CASE 102: Impaired Consent: Captivity
D. 23.2.9.1 (Ulpianus libro vicesimo sexto ad Sabinum)
Is cuius pater ab hostibus captus est, si non intra triennium revertatur, uxorem ducere potest.
D.
23.2.10 (Paulus libro trigesimo quinto ad edictum)Si ita pater absit, ut ignoretur ubi sit et an sit, quid faciendum est, merito dubitatur. et si triennium effluxerit, postquam apertissime fuerit pater ignotus, ubi degit et an superstes sit, non prohibentur liberi eius utriusque sexus matrimonium vel nuptias legitimas contrahere.
D. 23.2.11 (Iulianus libro sexagesimo secundo Digestorum)
Si filius eius qui apud hostes est vel absit ante triennium captivitatis vel absentiae patris uxorem duxit vel si filia nupserit, puto recte matrimonium vel nuptias contrahi, dummodo eam filius ducat uxorem vel filia tali nubat, cuius condicionem certum sit patrem non repudiaturum.
(Ulpian in the twenty-sixth book on Sabinus)
If a man’s father has been captured by the enemy and should not return home within three years, he can marry.
(Paul in the thirty-fifth book on the Edict)
If a father should be absent and it is unknown where he is or whether he is still alive, it is rightly doubted what should be done. If three years have passed from the time when it became very clear that the father’s whereabouts or survival was unknown, his children of either sex are not prevented from contracting a lawful marriage.
(Julian in the sixty-second book of his Digests)
If the son or daughter of a man who is in enemy hands or (otherwise) absent marries before the end of a three-year period of the father’s captivity or absence, I think that the marriage in either case is validly contracted, provided the son or daughter marry someone whose status the father is certain not to repudiate.
1. Postliminium.
The Romans developed a body of rules, known collectively as postliminium, that dealt with the problem of citizens who had been captured by the enemy and actually or at least putatively enslaved. The legal relationships of such persons were a prime concern. The rule for those in the potestas of a captive was that, if he died in enemy hands, they were deemed to have been freed from his power retroactively to the date of his capture, whereas, if he returned, they were considered never to have left his power. If certain conditions were met, they could marry while their paterfamilias was in captivity, which meant that not only they but, if they were sons, their children came under his potestas immediately upon his return. The jurist Tryphoninus justifies this somewhat odd result with the assertion that “it's not strange, since the situation and requirements of the occasion, plus the public good of marriage, call for this” (D. 49.15.12.3). What does he mean? How does “the public good of marriage” (publica nuptiarum utilitas) figure into his analysis?2. The Three-Year Rule. Ulpian and Paul do not permit marriage until three years have passed since the fathers disappearance or capture; but Julian apparently allows it at once, provided the spouse is suitable. Although these rules are formally compatible, do they seem to imply a different policy with regard to marriage? Do you think that the three-year rule cited by the jurists in these texts arose first in the context of postliminium or rather in that of simple absence? To which is it better suited?
3. A Suitable Spouse. What does Julian mean by “provided the son or daughter marry someone whose status the father is certain not to repudiate”? If it turns out that, contrary to reasonable expectation, the returning father does in fact disapprove of the spouse, will his disapproval be enough to end the marriage from that time forward, if not retroactively? (Remember that children may have been born in the interim.) In Julians view, would it make any difference whether the three years had elapsed before the fathers return? It should perhaps be noted that Julian uses “repudiate” (repudiare), the usual word for notification of divorce; can it be assumed that he regards the marriage as valid until the father ends it?
4. Dowry.
One problem is that Roman marriage often involved a dowry, which was awkward to conclude while the status of a father was uncertain. Paul (D. 23.4.8) solves the problem this way: “Whenever a child-in-power marries while his or her father is insane or has been captured by enemies, a pact will also necessarily be made with them just for the dowry.” Is this text entirely consistent with the present Case? See also Paul, Frag. Vat. 102.D. 23.2.19 (Marcianus libro sexto decimo Institutionum)
Capite trigesimo quinto legis luliae qui liberos quos habent in potestate iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt ex constitutione divorum Severi et Antonini, per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare. prohibere autem videtur et qui condicionem non quaerit.
(Marcian in the sixteenth book of his Institutes)
In Chapter 35 of the lex lulia, those who wrongfully prevent children in their power from marrying or, in accordance with the decree of the deified Emperors Severus and Caracalla, those who refuse to provide a dowry for them, are compelled by provincial governors to arrange marriages and provide dowries for them. Further, a person who does not (actively) seek to arrange this is deemed to prevent it.
1. Augustan Marriage Law. The lex lulia (et Papia) in this text is the Augustan marriage legislation (see Case 12), the goal of which was to foster marriage and the rearing of children. What was the law on consent before Augustus? His law, at least as it is reported in this text, effectively required a father to arrange a marriage for his children; did it also require him to consent to a particular marriage of which he disapproved? And does the statute still allow him to force a marriage on his children?
2. New Rules.
What is the contribution of Severus and Caracalla (joint reign: A.D. 197-211) to these rules? The Latin text is almost as convoluted as the translation given here, and many scholars have supposed that the preserved version is actually Justinian's generalization and consolidation of more gradual developments in classical law. See also the Discussion on Case 32.3. Social Role. What does the last sentence suggest about the social role of the paterfamilias in the formation of his childrens marriages?
4. Dowry. The Augustan law also provided that a sui iuris woman could apply to the urban praetor for the assignment of a tutor to constitute her dowry if her own tutor were under age and so unable to do this (Tit. Ulp. 11.20). What is the significance of the dowry here? Does this anticipate the rule enacted by Severus and Caracalla in any way?