CASE 16: What the Neighbors Know
C. 5.4.9 (Imp. Probus A. Fortunato)
Si vicinis vel aliis scientibus uxorem liberorum procreandorum causa domi habuisti et ex eo matrimonio filia suscepta est, quamvis neque nuptiales tabulae neque ad natam filiam pertinentes factae sunt, non ideo minus veritas matrimonii aut susceptae filiae suam habet potestatem.
(The Emperor Probus to Fortunatus; A.D. 276-282)
If your neighbors or others knew that you had in your home a wife in order to sire children (liberorum procreandorum causa) and (also) that a daughter from this marriage was accepted (by you as your legitimate offspring), then although no documents were drawn up relating to the marriage or to the daughter’s birth, nonetheless the truth of the marriage and of the accepted daughter has force on its own.
1. Rescripts. In this Case, the Emperor Probus authoritatively answers a legal question from a petitioner named Fortunatus. Though most such rescripts are not legislative, rescripts were the most common means that emperors used to declare private law from about A.D. 120 on.
2. Proving Marriage. What was it that primarily concerned Fortunatus: the validity of his marriage or the legitimacy of his daughter? The emperor points to two conventional means of showing that a marriage existed: private “marriage documents” (usually relating to a dowry and confirmed during or soon after the marriage ceremony) and a public document registering a child as a legitimate offspring (see Case 147); but Fortunatus had evidently used neither. Was he taking a risk, and if so, how great a risk? In apparently holding the marriage valid, was the emperor moved mainly by the fact that Fortunatus had a wife “in order to sire children” (a common phrase in relation to legal marriage) and that the couple did then have a daughter? In any case, why should it make any difference what the neighbors claim to “know”? Is it because the couple seem to have held themselves out as married to third parties?
3. “Their Agreement and the Belief of Friends.” A century and a half later, the Emperors Theodosius and Valentinian consider a case in which there had been no marriage settlement and no marriage ceremony, but the couple are of equal social status (why is that relevant?), have conubium, and had produced children.
The marriage is held legitimate “because it is confirmed by their agreement (consensu) and the belief (fide) of their friends” (C. 5.4.22 = C.Th. 3.7.3; A.D. 428). Compare C. 5.17.8 pr. (A.D. 449): “We hold that lawful marriages can be contracted by agreement.” Is this rule identical to the one in the present Case? In general, consider the observation of Gaius (D. 20.1.4 = 22.4.4): “Writings are made so that what was transacted can more easily be proved; but even without them what was transacted is valid if there is proof. Thus, marriages are valid even though there is no written witness.” Is Gaius right about why people commonly document important transactions, or is this just a lawyer speaking?