed, she could not undertake a pros­ecution except in cases involving her or her immediate family [see Chapter 1, Part V].

The Sent. Pauli, dating from the late third or early fourth century, gives the penalty for the freedman who “dared” to marry his former mistress:

Sent. Pauli II.xix.9: It has been decided that a freedman, who has aspired to marriage with his patrona or with the wife or daughter of his patron, is to be suppressed by the penalty of the mines or the public works, depending on the rank of the person.²¹

Despite the legal restrictions on patrona—libertus marriages, funerary epitaphs indicate that they did take place [Evans Grubbs 1993, 130-1].

Some women may have hoped to avoid the law's consequences by not marrying their freedman, but living in contubernium with a slave. Christian writers of the early third century suggest that women of high status (presumably from senatorial families), who would lose their rank if they married someone of lower status, chose to cohabit with slaves or freedman instead.²² A particularly egregious case of a free woman living in a monogamous relationship with her slave is known from a rescript of the emperors Diocletian and Maximian:

Cod. Just. 7.20.1, 18 June, 290

Emperors Diocletian and Maximian Augusti to Theodora:

You declare that your mother's slave both defiled his own mistress by illicit sexual relations (stuprum) and wished to cover up the stain of this shameful union by colluding, before the appropriate judicial authority, in a claim of pretended free birth and the cover of a (claim of) false captivity. Nor, you claim, did your mother actually free him, but she attempted to bring him into the condition of a freeborn person by a lie based purely on her own wish. It is thus clear that he is a slave, since he does not appear to have been made freeborn under the terms of the rescript of the deified Antoninus Pius concerning captivity — which you claim did not occur — nor did his claim of your consent have the power to confer the right of free birth. Posted on the fourteenth day before the Kalends of July in the consulship of Diocletian and Maximian.

Theodora claimed that her mother and her mother's slave had lived in an illicit sexual relationship (stuprum), which they had attempted to disguise by pretending that the slave had been born free, captured by barbarians, been redeemed from captivity by Theodora's mother, and then had gone through the process of reclaiming the right of free birth (Jngenuitas) that he had supposedly lost in captivity. Now, it appears, her mother is dead, and Theodora wants the slave “husband” punished. A sexual relationship between a free woman and her slave was punishable as stuprum (if she were not married) or adultery (if she were), and, as we have seen, even marriage between a woman and her freedman was also subject to penalty. Theodora's mother and her slave had therefore (according to Theodora; we do not know if her accusation was true) colluded in a spurious claim of free birth for the slave — which was also punishable, if discovered [Evans Grubbs 1993, 137—40]. Under the legal circumstances, it was the only way Theodora's mother and her lover could hope to have their relationship considered marriage by those who did not know his true origins.

4    Unions between senators and former slaves

Augustus' lex Julia de maritandis ordinibus (Julian law on the Marrying of the Social Orders) forbade the marriage of a senator or his child or grandchild with a freedperson. The same restrictions applied to senatorial unions with others of low-degree: those who were public entertainers, or who were marked with legal infamy (infamia). Freeborn men who were not of senatorial rank could legally marry freedwomen other than prostitutes, procuresses or condemned adulteresses [McGinn 1998, 91—104; see Chapter 2, Part I.B].

The ramifications of the lex Julia elicited considerable juristic discussion. Several jurists, particularly Ulpian and Paulus, devoted entire books to the Augustan legislation, from which a number of the excerpts below and in Part I.B.5 (on concubines) were taken.²³

D.23.2.44 pr. (Paulus): The Julian law decrees thus:

"Whoever is a senator, or whoever is or will be his son, or a grandson from a son, or a great-grandson born from a son, shall not knowingly or deceitfully have as fiancee or wife a freedwoman or a woman who herself or whose mother or father leads or has led a career on the stage. Nor shall the daughter of a senator, nor a granddaughter born from a son nor a great­granddaughter born from a grandson born from a son, knowingly and deceitfully be a fiancee or wife to a freedman or to a man who himself or whose father or mother leads or has led a career on the stage, nor shall any of those men deceitfully and knowingly have her as a fiancee or a wife.” D.23.2.23 (Celsus): The Papian Law decrees that all freeborn men except senators and their children are permitted to have a freedwoman as wife.

If a senator did want to live with a freedwoman as a wife, the marriage would not be in compliance with the Augustan marriage laws and therefore the partners would be subject to the penalties on their right to inherit [see Chapter 2, Part I.B]. That meant that they could not inherit from each other, or receive a legacy from anyone beyond the sixth degree of kinship:

Rules of Ulpian 16.2: Sometimes (husband and wife) receive nothing by inheritance from each other, that is, if they have contracted marriage against the Julian and Papian—Poppaean law. For instance, if anyone has married a woman with legal infamy, or if a senator has married a freedwoman.

D.23.2.44.6 (Paulus): If afterwards (that is, after she has already married a senator) the father or mother of a freeborn wife begins to lead a career on the stage, it is most unjust for him to have to dismiss her, since marriage was honorably contracted and perhaps children have already been born. 7: Of course, if she herself begins to lead a career on the stage, she must by all means be dismissed.

D.23.2.27 (Ulpian): If a member of the senatorial order has a freedwoman as a wife, though in the meantime (that is, while he is a senator) she is not a wife, however she is in such a situation that, if he should lose his rank, she shall begin to be his wife.

It was possible for senators, who of course had much more influence than ordinary citi­zens, to circumvent this law with imperial permission:

D.23.2.31 (Ulpian): If a senator has been permitted by the emperor's indul­gence to have a freedwoman as a legitimate wife, she is able to be a legitimate wife.

Sometimes even senators might not know the legal status of their partner, as appears to have been the case with a senator who had been deceived into “marriage” with a freedwoman. Such a case came before the emperor Antoninus Pius (reigned 138—61):

D.23.2.58 (Marcian): It was stated in a rescript by the deified (Antoninus) Pius, that if a freedwoman has deceived a senator as if she were freeborn and has married him, a legal action should be given against her on the model of the Praetor's Edict, since she has no gain from a dowry which does not exist.

Since there could be no dowry in non-marital unions [cf. Cod. Just. 5.18.3 in Part I.B.1], a freedwoman who had brought what she considered dowry to a union with a senator could not get it back if the marriage ended, as a legally married wife could.

Augustus’ general prohibition against marriage between members of the senatorial order and former slaves was strengthened in the second century by a ruling of Marcus Aurelius. This ruling said that marriage between a woman of senatorial status and a freedman was null and void, that is, it had none of the effects of legal marriage. Prior to this time, it appears that a marriage in contravention of the Augustan laws was evidently iniustum matrimonium, and still had some of the legal effects of marriage.²⁴ Marriage between a high-ranking woman and a low-ranking man was especially offensive to elite Roman sensibilities, because it ran counter to the assumption that the husband was the superior partner [Evans Grubbs 1993].

D.23.2.16 pr. (Paulus): A speech ff the deified Marcus dccrees that, if a senator's daughter has married a freedman, it is not marriage; and a decree of the Senate followed (the emperor's decision).

Even if her father was ejected from the senatorial order, she retained her rank, and so still could not marry a freedman:

D.23.2.34.3 (Papinian): Her father's fall from rank does not make the daughter of a senator who has married a freedman a (legal) wife. For rank (dignitas) that has been acquired should not be taken away from children on account of their father's crime.

Only if she lowered herself in society by engaging in a dishonorable profession (prostitu­tion or acting) would she lose her rank and no longer be subject to the Augustan restrictions on marriage with former slaves:

D.23.2.47 (Paulus): A senator's daughter who has earned money with her body or has led a stage career or has been condemned in a public trial, can marry a freedman with impunity. For honorable rank is not preserved for one who has led herself into such shame.

5    Concubinaaue (concubinage)

Concubinatus, usually translated as “concubinage,” was a non-marital relationship that in Roman society served as an alternative to legitimate marriage. A Roman man would have a concubine instead of a wife, not in addition to a wife (though he might have mistresses, or casual sexual relationships with his slaves). Concubinatus was not illegal, but did not carry the legal rights of marriages: a concubine’s children were not legitimate, and were not automati­cally the heirs of their father, as children born in legal marriage were. Normally the concubina was of a lower status than her man (there is no Latin word to describe the male partner in concubinatus), usually a freedwoman, though freeborn women of humble birth might be concubines [Rawson 1974; Treggiari 1981a].

The Augustan restrictions on marriage between men of senatorial status and freedwomen meant that a senator (or his son or grandson) who wished to have a monogamous relationship with a freedwoman had to live with her in concubinatus rather than marriage. Thus it has been said that Augustus’ laws “indirectly encouraged the rise of respectable concubinage as an institution recognized in its own right” [McGinn 1991, 338]. This in turn led to juristic discussion of the status of concubines, especially regarding who could be a concubine without both partners risking prosecution for illicit sex (stuprum) under Augustus’ adultery statute [see Chapter 2, Part I.B. on the adultery law].

It was sometimes difficult to tell if a woman was a wife or a concubine, but her status relative to that of her partner, and the way he treated her, were indicators. Concubines were generally of lower social status than wives. And if it appeared that the couple’s intention was that she be a concubine rather than a wife, then presumably she was [Treggiari 1981a, 63]:

D.25.7.4 (Paulus): It is necessary (for a woman) to be considered a concu­bine solely on the basis of intention.

D.32.49.4 (Ulpian): Moreover, it matters little, whether someone leaves as a legacy to a wife or a concubine those things which were bought and provided for her sake. For of course there is no difference at all (between wife and concubine) except in rank (dignitas).

Thus the woman’s status, relative to her partner’s, could be an indication of which of the two she was intended to be [Treggiari 1981a, 63—4]. Former prostitutes, for instance, were more appropriately concubines:

D.23.2.24 (Modestinus): In regard to sexual intercourse with a free woman, marriage, not concubinage, ought to be understood, if she has not been a prostitute.²⁵

D.25.7.3 pr. (Marcian): Both someone else’s freedwoman and a freeborn woman can be held in concubinage, and especially a woman who was of low birth or has been a prostitute.²⁶

Roman">If the woman was of appropriate status to be a concubine and was not married to someone else, the relationship was not adulterous:

D.25.7.3.1 (Marcian): Nor is adultery committed by a man through having a concubine. For because concubinage has taken its name through the laws, it is outside the penalty of the law, as Marcellus also wrote in the seventh book of his digests.

Most concubines were freedwomen rather than freeborn [Rawson 1974; Treggiari 1981a, 64—71]. A man might have his own freedwoman as a concubine rather than a wife (though, unless he was of senatorial status, he could marry her; see Part I.B.4). Such a liberta-concubine was granted respect almost equal to that of a legally married wife of respectable standing:

D.23.2.41 (Marcellus): Dishonorable conduct is understood also in those women, who used to live shamefully and were prostitutes, even if not openly. And if any woman handed herself over into concubinage with someone other than her patron (former master), I say that she did not have the honor of a materfamilias .²⁷

Indeed, Ulpian thought it was more socially appropriate for a freedwoman to be the concubine of her patron than his wife, unless he were himself of humble status [see Treggiari 1981a, 72]:

D.25.7.1 pr. (Ulpian): Will a woman who is in concubinage be able to leave her patron if he is unwilling, and to give herself to another either in marriage or in concubinage? I, at least, judge that the right of marriage (conubium) should be taken away from a concubine if she deserts her unwilling patron, since certainly it is more honorable for a patron to have his own freedwoman as concubine than as a materfamilias.

Just as a freedwoman married to her patron could not divorce him and marry someone else without his consent [see Chapter 4, Part I.D], so Ulpian believed that a freedwoman concu­bine should not take another partner without her patron's permission. He also thought that a man could bring charges against his liberta-concubine for adultery, though not as a husband but as a third party (extraneusY

D.48.5.14 pr. (Ulpian): If it was not a wife (caught) in adultery, but a concubine, he will not be able to accuse her with a husband’s right, since she was not a wife. However, he will not be prevented from instituting an accu­sation by the right of a third party, if only she is a woman who did not lose the name of matron in giving herself in concubinage, as for instance, she who was the concubine of her patron.

Ulpian applied the same rules to concubinage as to marriage in other respects also, for instance in regard to the age when a girl could be a concubine [see Chapter 2, Part I.C.1 for age at marriage]:

D.25.7.1.4 (Ulpian): Clearly it is possible to have a concubine of any age whatsoever, unless she is under twelve years old.

Moreover, Ulpian thought that prohibitions on marriage with former in-laws should be applied to concubinage as well as marriage [cf. Gaius, Institutes I.63 and D.23.2.12.1 (Ulpian), in Part I.A.1]. The same sentiment appears in a rescript of Alexander Severus, below.

D.25.7.1.3 (Ulpian): If a woman was in concubinage to her patron, then began to be the concubine of his son or grandson, or vice versa, I do not think she behaves properly, since a union of this kind is almost wicked, and therefore a wicked act of this sort ought to be prohibited.

Cod. Just. 5.4.4, 11 April, 228

Emperor Alexander Augusti to Perpetuus:

Children are not able to take as wives the concubines of their parents, since they appear to be committing an act that is not at all pious (religiosa) or commendable. Those who have acted contrary to this are committing the crime of stuprum (illicit sex). The third day before the Ides of April in the consulship of Modestus and Probus.

In unions not recognized as legal marriage (iustum matrimonium), the usual rule against gifts between spouses [Chapter 2, Part I.E] did not apply. Thus a concubine, unlike a wife, could receive gifts from her partner. But if, as sometimes happened, a man later married the woman who had been his concubine, any gifts made after the union became marriage would be invalid. The point at which concubinatus became matrimonium could be difficult to pinpoint; again, the couple's intent and behavior toward each other would be the basis for judging [Treggiari 1991a, 51]:

D.39.5.31 pr. (Papinian): It is fitting that gifts given to a concubine are not able to be revoked, nor does what previously was legally valid become invalid, if marriage was later contracted between the same persons. However, I replied that we must carefully examine whether marital honor and senti­ment already preceded (the giving of the gift) for some time previously, after comparing the persons involved and considering their way of life together. For marriage tablets do not make a marriage.²⁸

The anomaly that a legitimate wife could not receive a gift from her husband during marriage, but someone in a non-marital relationship could, disturbed Ulpian:

D.24.1.32.28 (Ulpian): But if a senator has become betrothed to a freed­woman or a guardian to his ward or any other of those who are prohibited to join in marriage, and he has married her, would the gift be valid as if it were made during betrothal? And I should think indeed that these betrothals are to be condemned and that those gifts which are made, as if by unworthy people, are seized and claimed for the imperial treasury.

D.24.1.3.1 (Ulpian): Let us see between which people gifts have been prohibited. And indeed if a marriage stands according to custom and law, the gift will not be valid. But if some impediment should intervene, so that it not be marriage at all, the gift will be valid. Therefore if the daughter of a senator has married a freedman contrary to the decree of the Senate, or a provincial woman has married the man who governs her province or who gains (office) there, against the rules, the gift will be valid, since the marriage is not.²⁹ But it is not right for those gifts to be valid, nor should the situation of those who are transgressing be better. However, the deified (Septimius) Severus ruled the opposite way in the case of the freedwoman of the senator Pontius Paulinus, because she was not considered with the dispo­sition of a wife, but rather of a concubine.

Septimius Severus had decided that Pontius Paulinus had considered his freedwoman as a concubine, not a wife (as a senator he was prohibited from marrying her under the Augustan legislation, see I.B.4). Thus she could receive gifts from him. Ulpian does not like the deci­sion, but his may have been a minority opinion [cf. Treggiari 1981a, 75].³⁰

Papinian mentions another case, also decided by Septimius Severus, involving a man of senatorial status and his freeborn concubine (whom he could have married, since she was not a freedwoman; presumably she was of very humble status). He had named his illegitimate daughter by his concubine as a co-heir, and questions arose about the validity of her claim. Apparently the emperors (Septimius Severus and Caracalla) allowed Rufina to inherit despite her illegitimate status, though it is not clear exactly what their decision was. Some people evidently thought the relationship of Cassianus and Rufina was stuprum rather than concubi­natus, and wished to deny the daughter’s claim [see Rawson 1986a, 178—9; McGinn 1991, 354-7].

D.34.9.16.1 (Papinian): Since it has been agreed that (a charge of) stuprum is not incurred in the case of a woman who allows herself to be the concu­bine of someone other than her patron, an action will not be denied in regard to what was left in the will of the man who had (such a) concubine.³¹ Our best and greatest emperors made this judgment regarding the will of Cocceius Cassianus, a man of senatorial status, who had loved and esteemed Rufina, a freeborn woman, with full honor. Her daughter, whom Cassianus had called his foster-daughter (alumna) in his will and had appointed as co­heir with his granddaughter, appeared to have been illegitimate.