CASE 73: Captured
D. 24.2.6 (lulianus libro sexagesimo secundo Digestorum)
Uxores eorum, qui in hostium potestate pervenerunt, possunt videri nuptarum locum retinere eo solo, quod alii temere nubere non possunt.
et generaliter definiendum est, donec certum est maritum vivere in captivitate constitutum, nullam habere licentiam uxores eorum migrare ad aliud matrimonium, nisi mallent ipsae mulieres causam repudii praestare. sin autem in incerto est, an vivus apud hostes teneatur vel morte praeventus, tunc, si quinquennium a tempore captivitatis excesserit, licentiam habet mulier ad alias migrare nuptias, ita tamen, ut bona gratia dissolutum videatur pristinum matrimonium et unusquisque suum ius habeat imminutum: eodem iure et in marito in civitate degente et uxore captiva observando.(Julian in the sixty-second book of his Digests)
Wives of men who fall into enemy hands can be deemed to remain married simply because they cannot rashly marry another man. And in general, so long as it is known that the husband survives in captivity, it should be ruled that their wives have no freedom to move to another marriage, unless the women themselves prefer to be responsible for the divorce.
But if it is uncertain whether he is held alive with enemies or has died, then if five years have elapsed from the start of captivity, the wife is free to move to another marriage, but in such a way that the first marriage is held to have been dissolved with goodwill on either side (bona gratia) and each party retains their rights unimpaired.
The same rule should be observed when the husband remains within our sovereignty and his wife is captive.
1. The Classical Rule? Paul (D.
24.2.1) states flatly that a marriage ends when a husband or wife is captured. Elsewhere, Paul holds that if a promise is made conditional on the promisee’s wife “for some reason” no longer being married to him, this condition is met if she is captured by enemies (D. 24.3.56); and vice versa, “the wife of a captive, even if she devoutly wishes otherwise and lives in his house, is still not married” (Tryphoninus, D. 49.15.12.4). Therefore, if the captive returns, the marriage must be renewed by mutual consent (Pomponius, D. 49.15.14.1). This Case, however, imposes a five-year period during which, so long as it is uncertain that a captured spouse is still alive, the other spouse cannot remarry without being responsible for the end of the marriage (see Case 83). Very probably, however, Julians original text has been rewritten by the compilers of Justinian’s Digest, since we happen to know that Justinian enacted this rule himself (Novellae 22.7; A.D. 535-536). In all likelihood, the classical jurists held that the other spouse could remarry more or less immediately after a capture. Did Justinian improve on the classical rule?2. A Freedwoman’s Plight. When, as here, we have strong reason to believe that the text of a classical jurist has been altered by later editors, naturally it is impossible to say exactly what the original rule might have been. Still, sometimes we have a clue in other texts. For example, Ulpian (D. 23.2.45.6) reports on the situation where a freedwoman marries her patron, who is then captured. Can she remarry? As you will recall (Case 14), Roman law placed sharp limits on the ability of a freedwoman, once married to her patron, to remarry without the patrons consent. In the case of a captured patron, Ulpian takes the probable classical view that she can remarry, just as she could if her patron had died. But he also reports Julians dissenting view that “a freedwoman's marriage continues even in (his) captivity because of the respect she owes a patron.” Perhaps a text of this sort formed the basis for the rewriting that the compilers of the Digest undertook in this Case.
3. When Both Spouses Are Captured.
The Roman Empire was surrounded by other peoples with whom the Romans interacted, often peacefully through trade but sometimes violently; and capture of free Romans was common enough that a substantial body of law developed around the problems of return from captivity (postliminium). Would former legal rights revive with the restoration of the captive to freedom? What about what had happened in the meantime? One particular problem arose from a situation in which both husband and wife were captured, and the wife then bore her husband a child; if the child later returned to the Empire (with or without the parents), was the child legitimate? Septimius Severus and Caracalla ruled in favor of the child's legitimacy, provided that he or she returned with at least the father (C. 8.50.1; A.D. 197-211; with Marcian, D. 49.15.25).
More on the topic CASE 73: Captured:
- Exemplar-Driven Realism
- Legal Analysis in Relation to State and Society: Theoretical Departure from Liberal Legal Analysis
- Study of Selected Rituals of the Kuki Traditional Religion
- The Scythians
- Conclusion and Recommendations