CASE 98: Who Consents
D. 23.2.2 (Paulus libro trigesimo quinto ad edictum)
Nuptiae consistere non possunt nisi consentiant omnes, id est qui coeunt quorumque in potestate sunt.
D.
23.2.3 (Paulus libro primo ad Sabinum)Antiqua">Si nepotem ex filio et neptem ex altero filio in potestate habeam, nuptias inter eos me solo auctore contrahi posse Pomponius scribit et verum est.
D. 23.2.16.1 (Paulus libro trigesimo quinto ad edictum)
Nepote uxorem ducente et filius consentire debet: neptis vero si nubat, voluntas et auctoritas avi sufficiet.
(Paul in the thirty-fifth book on the Edict)
A marriage is not valid unless everyone agrees, that is, (both) those who marry and those in whose power they are.
(Paul in the first book on Sabinus)
If I have a grandson by one son and a granddaughter by another, (and both these grandchildren are) in my power, Pomponius says that they can marry each other on my authority alone; and this view is correct.
(Paul in the thirty-fifth book on the Edict)
When a grandson marries, his father ought also to agree; but should a granddaughter marry, the consent and authority of the grandfather will be enough.
1. Controversy.
Compare Case 13 (Tit. Ulp. 5.2), which states the general rule in slightly less exact language. The general rule requires not only consent from both parties to the marriage but also consent from a paterfamilias if either one happens to be in his power. Paul's citation of Pomponius in the second text and the phrase “this view is correct” suggest that some jurists may have disagreed with an aspect of this rule. What problem might they have seen?2. Legal Logic. The issue in the third text is this: A grandfather has in his power both his son and a grandson by that son. If the grandson marries, which of the two antecedents must consent: the grandfather or the father or both? Given the general rule as stated in the first text, which of the following two texts gives the most logical statement of the law? As you consider this question, should it matter that both the first and third texts are from the same book of Paul's commentary on the urban praetor's Edict?
3. Double Consent. With regard to the third text, why should the consent of the father (himself a son-in-power), as well as that of the grandfather holding potestas, be required for marriage of the grandson but not for that of the granddaughter? How independent is the son's consent going to be in any case?
4. Paul versus Paul. Is it possible to reconcile the apparently divergent views of Paul on whether a son-in-power must consent to his son's marriage? The second text states that the grandson and granddaughter stemmed from different sons of the grandfather, and that these first cousins were marrying each other. (Marriage between first cousins was legal if not especially common: see Case 11.) Is such a close-kin marriage the crux of the matter? Can the third text be read to imply only that, at least in Paul's view, under any other circumstances a son-in-power would have had to consent to his son's marriage?
5. Freedom of Choice.
Lawrence Stone, the noted historian of the English family, suggests four basic models for matchmaking: “The first is that the choice is made entirely by parents, kin and family ‘friends,' without the advice or consent of the bride or groom. The second option is that the choice is made as before, but the children are granted the right of veto The third option,
made necessary by the rise of individualism, is that the choice is made by the children themselves,... with the parents retaining the right of veto. The fourth option, which has only emerged in [the twentieth] century, is that children make their own choice and merely inform their parents of what they have decided” (Stone, The Family, Sex and Marriage in England, 1500-1800 [rev. ed. 1979]). Which of these patterns seems most closely to resemble the one presumed by Roman law? No matter which pattern was theoretically prescribed at Rome, what sort of psychological interplay can you imagine in its implementation?
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