Digest 25.4.1, praetor 1, Ulpian

In the time of the deified brothers, it happened that a husband said his wife was pregnant, and the wife denied it. Having been consulted, the emperor addressed a rescript to the urban praetor, Valerius Priscianus, which stated:

Rutilius Severus seems to be asking for something new, to set a guard over his wife, a wife whom he had divorced and who asserts that she is not pregnant, so no one will be surprised if we also suggest a new plan and remedy. So if he persists in the same request, it will be most fitting that a house of a most respectable woman be chosen, in which Domitia may come, and there three midwives, proven in both skill and trustworthiness and engaged by you, examine her. Then if all three of them, or two declare that she appears to be pregnant, then the woman is to be persuaded to allow in a guard just as if she had wanted this herself. If she does not give birth, the husband should realise that his reputation and honor are at stake, so that, not unjustly, he could be seen to have made this up in order to inflict some damage on this woman. If however, all three women or the majority of them announce that she is not pregnant, there will be no need for the guarding.

1. It is made extremely clear from this rescript that the decisions of the senate regarding the acknowledgement of children do not apply if a woman pretends that she is not pregnant or even denies it, and with good reason, for the offspring, even before it is born, is part of the woman or her insides. After the child is fully born, the husband has the right to request the child from the woman by means of an interdict [formal request via the praetor], or to have the child shown to him, or to be permitted to lead the child away.



Trans: T. Parkin and A. Pomeroy, Roman Social History: A Sourcebook (Routledge, 2007).


Analysis

Background:
This document provides unique insights into gender roles and Roman values, as well as how the Roman legal system protected them.
The document comes from Justinian's Digest, a collection of the writings of a number of Roman jurists compiled in the 6th century C.E. by order of Eastern Roman Emperor Justinian I. This particular excerpt is credited to Domitius Ulpianus, or Ulpian, who lived during the late 2nd and early 3rd century C.E. (his writings date from between 190-223 C.E.) (Honore 2010), and refers to an event that occurred sometime between 161 and 169 C.E. (possibly before Ulpian was born). Ulpian recounts a dispute between a husband who claims that his divorced wife is pregnant, and his wife who claims that she is not must be interpreted with some care because it has been twice filtered (once by Ulpian, and once by the compilers of the Digest). However, while the 6th century compilers likely leave some mark on this source, particularly through omissions of sections of Ulpian's original work that were not considered relevant (Grubbs 2002, pg 195), this excerpt can be used to make at least tentative inferences about Roman society in the late 100s and early 200s C.E.

Big Questions:
This perplexing passage raises a number of questions, the most pressing of which are:
If the woman is pregnant, who is the father?
And why is the husband demanding that his ex-wife be guarded?

The answer to the second question reveals a deep and almost ubiquitous concern for property in Roman society, and leads to at least a partial answer of the first. In Roman law, it was not unprecedented to set a guard on a pregnant woman. There are, in fact, very explicit instructions (Digest 25.4.1.10) on how the family of a recently deceased man may guard his widow if she claims that she is pregnant with the dead husband's child. While the above passage and the rules of woman guarding illustrate that, to a certain extent, childbearing was considered a female sphere (only midwives and women may actually be in the birthing room in Digest 25.4.1.10, midwives rather than doctors are told to inspect Domitia in the above passage, and in both passages the pregnant woman is to be kept "in the house of a respectable woman"), they also indicate that this sphere can be regulated by men. And why would it need to be regulated? To protect the rights of property and inheritance.

Property and Inheritance:
By producing an heir to a dead husband, a widow could effectively gain the inheritance of the deceased that would have otherwise gone to his relatives. The same concern is shown children born after a divorce when the ex-wife claims the unborn child to be a legitimate heir. This was apparently such a widespread issue that the Senate passed a decree in the early second century, which codified how a divorced woman could force her ex-husband to acknowledge paternity of a child (Grubbs 2002, pg 200). This situation, too could result in the guarding of the pregnant woman, though it often was simply resolved by the husband denying his paternity (in which case there was apparently no recourse for the pregnant woman), or the husband acknowledging and supporting the child with less worry of substitution than in the case of a pregnant widow (Treggiari 1991, pg 467).

The dispute between Rutilius Severus and Domitia is a rare case in which the husband, rather than the wife, claims that an heir will be born after the divorce. At first glance, this could be an attempt by the husband to ruin the wife's reputation by publicizing the child of an extramarital affair. However, by acknowledging the child, Rutilius Severus is implicitly claiming it as his own. Moreover, Augustus's anti-adultery legislation was, at least in theory, still in effect during the second and third centuries C.E., with which Severus could have more effectively prosecuted his wife. Thus, in this case Severus is claiming that the child is his, though he may have had financial incentive to claim the child even if he were not the true father of the child.

Severus may have had financial incentive to make this claim because in Roman law, a woman who was not married in manus (i.e. she retained her right to hold property), could not only unilaterally divorce her husband, but could sue for the return of her dowry upon divorce. However, if the marriage had produced children, the husband could retain a portion of the dowry in order to support the children. Thus, if Domitia belonged to a more wealthy family than Severus, or perhaps if Severus was seeking petty revenge for the divorce, he could have stood to gain a portion of Domitia's dowry by claiming that the marriage resulted in an heir.

A Conflict of Genders:
Regardless of Rutilius Severus's motives for claiming the child (perhaps he simply lacked an heir and wanted someone to perpetuate the family), this passage also brings up an interesting conflict between male and female rights and powers in Roman society. While other legislation codifying the guarding of pregnant women was meant to ensure that a substitute baby was not produced by a woman who claimed she was pregnant but was not, R. Severus presumably wants to keep a real baby from disappearing from a woman who claims she is not pregnant but is. Whether this could be the woman hiding the birth, running away, or aborting the fetus, any action on her part would represent a violation of patria potestas, the power of life or death that all Roman fathers had over their children. Thus, the this passage and Roman law in general clearly protect the father's right over his legitimate heirs, to the point of infringing on the female sphere of childbirth. However, in the passage Ulpian also makes clear that the child is part of the woman (and thus under her power) until it is born, protecting to a certain extent the inherent right of a woman over her body (though power over the child reverts to the father immediately upon birth). While there are documented instances of children remaining with their mother after a divorce (either because the children were very small, or the father was particularly disreputable), in no circumstances did the father lose his ultimate power over the child. As this passage hints, Roman law regarding divorce and legitimacy walked the fine line between protecting male rights to family and property, and disregarding practicality and female rights (limited as they were).

Ulitmately, this passage reveals the conflict between male and female rights represented by post divorce pregnancy. It also illustrates how Roman law codified these gender roles and powers. Because this passage and other relavent legal texts focus primarily on the question of legitimacy of heirs, it also implies the overarching power of property in Roman society.

Further Connections:

The power of property, the protection of property rights by Roman law, and the importance of marriage as a fiscal institution is highlighted in Marriage Contract. The apparent fear of women taking fiscal advantage of their husbands (why else would you make a wife sign such an explicit document?) provides further evidence that property and fiscal matters were a major means of agency in Roman society. For instance, in Kronion's Will, Kronion snubs his errant son by cutting him out of his inheritance.
Soldiers' families provides another interesting perspective on marriage, legitimacy, and inheritance. While many of the cases in that document center around questions of citizenship (and presumably the rights entailed by citizenship), a number also involve legitimacy and inheritance. It is worth noting that legally there was little condemnatory recourse against soldiers who married while in the army (see Augustus' Decree for more on the marriage ban). Instead, the only penalty that could be enforced was against the legitimacy of the children produced by such a union, particularly their ability to inherit property. In this context, property and the rights of property ownership appear to be not just a means for individual agency, but also a subtle legal penalty for otherwise unenforceable laws.


Comments:

I think you have done a really thorough job in the analysis section. The only thing I might suggest adding is a small paragraph or even a subsidiary link which briefly discusses the lives of Roman midwives. - Mark Wieland

I concur entirely with Mark as regards the thoroughness of your research. Your investigation of the topic appears, at least to my eyes, exhaustive and quite nearly comprehensive - great work!

If I might be allowed to suggest a few structural changes - which you are of course free to ignore if you wish - I would have found it helpful to have your analysis section split up into its several component parts and redistributed into segments of more digestible size, either under separate headings or within the text of the document itself. By the time I finished reading your analysis, which is admirably lengthy, I'd not only forgotten which parts of the document it was referring to, but I'd forgotten the beginning sections of the analysis itself. As a result, I had to keep scrolling back and forth from the document to your analysis (which is very good), and then look through your many paragraphs to find the right reference.

Other than that, though, terrific job - you clearly did a ton of very impressive research!

Miles Unterreiner

I definitely concur - you have done exhaustive amounts of research, and there is little to suggest looking into more except perhaps how geography might affect the different rights or outcomes of such a situation. Would citizenship make a difference? - Taylor Goodspeed

Your analysis is impressively full and detailed. Maybe it would have been useful to ask the broader social questions right at the outset, but the way you begin with concrete questions about the case at hand and then widen your scope works very well and is an exemplary use of a primary document. - James Kierstead

Works Cited:

(1) The Cambridge Ancient History, Volume XII. 2nd edition. Bowman, A., Garnsey, P., Cameron, A. (eds.), (Cambridge University Press 2005).


(2) Grubbs, J.E. Women and the law in the roman empire: a sourcebook on marriage, divorce, and widowhood, (Routledge 2002).

(3) Honore, T. Justinian's Digest, (Oxford University Press 2010).

(4) Parkin, T. and A. Pomeroy. Roman Social History: A Sourcebook (Routledge, 2007)

(5) Treggiari, S. Roman marriage: iusti coniuges from the time of Cicero to the time of Ulpian, (Clarendon Press 1991).

Bibliography:

"Augustus' Moral Legislation: Family Values." Pearson Education 2009, <http://dev.prenhall.com/divisions/hss/app/BW_TEST/Western_History/documents/Augustus_Moral_Legislation_Family_Values_
18_BCE.htm>, accessed 5/14/2011.

Boatwright, T.M., D.J. Gargola, and R.J.A. Talbert. A Brief History of the Romans, (Oxford University Press 2006).

Dixon, S. The Roman Mother. (Croom Helm 1988).

MacMullen, R. Roman Social Relations, (Yale University Press 1974).

Roby, H.J. An Introduction to the study of Justinian's Digest, (Cambridge University Press 1886).

"Ulpian." Encyclopædia Britannica. Encyclopædia Britannica Online . Encyclopædia Britannica, 2011. Web. 15 May. 2011. <http://www.britannica.com/EBchecked/topic/613301/Ulpian>.