CASE 41: Free Marriage: The Principle of Noninterference

C. 5.4.14 (Impp. Diocletianus et Maximianus AA. et CC. Titio)

Neque ab initio matrimonium contrahere neque dissociatum reconciliare quisquam cogi potest.

(Emperors Diocletian and Maximian to Titius; A.D. 284-305)

No one can initially be forced to contract a marriage nor to restore one that has broken apart. Therefore, you understand that the free power of contracting and breaking up a marriage must not be subjected to coercion.

1.      Noninterference. The emperors here state one of the bedrock principles of Roman marriage law. What sort of inquiry might have triggered this state­ment? For example, what might Titius have been seeking permission to do? Some sixty years earlier, the Emperor Alexander had applied the same princi­ple in order to invalidate a penalty agreement that would have prevented di­vorce (Case 75). To be sure, there is need to be cautious in interpreting the word “forced” in this Case, since sometimes the consent of the parties may ap­proach the illusory, as we have seen. But the general principle remains a pow­erful one: as a rule, the state will encourage couples to marry, but it will not force them either to marry or to remain married, nor will it permit the parties to use private arrangements for this purpose. A postclassical Greek commen­tary on Roman law notes: “For it is preposterous that marriage, which needs unending harmony, exist because of a penalty and not from the intent (of the parties)” (Scholia Sinaitica 6).

2.      Forcing Marriage? Titia married Gaius Seius. By prior marriages, she had a son and he had a daughter. After marrying, Titia and Gaius Seius agreed that the son would marry the daughter; and they arranged a penalty payable if ei­ther of them obstructed the marriage. Gaius Seius then died while still mar­ried to Titia, and his daughter refused to marry Titia's son. Can Titia claim the penalty from the heirs of Gaius Seius? The jurist Paul's response (D. 45.1.134 pr.) is that the stipulated penalty is “not in accord with sound morals (non se­cundum bonos mores)..., since it seems improper that a marriage, whether in the future or already contracted, be constrained by the bond of a penalty.” Probably the children were both minors when their parents arranged the marriage for them. Is it important to this decision that his daughter refused to go through with the ceremony only after Gaius Seius died? Do you think there is any likelihood that the penalty would have been valid if Gaius Seius were still alive? Do you think such an agreement should be enforceable?

D. 1.9.8 (Ulpianus libro sexto Fideicommissorum)

Feminae nuptae clarissimis personis clarissimarum personarum appellatione conti­nentur. clarissimarum feminarum nomine senatorum filiae, nisi quae viros clarissi­mos sortitae sunt, non habentur: feminis enim dignitatem clarissimam mariti tribu­unt, parentes vero, donec plebeii nuptiis fuerint copulatae: tamdiu igitur clarissima femina erit, quamdiu senatori nupta est vel clarissimo aut separata ab eo alii inferi­oris dignitatis non nupsit.

(Ulpian in the sixth book On Trusts)

Women married to clarissimi (most eminent persons) are included in the desig­nation clarissimi. But the daughters of senators are not included in the term clarissimi unless they have received clarissimi as their husbands, for husbands confer this status on their wives, but parents (confer status on their children) previous to the time when they are joined in marriage to a person of lower status.

1.      Eminence. The clarissimi, Roman senators and their immediate families, are the Empires elite. As time passed, formal distinctions of status became more and more important at Rome, above all because they brought privileged treat­ment in some areas of law. Struggles over status were almost inevitable. Here are some examples:

•       “Women previously married to a man of consular rank (i.e., an ex-consul or someone awarded this rank as an honor) commonly petition the em­peror, although seldom (with success?), that they retain consular rank when they remarry a man of lesser status” (Ulpian, D. 1.9.12 pr.).

•       “The wives of men of consular rank we call consular. The jurist Saturninus adds their mothers, an unprecedented notion that has not been accepted” (Ulpian, D. 1.9.1.1).

•       “When a senator's daughter pursues marriage with a freedman (in contra­vention of Roman law, see Case 10), her fathers fall (from senatorial rank) does not make her a wife, since the rank attained for children should not be removed because their father fell by being removed from the Senate” (Pap- inian, D. 1.9.9).

•       “You say you were not born from a senatorial father but attained the name of a clarissima by marrying a senator. Senatorial status (claritas), which was granted to you to benefit your husband, is forfeited if by marrying a man of lesser rank you have returned to the level of your former status” (Diocletian and Maximian, C. 5.4.10; A.D.

2.      No Name Change. Roman women did not usually change their surnames as a consequence of marriage. What might explain this?

size=1 color=black face="Book Antiqua">D. 24.3.14.1 (Ulpianus libro trigensimo sexto ad Sabinum)

Eleganter quaerit Pomponius libro quinto decimo ex Sabino, si paciscatur maritus, ne in id quod facere possit condemnetur, sed in solidum, an hoc pactum servan­dum sit? et negat servari oportere, quod quidem et mihi videtur verum: namque contra bonos mores id pactum esse melius est dicere, quippe cum contra receptam reverentiam, quae maritis exhibenda est, id esse apparet.

(Ulpian in the thirty-sixth book on Sabinus)

In the fifteenth book from Sabinus, Pomponius poses an ingenious question: should the agreement be upheld if a husband agrees (with his wife) that he be condemned (in an action for recovery of dowry) not for what he can provide but for the entire amount? And he denies it ought to be upheld, a view that seems correct to me as well; for the better holding is to say that this agreement is con­trary to sound morals (contra bonos mores), since it appears to be clearly at odds with the traditional reverence (reverentia) that must be shown to husbands.

1.      The Problem. If a wife sues her husband to recover her dowry (see Part D.2 below), a long-standing tradition limited the judgment to “what he can pro­vide,” that is, the extent of his resources; see the Discussion on Case 81. This rule obviously places limits on his liability if repayment of the dowry is finan­cially oppressive.

2.      Reverence. Reverentia is a sense of restraint or deference that one exhibits in the presence of one's superiors. This Case, if its last clause was actually writ­ten by Ulpian, suggests that the wife owes reverence to her husband. By con­trast, Paul (D. 25.2.3.2) uses the same word in explaining why a husband cannot bring an action of theft against his wife for a theft she committed against him before the couple were married: propter reverentiam personarum, “because of the reverence toward them.” Should “reverence” then be under­stood as a reciprocal obligation between spouses? Many literary sources sug­gest that this is correct, but jurists tend to avoid the word, perhaps because of its religious overtones. Is affectio maritalis (Case 17) a secular equivalent of reverentia? In a portion of a will quoted by the jurist Scaevola (D. 32.41 pr.), the testator speaks of “the love and familial respect” (affectio et pietas) that he owes to his wife.

Gaius, Institutiones 3.221

Pati autem iniuriam videmur non solum per nosmet ipsos, sed etiam per liberos nostros quos in potestate habemus; item per uxores nostras, quamvis in manu nos­tra sint. itaque si filiae meae quae Titio nupta est iniuriam feceris, non solum filiae nomine tecum agi iniuriarum potest, verum etiam meo quoque et Titii nomine.

D.

Quod si viro iniuria facta sit, uxor non agit, quia defendi uxores a viris, non viros ab uxoribus aequum est.

(Gaius in the third book of his Institutes')

But we seem to suffer an affront (iniuria) not only when it is inflicted on us but also through our children whom we have in our power and also through our wives even if they are not in our manus. And so, if you inflict an affront on my daughter who is married to Titius, you can be sued for affront not only in the daughter’s name but also in my name and that of Titius.

(Paul in the fifty-fifth book on the Edict)

But if an affront is given to a man, his wife does not sue (on it), since it is fair that wives be protected by husbands, not husbands by wives.

2.      Why the Double Standard? Paul argues that it is “fair” (aequum) for husbands to protect their wives, but not the reverse. What presumptions underlie his argument? Can you think of a better explanation for the Roman rule?