CASE 12: Incentives to Marry and Reproduce
Tituli ex Corpore Ulpiani 16.1
Aliquando vir et uxor inter se solidum capere possunt: velut si uterque vel alteruter eorum nondum eius aetatis sint, a qua lex liberos exigit, id est si vir minor annorum XXV sit aut uxor annorum XX minor: item si utrique lege Papia finitos annos in matrimonio excesserint, id est vir LX annos, uxor L: item si cognati inter se coierint usque ad sextum gradum: aut si vir absit, et donec abest et intra annum, postquam abesse desierit.
libera inter eos testamenti factio est, si ius liberorum a principe impetraverint, aut si filium filiamve communem habeant, aut quattuordecim annorum filium vel filiam duodecim amiserint, vel si duos trimos vel tres post nominum diem amiserint, ut intra annum tamen et sex menses etiam unus cuiuscumque aetatis impubes amissus solidi capiendi ius praestet. item si post mortem viri intra decem menses uxor ex eo pepererit, solidum ex bonis eius capit.(Excerpts from Ulpian’s Writings)
Sometimes a husband and wife can each take in full under each other’s wills: for instance, if either or both of them have not yet reached the age when the law requires (them to have) children, that is, if the husband is less than twenty- five or the wife less than twenty; likewise if in their marriage both have reached the age set by the Papian law, that is, the husband is sixty and the wife fifty; likewise, if the pair are relatives within the sixth degree; or if the husband is away (from the couple’s home), both while he is away and for a year after he ceases to be away.
They have an unrestricted right of testation between themselves if they have the “right of children” (ius liberorum) received from the emperor or, if they have a common son or daughter, they have lost a son aged (at least) fourteen or a daughter aged (at least) twelve, or if they have lost two children aged (at least) three or three children after their name day. But when even one child is lost of whatever age prior to puberty, they have the right of taking the estate in full for the next eighteen months. Likewise, if after her husband’s death a wife bears his child within ten months, she takes the estate in full (if it is left to her).
1. Once More the Augustan Marriage Legislation. Besides legally restricting the freedom to marry socially as one wished (Case 10), the Emperor Augustus also introduced an elaborate system of civil penalties and benefits that were intended to induce marriage and childbearing. The lex lulia et Papia (actually two laws, from 18 B.C. and A.D. 9) imposed sanctions especially on persons who did not marry (as a rule, they could not inherit) or who married but had no children (they could take only half the benefits they inherited). This Case describes further testamentary penalties and benefits pertaining to the couple themselves; if the couple do not fall within the intricate exceptions, a spouse can inherit only a tenth of the others estate, plus further tenths for children from this and other marriages (Tit. Ulp. 15.1-2). How well do you think that laws such as these would work in achieving their desired purpose?
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