CASE 9: Conubium
Tituli ex Corpore Ulpiani 5.3-5, 8-10
(3) Conubium est uxoris iure ducendae facultas. (4) Conubium habent cives Romani cum civibus Romanis: cum Latinis autem et peregrinis ita, si concessum sit.
(5) Cum servis nullum est conubium.... (8) Conubio interveniente liberi semper patrem sequuntur: non interveniente conubio matris condicioni accedunt, excepto eo qui ex peregrino et cive Romana peregrinus nascitur, quoniam lex Minicia ex alterutro peregrino natum deterioris parentis condicionem sequi iubet. (9) Ex cive Romano et Latina Latinus nascitur et ex libero et ancilla servus, quoniam, cum his casibus conubia non sint, partus sequitur matrem. (10) In his, qui iure contracto matrimonio nascuntur, conceptionis tempus spectatur: in his autem, qui non legitime concipiuntur, editionis. veluti si ancilla conceperit, deinde manumissa pariat, liberum parit: nam quoniam non legitime concepit, cum editionis tempore libera sit, partus quoque liber est.(Excerpts from Ulpian’s Writings)
(3) Conubium is the capacity to take a wife legitimately. (4) Roman citizens have conubium with Roman citizens and (also) with persons of Latin status and peregrines (peregrini) if this (right) has been granted. (5) With slaves there is no conubium
(8) When conubium is present, children always follow (the status of) their father. When conubium is not present, they accede to their mother’s (legal) status, except for a person born from a male peregrine and a female Roman citizen; for the lex Minicia orders that the child of a foreign mother or father follows the condition of the parent of lower status. (9) From a male Roman citizen and a female Latin, a Latin is born; and from a free male and a slave woman, a slave. The reason is that there is no conubium in these cases, so the offspring follows the mother.
(10) In the case of children born in a legally contracted marriage, the time of conception is observed (in determining the children’s status); in the case of children not legitimately conceived, that of birth. For instance, if a slave woman conceives and then gives birth after being manumitted, she bears a free child; for since she conceived illegitimately but was free at the time of birth, her offspring is also free.
1. Status in the Roman World. This Case gives a hasty introduction to the complex issue of legal status. At the beginning of the Roman Empire, its free subjects included a relatively small proportion of Roman citizens, those to whom Roman private law was directly applicable. Other free persons included the “Latins” (Latini), who were accorded a sort of half-citizenship; and “peregrines” (peregrini, “foreigners”), permanent resident aliens who were usually the descendants of conquered peoples. All three groups (Roman citizens, Latins, and peregrines) were further subdivided. As time passed, more and more of those in the nonprivileged groups were accorded Roman citizenship, until in A.D. 212 Emperor Caracalla extended Roman citizenship to virtually all free subjects of Rome.
2. Interstatus Marriage. As this Case indicates, conubium is a legal concept describing the capacity of a man or woman to conclude a valid marriage with a given individual. It is also used, for instance, to proscribe incestuous marriage (Case 11). The Roman rules on conubium are, however, complicated by the intricacies of legal status in the Roman world.
In principle, there is always conubium between two Roman citizens, although their marriage may sometimes be barred by other legal impediments (Case 10). When a Roman wished to marry a Latin or a peregrine, however, conubium was present only when this right had been granted as a favor by the Roman state; the grant might be either to individuals or to cities or peoples. For example, Gaius (Inst. 1.57) notes that Roman emperors granted some veteran soldiers conubium to marry Latin or peregrine women after their term of military service; this meant that the children of such marriages were Roman citizens in the power of their fathers. Marriage to a person with whom one does not have conubium effectively invalidates the marriage from the perspective of Roman law, although the marriage may be recognized by non-Roman legal systems within the Empire. Why might the Romans have been so grudging about marital rights? Do you see a relationship to the Roman principle of “divide and conquer”?3. Following the Status of the Mother. Where a couple did not have conubium, the general result in Roman law (with some exceptions, one of which is noted in this Case) was that children acquired their mothers status and that their father did not have patria potestas over them; that is, the children were treated, to some extent, like bastards for purposes of Roman law (although the word “bastard” carries moral baggage that is not always appropriate in a Roman context). In the case of two free persons, the result in Roman law was often harsh. What explains the exception introduced by the lex Minicia? Consider the following paradox: under the previously prevailing rule, if a Roman citizen woman married a peregrine with conubium, her children would be peregrines as well; but if she married a peregrine without conubium, then her children would be Roman citizens! Where the mother is a slave, the rule given in this Case allows an exception, perhaps as a result of imperial intervention: a child is freeborn if its mother was free at any point in time from the conception of the child to its birth (Paul, Sent.
2.24.1-3, who justifies this change on the basis of favor libertatis). What policy reasons might have motivated this exception?4. Marriages with Slaves. Slaves have no conubium and so are unable to marry free persons, although they can enter a sort of informal (and legally inconsequential) union called contubernium (Paul, Sent. 2.19.6). Paul (D. 16.3.27) reports an interesting case in which a free Roman gave his daughter-in-power as wife to another mans slave, even supplying a “dowry.” Paul rules that since there is no valid marriage, there is also no true dowry (see Case 29), but the money can be reclaimed as a “deposit.” Marriages between slaves are also invalid at law, but they are sometimes recognized in fact. A poignant example is mentioned by Ulpian (D. 23.3.39 pr.): A female slave, upon entering a longterm relationship with a fellow slave, provided him a dowry that passed from her peculium (a fund that her master allows her to administer) into his; later the couple were both freed and their relationship continued as marriage. If the dowry property still survives, Ulpian holds that it has been converted tacitly into a real dowry. The original “dowry” had, of course, no legal validity.