Roman Law
11/13/2007
Outline

 

I. A SUMMARY PALINGENESIA OF THE AUGUSTAN FAMILY LAWS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. LAUDATIO TURIAE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. FORMATION OF MARRIAGE

 

CLASSICAL MARRIAGE AND FAMILY PROPERTY

 

1.

Lex Julia de adulteriis (?18 B.C.)
  c.1 no one after this is to commit adultery or stuprum sciens dolo malo, covers those who urge as well as those who commit both adultery and stuprum. [Coll. 4.2.2, D.48.5.13(12), JI.4.18.4]
  c.2 allows a father who has given his daughter in manu or who has a married daughter in potestate to kill the adulterer caught in the act if he also kills the daughter. [Coll. 4.2.3]
  c. the husband may kill only the adulterer caught in the act and only adulterers of certain kinds: pimp, actor, dancer, singer, condemned and unrestored criminal, a freedman of any of these or their children or slave; another source adds gladiators. [D.48.5.25(24)pr; Coll. 4.3.2]
  c. the husband must divorce his wife immediately after he slays the adulterer and must make a public acknowledgement to him whose jurisdiction it is in. [D.48.5.25(24).1; Coll. 4.3.5]
  c.5 he may retain the adulterer for 20 hours if he does not wish to kill him. [D.48.5.26(25)pr]
  c. very broad powers are given to accusers including having the slaves of the accused tortured. [D.48.5.15(15).6; Coll. 4.5.1; D.48.5.16(15).1; D.48.5.28(27)pr; D.40.9.12pr; C.9.9.3; C.9.9.35(36)pr]
  c. penalties stiff, loss of 1/2 of goods, power of testation, loss of dowry, relegation, death(but not completely clear). [D.48.5.28(27).16; D.48.5.28.15]
  c. if a man catches (deprehensum may not be the same thing as in flagrante) his wife in adultery and does not divorce her he is guilty of lenocinium, similarly if he does not prosecute the adulterer.  He has 60 days to do so, after which a private accuser can charge him with lenocinium for not doing so.  We don’t know what the classical penalties for this were, but know that infamia was one of them. [Coll. 4.4.1; C.Th.9.19.4.1; D.48.5.4.1; D.48.5.2.9; D.48.5.16(15).5; D.48.5.4.1, 12, 30(29).5-6, C.9.9.8; D.48.5.5; D.48.5.17(16); D48.5.11(10).1; D.48.5.30(29)pr, 3; D.48.5.34(33); D.48.5.30(29).1; D.48.5.2.2; D.48.5.15(14); JI.4.18.4; PS.2.26.12; Coll. 6.3.1-3; Coll. 5.2.2; PS 2.26.14; D.48.16.10pr; D.1.21.1pr; D.22.5.18; D.23.2.43.12-13]
  c. a man cannot sell dotal land, his wife unwilling. [PS 2.21b.2]
  c. women taken in adultery may not look at the games.  [This provision is said to be in the ll. Iuliae et Papia Poppaeae (see below)].

2.

Leges Juliae et Papia Poppaeae (18 B.C. and 4 or 9 A.D.):
  c. all freeborn may marry freedwomen, except senators and their descendants [D.23.2.23; Dio Cassius 54.16.2]
  c. senators and their descendants for 3 generations may not marry a freedwoman, an actress or the daughter on either side of one nor may the female descendant of senator for 3 generations marry an actor or the son of one on either side nor may any of these knowingly have such a betrothed or wife.  Freeborn cannot marry prostitutes, procuresses, those manumitted by pimps or procuresses, a woman taken in adultery or condemned by public judgment or an actress. [D.23.2.44pr; Tit. Ulp. 13.2; D.23.2.49; Dio Cassius 60.24.3; D.23.2.43.13; SC. De ludis saecularibus I.53 (Riccobono, p. 274)]
  c. nor may the children of such a marriage be entered into the albus. [Evidence scattered. See Acta divi Augusti, p. 171-2.]
  c. the law does not apply to concubinage. [D.25.7.3pr-1]
  c. conditions against marriage and having children are void. [PS.3.4b.2]
  c. a widow compelled by will to remain such may keep the usufruct of her legacy if she swears an oath to have children. [Frag. Vat. 58; C.6.40.2.pr-2; Nov. 22.43]
  c.7 the consul with more children is first in honors.  [Aulus Gellius 2.15; D.4.4.2; Dio Cassius 53.13.2]
  c. for 3 children in Rome, 4 in Italy, 5 in the provinces you’re excused from being a tutor or curator.  [D.50.5.1pr; D.27.1.2; JI.1.25pr]
  c. freedmen with 2 children are excused from operae. [D.38.1.37pr; D.38.1.35; C.6.6.2]
  c. a freedman or woman is freed from an oath not to marry. [D.24.2.11pr; D.24.2.11.1; D.23.2.45.5; D.37.14.6.4]
  c. a woman who has an underage tutor is given one by the urban praetor to marry an constitute a dowry. [Tit. Ulp. 11.20]
  c. frees from perpetual tutelage a free woman with 3 and a freedwoman with 4 children. [GI.1.145; GI.1.194; GI.3.44]
  c. limits placed on divorce (a vague statement in a literary author—Suetonius [Augustus 34] ).
  c. husband and wife succeed to each other by a 10th with a 10th for each child and a usufruct of 1/3, the lex Falcidia notwithstanding? [Tit. Ulp. 15.1]
  c. husband and wife can take the whole inheritance between themselves if they are not s/t the rules of the lex (under or over age) or if they have the ius liberorum. [Tit. Ulp. 16.1]
  c. incapacitates to take an inheritance those who marry contrary to the provisions of the rules. [Tit. Ulp. 16.2]
  c. changes the rules on times for sponsalia--some kind of prohibition on extending the time of marriage. [Suetonius, Augustus 34; Dio Casssius 54.16.7]
  c. prohibits single persons from taking inheritances; allows those married but w/o children to take only 1/2 of an inheritance. [GI.2.111; Tit. Ulp. 17.1, 16.1; GI.2.286a; rubr. Tit. Ulp. 13]
  c. certain persons excepted. [Vat. Fr. 214-219]
  c. provisions on the capacity of women [Dio Cass. 56.10.2]
  c. on time to get remarried [Tit. Ulp. 14; Suetonius, Augustus 34]
  c. on dotal slave manumitted by the husband [D.24.3.64pr]
  *c.35 = D.23.2.19 forbidding marriage: ‘By the 35th chapter of the lex Julia those who wrongfully [iniuria] prohibit children whom they have in power from taking a wife or being married or who do not wish to give a dowry are compelled according to a constitution of Severus and Antoninus to be compelled by the proconsuls and provincial presidents to place and endow [them] in marriage.  “Prohibit” moreover is understood to include those who don’t make a positive effort.’
  c. provisions on freedmen’s wills, gives the patron the right to take if he has the ius liberorum. [GI.3.42 (cf. JI.3.7.2); GI.3.44; D.37.14.11; D.37.14.17; GI.3.46-53]]
  c. on escheat. [GI.2.206; Tit. Ulp. 17.1, 18, 17.3; GI.2.206-7]
  c. on void legacies. [Tit. Ulp. 24.31, 28.7; C.6.51.1, 2, 2a, 3, 4; Tit. Ulp. 19.17; Tacitus, Ann. 3.28]

 

 

I.3: Orbata es re[pente ante nuptiar]um diem utroque pa[rente in rustica soli]tudine una o[ccisis. Per te maxi]me cum ego in Macedo[niam abissem], uir sororis tua[e C. Cluuius in A]fricam prouinciam, [non remansit inulta] mors parentum.
You became an orphan suddenly before the day of our wedding when both your parents were murdered together in the solitude of the countryside. I was  mainly due to your efforts that the death of your parents was not left unavenged. For I had left for Macedonia, and your sister’s husband Cluvius had gone to the province of Africa.

I.37: Omne tuom patrimonium acceptum ab parentibus communi diligentia cons[ervavimus;] neque enim erat adquirendi tibi cura, quod totum mihi tradidisti. Officia [ita par-]titi sumus ut ego tu[t]elam tuae fortunae gererem, tu meae custodiam sust[ineres. Multa] de hac parte omittam ne tua propria mecum communicem. Satis sit [hoc] mi[hi tuis] de sensibus [indi]casse.
We have preserved all the property you inherited from your parents under common custody, for you were not concerned to make your own what you had given to me without any restriction. We divided our duties in such a way that I had the guardianship of you property and you had the care of mine. Concerning this side of our relationship I pass over much, in case I should take a share myself of in what is properly your. May it be enough for me to have said this much to indicate how you felt and thought.

*II.39 sororis soc[rusve] officia pietatemque mihi d[einceps praestituram].
[Y]ou would thereafter take upon yourself the duties and loyalty of a sister and mother-in-law.

*II.51–53  Utinam patiente utriusqu[e a]etate procedere coniugium [potuisset donec e]lato me maiore, quod iu[sti]us erat, suprema mihi praesta[res, ego vero super]stite te excederem, orbitat[i f]ilia mihi supstituta.
Would that the life-span of each of us had allowed our marriage to continue until I, as the older partner, had been borne to the grave—that would have been juster—and you had performed for me the last rites, and that I had died leaving you still alive and that I had had you as daughter to myself in the place of my childlessness.

*II.69 Te di manes tui ut quietam patiantur atque ita tueantur opto.
I pray that your Di Manes (the divine spirits of the dead) will grant you rest and protection.

 

 

(Most of the texts on this topic are in the Materials, pp. 342–6. Given below are the key texts and those that are only cross-referenced there.)

D.23.2.1: Modestinus, Rules, book 1: Marriage is the union of a man and a woman, a partnership for life involving divine as well as human law.

D.23.2.2: Paul, Edict, book 85: Marriage cannot take place unless everyone involved consents, that is, those who are being united and those in whose power they are.

D.23.2.5: Pomponius, Sabinus, book 4: It is settled that a woman can be married by a man in his absence, either by letter or by messenger, if she is led to his house. But where she is absent, she cannot be married by letter or by messenger because she must be led to her husband’s house, not her own, since the former is, as it were, the domicile of the marriage.

D.23.2.6 Ulpian, Sabinus, book 85: Finally according to Cinna, where a man married a woman in her absence, and on his way back from dinner by the side of the Tiber, he died, it was held that she ought to mourn for him as his wife.

D.23.2.7: Paul, Lex Falcidia, sole book: So it is possible here for a virgin to have a dowry and an action for dowry.

D.23.2.19: Marcianus, Institutes, book 16. By the 35th chapter of the lex Julia [probably 18 B.C.] those who wrongfully [iniuria] prohibit children whom they have in power from taking a wife or being married or who do not wish to give a dowry are compelled according to a constitution of Severus and Antoninus to be compelled by the proconsuls and provincial presidents to place and endow [them] in marriage.  “Prohibit” moreover is understood to include those who don’t make a positive effort. [loose trans. but I think that’s what it means.]

D.23.2.21: Terentius Clemens, Lex Julia et Papia, book 3: A son-in-power cannot be compelled to marry.

D.23.2.22: Celsus, Digest, book 15: Where he marries someone (ducit uxorem) because his father forces him to do so and he would not have married her if the choice had been his, the marriage will nevertheless be valid, because marriage cannot take place without the consent of the parties; he is held to have chosen this course of action.

D.24.1.32.13: Ulpian, On Sabinus, book 33: Where a wife and her husband have lived for a long time separated, but still preserve the matrimonial bond (which we know sometimes happens with persons of consular rank), I think that donations will not be valid, since the union has always existed; for marital affection, and not coition, constitutes marriage. Where, however, the donor dies first, the donation will then be valid.

D.24.1.66: Scaevola, Digest, book 9: Seia, when about to marry Sempronius on a certain day, before she was conducted to his house, and before the marriage contract was signed, gave him a certain number of aurei. I ask whether this donation is valid. I answered that strict attention should not be paid to the time, that is, whether the donation was made before she was conducted to his house, or before the marriage contract was signed, as very frequently this is done after the marriage has been celebrated; for unless the donation was made before the marriage was contracted, which is understood to have been done by the consent of the parties, it will not be valid.
            (1) A girl was conducted to the country-seat of her intended husband three days before the ceremony took place, remaining in a separate room from that of her husband, and upon the day of the marriage before she passed under his control, and before she was received under the rite of fire and water, that is to say, before the nuptials were celebrated, he offered her ten aurei as a gift. The question arose that if a divorce took place after the marriage was solemnized, whether the sum donated could be recovered. The answer was that what had been donated a gift before marriage could not be deducted from the dowry.

D.35.1.15: Ulpian, On Sabinus, book 35: Where a legacy is bequeathed under the following condition, “If she should marry in my family,” the condition is held to have been complied with as soon as the marriage ceremony has been performed, although the woman has not yet entered the bed-chamber of her husband, for consent and not cohabitation constitutes marriage.

C.23.2.26: The Same [emperor Justinian] to Julian, Praetorian Prefect. [530.] If anyone should grant freedom to his foster-daughter, and marry her, a doubt arose among the ancients whether a marriage of this kind should be considered lawful or not. 1. Therefore We, desiring to resolve this long-existing doubt, decree that such a marriage is not prohibited, for if all marriages have their origin in affection (adfectu), and We find nothing impious or contrary to law in such a union, why should We think that they ought not to be allowed?  No man can be found who is so wicked as to afterwards marry a girl whom, in the first place, he treated as his daughter; but it should be believed that he did not originally bring her up as his daughter, but gave her her freedom, and afterwards deemed her worthy to be married to him. 2. A woman should, by all means, be prevented from marrying her godfather who received her in baptism whether she is his foster-child or not, as nothing else can be so productive of paternal affection and just prohibition of marriage as a tie of this kind, by means of which, through the mediation of God, the souls of the parties in question are united.

 

 

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