Status of Illegitimate Children in Rome

[Rugged Indoorsman]

Hello all,

 

I'm very much new here- this is my first post in fact. I thought I'd start with a question that my wife and I were trying to find solid information on, but simply couldn't. We're currently planning to write a book wherein the answer will determine how things flow.

 

The question is, basically: if a Roman man and woman were to conceive a child, but were not married, what would be the status of that child, under a few different circumstances:

 

1) If they were both married to others, and both of the patrician class.

2) If they were both married to others, and the man was a higher class.

3) If they were both married to others, and the woman was a higher class.

4) If the man was married, but the woman wasn't.

5) If the woman was married, but the man wasn't.

6) If neither were married.

 

Also, would the gender of the resulting child make any sort of difference? Another related question is, what were the cultural standards, if any, of adopting girls?

 

Thanks for reading,

-RI

[Maty]

As far as I know - and others will correct me if I am wrong - in Roman law, if a couple are married, any children of the wife are assumed to be of that union. This even applies if the father happened to have been off governing a province on the other side of the Mediterranean fro the past two years. However, the father has the option of rejecting the child for any reason whatsoever, whether he believes it is his or not. This decision would usually be taken after consultation with a family consilium (council). If this happens the outlook for the child is usually bleak.

 

With an unmarried mother, a marriage would probably be hastily arranged, or failing that a 'holiday' to a distant relative. In any case, the decision as to what became of the child depended on the man in whose potestas (power) the woman was. Note that the children of women slaves were automatically slaves. In most other cases this would depend on the status of the father, though things get tricky if the woman is a foreigner (peregrina). If you can, look for a book called The Institutes of Gaius. It's a legal text that goes into this sort of thing with immense detail and relish.

[ParaVox3]

Hi, I'm Rugged Indoorsman's wife.

 

Thank you so much for your response. This is the scenario we're slowly working out, and we'd very much like any feedback of the following nature: 1) Is it plausible? 2) What should we be careful of to avoid any major faux pas?

 

In the story, the background of the main characters begins with two patrician families (or one patrician and one very rich equestrian). The main family is patrican, however, either way.

 

In the history of the main family (patrician), the man is married to a woman and has at least two sons and one daughter with her, perhaps more. However, he has fallen in love with the wife of another man (either another patrician or equestrian family). He gets her pregnant while her husband is off doing whatever (possibly war, or if equestrian, business). When the cuckold comes home and finds his wife pregnant, he's furious. Either he kicks her out (and does not divorce her) or he makes it clear he'll never acknowledge the child and she walks out on him. Having nowhere to go (perhaps her family is upset over her betrayal), she goes to her lover and tells him she is pregnant with his child. He sets her up in a villa and essentially takes her to be his mistress. She has the baby, a girl, and he adopts her.

 

At this time perhaps the husband of the mistress may get into some legal battle with the patrician over 'their' daughter. My understanding is that patricians were well neigh unassailable in court by lower classes, so I imagine that the patrician would handily win the case if his opponent were equestrian, and perhaps some bribery to officials may go in if the 2nd family is patrician. In any case, despite the mechanism, the daughter is adopted by the patrician pater familias.

 

Eventually, the wife of the pater familias dies and so does the husband of the mistress. They may or may not marry, but at this stage they're venerable anyway and the story is about their kids.

 

The main characters are the girl-child who was adopted and older legitimate-born sister. There's several issues between the two, from jealousy over looks to the fights over dowry for the adopted girl (as there's less money for the elder). The girls are in competition over everything, but eventually it boils down to a fight to get better husbands. Once married, the rivalries continue as each one tries to outdo the other in making their men more powerful. Ultimately, they both unwittingly (or not so unwittingly) set powerful men against one another to cause political havoc.

 

Thanks for your time!

-E

Edited December 3, 2007 by ParaVox3

[Nephele]

Welcome to UNRV, Rugged Indoorsman and ParaVox3. You may be interested to know that member Maty who answered your question is the author of Ancient Rome on Five Denarii a Day, reviewed by UNRV member Ursus (an Amazon link to the book is included at the bottom of Ursus' review).

 

RI and PV3, in what time period of ancient Rome are you setting your story? The Republic, Principate, Dominate? I'm not certain if the example of Claudius (later to become Emperor) and his wife Plautia Urgulanilla might have been typical of their times and rank, but when Claudius discovered that his wife had become pregnant by another man (the freedman of Claudius, actually), he divorced Urgulanilla and initially retained possession of the child after its birth -- to maintain appearances that the child was actually his and he hadn't been cuckolded. Then, later on, he apparently changed his mind and "exposed" the child -- actually, leaving the child on Urgulanilla's doorstep so that she could conveniently take back her own child.

 

Even if you don't plot your story along this line, if your characters are living during or after the time of Claudius, it may be interesting if you make a reference to Claudius' example in your book.

 

-- Nephele

[Melvadius]

I have several problems in answering this post not least the fact that it flies in the face of my understanding about several major Roman Laws. I have a couple of reference books that touch on the issue of legal positions, unfortunately I don't at present have the time to go through them all or go into a university library to research the appropriate legal codes, including the Codex Theodosianus , to get fuller details.

 

Although not specifically on children I have been able to compile something from Grubbs, J.E. (2002) Women and the Law in the Roman Empire, which I would recommend as a readable reference for any research touching on female status in the Roman Empire.

 

As has already been indicated the legal situation of any child born of such a union was liable to be somewhat constrained especially in the Republican period when a family court would have decided how to deal with a female member of the family (or IIRC wife if married in potestas who effectively passed from her fathers control coming into her husbands) committing adultery and any child of such an act. I believe that exposure of illegitimate children was a favourite method of disposal at one point in Rome's history so it really depends what period you wish to know about.

 

However at the heart of the matter is a series of laws enacted under Augustus, intended to promote marriages and child bearing amongst Roman citizens, while suppressing adultery and extra-marital sex. These lasted to a great extent unchanged for something like 550 years so it is probably best to give this background as it indicates the answer to some of your questions.

 

18BCE - Lex Julia de Maritandis ordinibus - Julian law regulating marriages and of the social orders.

 

18BCE - Lex Julia adulteries - Julian law of adultery

 

9CE - Lex Papia-Poppateae - Papian-Poppaean Law

 

These are generally known as the Lex Julia et Papia-Poppaea

 

The laws set out three basic principals:

 

1) All male citizens between 25 and 60 as well as female citizens between 20 and 50 were to be married, widows were to remarry with 2 (or possibly 3) years and divorcees to remarry within 18 months. If they failed to do so they faced financial penalties. There were also a series of restrictions placed on inheritance especially for childless couples while those married with children were rewarded with certain privileges.

 

2) Marriages between members of the senatorial order and former slaves were prohibited - any union which did occur were not considered legal marriages. Marriages between all freeborn people and prostitutes, pimps, condemned adulteresses or those caught in the act of adultery were also prohibited.

 

3) Adultery was any sexual relations between a married man and a woman other than her husband became a criminal offence to be tried by a standing court. Conviction led to relegation to an island and confiscation of half her dowry and a third of her property and in the case of the man half of his property. Stupum was illicit non-marital sex with an unmarried woman of 'respectable' status and fell under the same laws for adultery. Husbands were required to divorce adulterous wives or be prosecuted as a lenocinium (pimp).

 

Inheritance penalties for unmarried women were not repelled until 320 A.D. and most of the prohibitions on marriages between different ranks were only repelled by Justinian in the mid-sixth century. Although Cassius Dio, Roman History 54.16.1-2 did report that the laws were relaxed allowing all but senators to marry freedwomen.

 

As you can see from the above the penalties for any citizen member of Rome would have been horendous if they had been found guilty in a court of adultery - even for the Patrician class.

 

As I indicated haven't had a chance so far to try unpicking the scattered comments on inheritance and children but one thing to be aware of is that much of Roman Law revolved around the rights of inheritance for 'legal' heirs, which may not necessarily be children. As such any illegitemate child, given they were not exposed by the Pater Familias, would have been in a very poor position to claim any inheritance. That said there is apparently a whole series of recorded legislation indicating that members of the Patrician class did make various attempts to work their way around the law to give some form of inheritance to illegitemate children they had had with a variety of unsuitable people although from my reading this was more about banned relationships rather than resulting from adultery.

 

Various emperors enacted a series of legislation on the inheritance rights of illegitimate children born from the unions prohibited by Constantine in 336. A law of Valentian I allowed illegitimate children or their mother to inherit up to one-fourth of the father's estate if there were no legitimate heirs, or one twelth if there were [Cod. Theod. 4.6.4.371]. This was apparently a substantial improvement on Constantine's Law, which had prohibited him leaving anything under the threat of severe penalties.

 

Specifically, as Grubbs notes, regarding children Roman law was straightforward. Children born in legitimate marriage came under their father's power, and if the marriage broke up, they remained under his control. A woman who divorced her husband ran the risk of never seeing her children again although it was recognized that some children were better off living with her rather their father IF he was a disreputable character. There was also a series of legislation about divorce including the possibility of declaring children illegitimate after a divorce.

 

If I get a chance I will do some more reseach in the references I have but unfortunately I don't think they will change the picture much or really give you the answer you wished.

[Melvadius]

Addenda to previous response:

 

Going through my library I have found a couple more books that provide further evidence of the difficulties of the proposed scenarios:

 

Rawson, B (1991) Marriage, Divorce, and Children in Ancient Rome

 

Rawson has stated the view that

[ParaVox3]

Thank you everyone for your responses. This has given us a lot of insight and modified our story significantly. For note, this is supposed to occur in the Republic period, around 110AD.

 

It's our general thought that not everyone obeys the law, so the importance to our story is that we're aware of how society would react and ensure that legalties are properly depicted.

 

With this in mind, we've decided that the husband of the "adoptee"'s mother demands she expose the child, but does not wish to expose himself as a cuckold (and thus no proceedings against the mother as an adultress). The 'adoption' may occur through the child's real father taking the girl in and simply claiming she's his and his wife's child through some mechanism (we've explored the possibility of the first wife being pregnant and forced to claim she had twins).

 

It may not be entirely pretty, but it would at least conceal the problems from the general public and still give the 'outsider' daughter legitimate status.

Edited December 4, 2007 by ParaVox3

[Kosmo]

Roman marriage was less formal then ours. That means concubinage was a way of creating a marriage. So, if they are not married by living togheter they can became married, especially if they are lower class.

Married or not the woman it's under paternal or husband authority and so it's her child. So, the solution it's simple, it happens what the person that has authority over the woman desires to.

[Melvadius]

Roman marriage was less formal then ours. That means concubinage was a way of creating a marriage. So, if they are not married by living togheter they can became married, especially if they are lower class.

Married or not the woman it's under paternal or husband authority and so it's her child. So, the solution it's simple, it happens what the person that has authority over the woman desires to.

 

Actually the Roman's had three kinds of legal marriage with increasing degrees of rigour and differences in the rights of both partners but especailly the women and who she belonged to - for Patricians there was even one type which did not allow divorce. The concubinage style of relationship you are probably thinking of was that practiced by legionarries and auxiliaries, who did not have the right of contracting a legal marriage until the early third century, so could only contract informal arrangements.

 

BTW re the date that this story is intended to be set, the Republican period ended when Augustus became emperor in 23 BC and if anything was probably even more restrictive on the rights of women and either their father's or husbands control of any children than in the Principate. Personally I wouldn't advise setting any such story then.

 

I would strongly suggest looking in detail at some of the books and laws mentioned in my previous postings as they will give you a lot more detail as well as indicating precisely when the laws changed.

[Kosmo]

The concubinage style of relationship you are probably thinking of was that practiced by legionarries and auxiliaries, who did not have the right of contracting a legal marriage until the early third century, so could only contract informal arrangements.

 

No, I'm thinking at "usus" that was not uncommon during the Republic and that is very old.

[Rugged Indoorsman]

Hi all,

 

I just wanted to add my thanks for all of the assistance and suggestions so far as well.

 

Also, I think ParaVox3 may have meant 110BC, rather than AD.

 

Thanks!

-RI.

[Melvadius]

Hi all,

 

I just wanted to add my thanks for all of the assistance and suggestions so far as well.

 

Also, I think ParaVox3 may have meant 110BC, rather than AD.

 

Thanks!

-RI.

 

Ouch that means you need to know how the law stood under the Twelve Tables, which I have a lot less information on, rather than the Augustan Laws talked about previously. The following is something I prepared on the basis that it was the later Principate period.

 

I agree that usus, of the three forms of marriage used in the period up to the early Principate, did not have the same restrictions on the wife as confarreatio (patrician level and extremely hard to get a divorce from) or coemptio. The last two of these forms of marriage, passed the wife into the manus of her husband so liable to summary justice for adultery. However from what I have read usus had fallen out of favour by the end of the Republic so is highly unlikely to have been in use by 110AD, if that is the date the story is set in.

 

If it was the case that she was in a usus marriage during the Republican period then it would have been down to her father to carry out any family punishment for being an adulteress, that would ahve been done under the guidance of the family concillium (council), rather than her husband.

 

In either case a quiet divorce for cause (not declared as adultery) may have allowed her and any putative child to live BUT in either case her lover would have been less likely to formally adopt a girl child. About the only way that he may have been willing to is if in the Principate period he did not have any child or less than the three children which may have granted him a small political advantage. There would however have been strong familial and political/ social pressure on him to adopt a male heir rather than (another) female.

 

Only if all the problems already identified about the social stigma of adulterous relationships had been avoided is it possible that a child may have been adopted. For a patrician in particular to adopt there must have been no suspicion of illegitimacy. Following a legal adoption the child would then have been in a position to claim part of any inheritance from their adopted parent under the normal laws of inheritance - c/f the books previously mentioned.

 

However, if I understand things correctly, in most periods under Roman law the legitimate children of his original marriage would have been entitled to a major portion of any estate. Consequently they would also be entitled to claim a larger portion of their patrimony if they appeared to have been short changed. When it came to inheritances, like now, the Romans could spend a lot of time litigating for their inheritance rights - often the strongest claims being made by family members our modern society would consider not entitled to anything.

 

BTW there are several places on the web you can look up the various rights and benefits attached to each form of marriage including the Lacus Curtis site which has a copy of some out of copyright articles relating to the three forms of marriage:

 

http://penelope.uchicago.edu/Thayer/E/Roma...atrimonium.html

 

IIRC Lacus Curtis also has some information on the Twelve Tables and other Republican period laws.

Edited December 4, 2007 by Melvadius

[Gaius Octavius]

I am not sure of how this helps the thread, but as usual here goes. In Neapolitan families, (at least), of a century ago, an adopted child shared in the same familial rights as a biological child. One of my betters might be able to stretch this back to the Roman period.

[ParaVox3]

Once again, thank you everyone. This has been one of the most informative and delightful forums I've ever had the pleasure to make an inquiry on. As my husband just said to me from his computer across the way - we're both very impressed at the time and consideration put into the answers here. Thank you.

 

Warm regards,

-E

[Kosmo]

The roman legal system was not interested in res private. The solution to the problems lies not in laws, like today, but in the desires of the interested parties. Roman law was practical rather then idealistic. I think that even the concept of illegitimate child would surprise them.

The husband was legally presumed to be the father of the child (like today) and, unlike today, he could not really contest that in court. But he can have the child killed and the wife banished or killed. Why go to court when there are a 1000 more honorable solutions?

Adoptions were common and the adopted child enjoyed the legal rights of the biological ones.

If a father recognised a child it was his, regardless if he was married with someone else or not married at all. This inflenced only the authorityof the father over the child.

Also the exact legal status of those involved it's highly relevant. The marriage of the adulteress can be "cum manum" that will give extensive rights to the husband or "sine manum" that will keep rights over her to her father. She could even be emancipated before marriage so a divorce wil make her very independent.

The money aspect it's also important. The husband can be indiferrent to her infidelity if hecan keep control of her dowry.

The situations are endless and romans knew that too well to create specific rules for everything.

Edited December 5, 2007 by Kosmo