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(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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