CASE 7: Less Than Minimum Age
D. 48.5.14.8 (Ulpianus libro secundo de Adulteriis)
Si minor duodecim annis in domum deducta adulterium commiserit, mox apud eum aetatem excesserit coeperitque esse uxor, non poterit iure viri accusari ex eo adulterio, quod ante aetatem nupta commisit, sed [vel] quasi sponsa poterit accusari ex rescripto divi Severi, quod supra relatum est.
(Ulpian in the second book On Adulteries)
A girl less than twelve years old was led into the home (of her prospective husband) and (then) committed adultery; soon thereafter she passed the age (of marriage) in his house and began to be his wife. He cannot use a husband’s right to accuse her of an adultery which she committed when married before the (legal) age; but she can be accused as a betrothed woman (sponsa), in accord with the rescript of the deified Emperor Severus that was set out above.
Hypothetical Situation
Sempronia, aged ten, is “married” to her fiance Titius; in a wedding ceremony, she leaves her own home and moves into his. Before she reaches the age of twelve, she has sexual relations with a man other than Titius. After she reaches twelve and becomes legally married to Titius, can he accuse her of adultery?
1. The Minimum Age. This rather sensational Case proceeds from the Roman definition of minimum age at marriage. Although the jurists frequently define the minimum female age in terms of physical maturity (she must be “capable of sexual relations,” viripotens; see Case 13 and also, e.g., Labeo, D.
24.1.65, 36.2.30), many sources, like this one, point clearly to age twelve as the conventionally set minimum. For the minimum male age at marriage, see Case 6 (usually age fourteen or so). These ages are bound to seem young in a modern setting. What are the likely social implications?2. Prepubescent “Marriage.” A surprisingly large number of Roman legal sources suggest that in the case of women the minimum age was not always observed; see also, for instance, Case 26 below. In the present Case, a girl younger than twelve has been “led” (deducta) in a wedding procession to the home of a man; such a “leading” from the home of the girl's father into her husbands is one common form of marriage ceremony (see Case 20). It is not impossible that in this Case, as in Case 26, the man thought of himself as an actual husband; but such a view is firmly resisted by the jurists (e.g., Pomponius, D. 23.2.4: “A woman married when less than twelve years old will be a legitimate wife when she has reached age twelve in her husbands house”). So how is her status in the meantime to be legally described? The Case hinges on the answer to this question.
3. Adultery. Under the lex lulia de adulteriis of 18 or 17 b.c. (a law promulgated by the Emperor Augustus; see Cases 50-55 and 95-96), a husband who discovered that his wife had committed adultery was strongly encouraged to divorce her and then to bring criminal charges against her for adultery; this is the “husband's right” to which Ulpian refers. In Case 7, however, the “wife” has committed adultery before reaching the age of twelve (!); hence, by the ordinary rules of Roman law, she was not yet a legitimate wife and could not be accused under the lex lulia. Ulpian solves this problem by using a rescript of Emperors Septimius Severus and Caracalla (see D.
48.5.14.3), who ruled that the law of adultery should apply not just to wives but also to betrothed women (sponsae), “because it is impermissible to violate, not just every kind of marriage, but also the hope of marriage (spem matrimonii).” On betrothal, a formal engagement prior to marriage, see Section 2 below. Does this sort of extension seem sensible to you? But in this Case Ulpian's solution requires a legal construction that the man's “wife” was actually his betrothed prior to her reaching the required age for marriage. Ulpian accepts this construction here and also, for example, at D. 42.5.17.1 (where much less controversial issues are involved than here) but emphatically rejects it in Case 26. Given what you already know about Roman social conventions, does the outcome in Case 7 seem unfair? If so, to whom? On the assimilation of betrothal and marriage, see also Case 27.4.size=1 face="Times New Roman"> Actual Age at Marriage. The sources on age at marriage among ordinary Romans, although poor in quality, suggest that women ordinarily entered their first marriage in their middle to late teens, but men only in their mid- to late twenties; and Augustus's marriage legislation favored individuals who had children by about these ages (Case 12: age twenty for women, twenty-five for men, reporting late classical law). However, in the upper classes young girls were often used as dynastic pawns between powerful families, and for this and other reasons, they were often given in marriage at an extremely tender age. Do the jurists seem to have utilized law as a means to resist pressures for early marriage? Ulpian (D. 27.6.11.3-4, citing Julian) discusses the possible reasons a father might have for arranging an early marriage: among others, an affectionate desire “to introduce his daughter more swiftly into her betrothed's household.” Is this line of thinking fanciful?
5. Why Set an Age? What general legal purposes are served by setting a minimum age for marriage? A modern lawmaker might aim to set an age that will prevent unwise marriages of immature persons, as part of an effort to reduce the divorce rate and promote marital stability; or that will encourage young people (and especially young women) to complete their educations and become economically independent, perhaps as part of a larger effort to restrain population growth. What policy aims might the Romans have had in setting the age where they did?