CASE 20: Leading a Bride into the Home
D. 23.2.5 (Pomponius libro quarto ad Sabinum)
Mulierem absenti per litteras eius vel per nuntium posse nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris vel nuntio suo duci a marito non posse: deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium matrimonii.
(Pomponius in the fourteenth book on Sabinus)
The prevailing view is that a woman can marry an absent man through a letter from him or by messenger if she is led into his house. But if she is absent, she cannot be married by a husband through a letter or by her messenger; for there must be a “leading” (deductio), not into the wife’s house, but into the husband’s, as into the marriage domicile.
1. Deductio and the Marriage Procession. Although early imperial Rome knew no prescribed ceremony for weddings, literary sources frequently describe an extremely colorful nighttime procession in which a rowdy band of revelers lead the bride from her home to that of the groom, where she enters to considerable clamor. Apart from welcoming the bride into his house, the groom plays little part in this procession; apparently no formal vows are exchanged, although dowry documents are often executed during or soon after this ceremony (see Case 21). In this Case Pomponius probably uses the word deductio (“leading” or “escorting”) to refer to the ceremonial procession or at least to ceremonies of this general sort.
2. The Marriage Domicile.
Does Pomponius simply assume that a married couple will always live in the husbands home? Would the couple be married if the groom were to move into the brides home in her absence? When the couple come from different cities, the jurists regularly hold that their legal domicile will be the husband's (e.g., Papirius Justus, D. 50.1.38.3, paraphrasing an imperial rescript). Can this be regarded as a hard and fast rule? Ulpian (D. 25.2.11 pr.) appears to describe a divorce occurring when a wife expels her husband from her home. Were they presumably married without a deductio?3. Was Deductio Required? In this Case, what does Pomponius require in order for a woman to marry a man in his absence? Clearly, there must be some objective sign of his agreement to the marriage (the letter or the messenger bearing his agreement). But must there also be an actual procession, a deductio? Suppose, for instance, that he sent her a letter proposing marriage and enclosing the key to his house. If she then used the key and began to live in his house with the professed intention of marrying him, would the couple be already married, or would something additional be required? If Pomponius does require an actual deductio, could this simply be because of the ambiguity caused by the grooms absence in this particular situation? In any event, a postclassical imperial rescript states explicitly that no procession (pompa) is required if other evidence for a valid marriage can be found: Theodosius and Valentinian, C. 5.4.22 (= C.Th. 3.7.3; A.D. 428). With this Case, compare also Paul, Sent. 2.19.8: “An absent man can take a wife, but an absent woman cannot marry”; Paul omits the requirement of a deductio.
4. Terminology. In Latin, the bride is said to “marry” the groom (nubere), and the word “marry” is reserved for women; by contrast, the groom “takes a wife” (ducere uxorem), where the verb ducere provides the root of deductio.
How likely do you think it is that the Roman rules on marriage were only a straightforward inference from this linguistic fact?5. The Husband’s Control. Does this Case at least support the view that “the only form required [for contracting a valid Roman marriage] was the placing of the wife in the husbands control” (W W Buckland)? Should we regard deductio (or its equivalent), not as a form at all, but rather simply as objective evidence of the parties' agreement? If the latter, is deductio best understood primarily as a means for publicizing the existence of marriage, a means that was legally encouraged, but not quite required, in order to protect the legitimacy of children?
6. Agreement Alone? P E. Corbett, one of the great experts on Roman marriage law, firmly rejected the view that form was of no significance in classical law. His argument ran as follows: “If the consent of the consorts—and of course of their patresfamilias if they were alieni iuris—was all that was necessary to make them man and wife, then the marriage must date from the last necessary consent, and there should have been no obstacle to celebration between absentes. It is precisely on these two points—date of completion and celebration inter absentes—that the view which rejects all form leads to serious difficulty.” What is this difficulty, and should it be regarded as insurmountable? Was it important to the Romans that they be able to determine with some precision the exact moment at which a marriage began? What actually depended on this determination?