CASE 14: A Freedwoman's Agreement
D. 23.2.28 (Marcianus libro decimo Institutionum)
Invitam libertam uxorem ducere patronus non potest:
D.
23.2.29 (Ulpianus libro tertio ad legem luliam et Papiam) quod et Ateius Capito consulatu suo fertur decrevisse. hoc tamen ita observandum est, nisi patronus ideo eam manumisit, ut uxorem eam ducat.(Marcian in the tenth book of his Institutes)
A patron cannot take his freedwoman as his wife if she is unwilling,
(Ulpian in his third book on the lex lulia et Papia)
which (the jurist) Ateius Capito is also said to have decided during his consulate (a.D. 5). But this rule should be observed unless the patron manumitted her precisely to take her as a wife.
1. Marrying One’s Freedwoman. This seems not to have been unusual; for instance, Gaius (Inst. 1.19) states that freeing a slave woman in order to marry her is “a legitimate reason for manumission” (iusta causa manumissionis). As this Case indicates, if the slave woman was manumitted without the master indicating his intent to marry her, she could not then be forced against her will to marry him. Is this a straightforward application of the usual rule requiring agreement (Case 13)? By contrast, when during manumission the masters intent to marry was unambiguous, the freedwoman could not marry anyone else even if her patron then changed his mind about the marriage, unless he actually renounced his right to marry (Licinius Rufinus, D. 23.2.51 pr.).
Still, in practice these rules were liberally interpreted to favor the slave woman; for details, see Ulpian, D. 24.2.11.2. Can She Divorce Him? A provision of the Augustan marriage legislation held that “a freedwoman who married her patron cannot then marry someone else if he is unwilling” (Ulpian, D. 23.2.45 pr.). “If he is unwilling” was interpreted to mean that he would not agree to a divorce; that is to say, she could not unilaterally escape from her marriage to her patron. (She could, however, separate permanently; see Case 75.) If her patron-husband went mad and so became mentally incapable of agreeing to divorce, she was stuck with him (ibid. 5).
3. Social Decency. It is hard to recapture the intricate Roman sense of social propriety. As Modestinus remarks in passing (D. 23.2.42 pr.): “In marriages we should consider not just what is permitted but also what is decent (honestum).” Thus, a free woman is not legally barred from manumitting a male slave in order to marry him; however, Ulpian (D. 23.2.13) flatly describes such a woman as “degraded” (ignobilis). A social judgment, amounting to a double standard, is thus not “reflected” in the law. Why?
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