II Prohibited and non-marital unions in late antiquity

Transcription

PROHIBITED AND NON-LEGAL UNIONS
PROHIBITED AND NON.l.EGAI. UNIONS
, Aflf7'1'iage 10 lwo flNIIRtIl SiRlII/laIItmIS/,
110-18). Mone smlJllJly. hi: could ~ prosecuned for 11tJ/!mN. illicit It'S with a res
I~
wom:m. which carried 5I;..,ne criminal pel'lalti~s under ~ AUj;IISmn adul
aw [Ste
Chapter 2. Part I.B]. ~ora. as s~ had ronsicic:rr:d hent'lf. married ..
• was not liable
for lIMP"', and could m:laim what she had given her spuriGus h
• but could not claim
an, ~mc:ha\ gifts pfllmiSftl (thou,!;h mdendy not already'
[0 her.
The ~ ·wif.: of Theodora's -husband- is
.
K :I IIIdItr{lIl1tilitu {see Chapt..r I.
Pan I.BJ. indicacin8 that. like Tbendora. ,~
• lIISpI.'Ctabio! woman and his relationship
macr., The I'RIln had been able to dccciy"
with ~ could wmone br: const
Th<:odorlI into marryins him
is first wife _ back in his home provinc~. and thr:rc
woul'" br: no ~ ....ay fur
ora to check on his past. One wonders how s~ had eventually
ltamed of lhe orhr:t . $ existent'!!.
In ,;93, t
peror Tbr:oc.Insius e:cplicidy prohibited poIypmy. in the context of a ban
"J
malTia.!:!e customs 1- Pan 11.0J.
finally. it should be said dlat jt was impossibl~ in Roman law fOl' a man [U Mve II manta!
nelatiOlllhip with nro women at t~ same dm~. without. divorcing on~ woman [0 marry
anod!er{GanJllt'r 1986a.91-3):
Cod.Just. 5,5,2. 11 December. 285 Emperors Diodetian and Muimian Augusti to Sebastiana: It is allowed to no one who is under Roman authority to be able ro have
wives openly. since even in the Praetor's Edic[ men of this sort have
been branded with legal infamy (iNfamia). The appropriate judge will noc
allow this matter to go unpunished. POSted on the third day before the Jdes
of December in the consulship of the AuguStus Diocletian for the second
time :lnd of Aristobulus.
[WO
Sebastillla may haVI: been onl: of me "wivcs" of II big.;tmous man. who _ all'lCfrned
about the stalUS or her marria,st'. Another woman, 1'heodor.a, wrote to I~ emperors Valerian
and Gallimus after discO'lefing dlllt she had -married" OJ man who alrelldy had a wifi:. She
feared that she milht be liable for adulrery charges and wondcned whether she could still
claim ~ beuomal Sifrs he had promised Iu:t'. The ernpt:RlI'S' fluhl:r 1en!lthy n:ply was divided
in twO b, the compilen of the CfHk tfJ_i.ktll:
Dr
~
II Prohibited and non-marital unions in late antiquity
J.,;,I~ Roman Law. lib classical law. c.lcl'lied le8a! validity to some unions. As with classical law.
mOSt of these prohibitions WI'.'I'I: based nn close kinship or on ,rear disparity in ~ starus of
the' partneR. In lite antiquity. however. rhe nlllllbeT of prohibitions increased. in regard both
f(I kinship lind statllS. And pe'nalties f()r thosr: "'isobr:ying prohibidons bour:d on statUS an:
much harshet- in the:- luI'.' period. with corponal punishml:Qt and tvtn death n:placi()8 Wlull
had br:f:n mO$II), flnandal p:naltj~ - or simply lack of 1I,!al n:cognition - f()r non-marilU1
uninllS in thl: t'arli"r Empirr:.
Cod. Just. 9.9.18. 15 May. 258 Emperors Valerian and Gallienus Augusri and the Caesar to Theodora: Without a doubt legal infamy attends the man who had two wives at the
same time. for in this maner it is IlO£ the effect of the Jaw - since our citi
zens an.' forbidden ro contract multiple marriages - but the intention that is
considered. (1) Moreover, the accusation of sIIIprll11l also will be formally
brought by a legally authorized accuser against the m:ln who asked for your
hand in marriage. pretending that he was unmarried, when he had left
another 11I411r/a"liI;as in the province. But you an.' free from this charge.
because you believed that you were D wife. (2) Certainly you will request
from the governor of the province that all your possessions. which you
lament were taken by him under the pretense of marriage. be te$rored to you
by immediate requisition. But those things. which he promised he would
give you as his fiande, how can you effectively recloim them as if you were
(legally) a fiancee? Received :It Antioch on the Ides of May in the consulsJlip
of'Thscus and Bassus.
A Prohlbitlous /msed oll!t.buhi/1
A 1_ of 342 banned all undr:-nir:cc marcia!:", ~m,y implicitly revokin8 th., firsc-cenrul)'
senatorial dr:cree which had allowed marria,gl: br:Ewem II 'IlIUman ancIllI'.'r fathe:-r's brother ~
Otaprcr 3. Part I.A.2J. TIll'.' law _ srr:cifll11lly addrcmd to residents of Phoenicia (modr:rn
Lebanon). lind was I:tIaCccd in Antioch (in IIncU:nt Syria. IlOW in sou'~m 1brkey), which was
an imperial KIlt. This negion had a rradition of cI!J5eokin mamas", which rmpemrs sousht to
S\lppress: about 50 yt'M$ !:lid;!!,. Oiucl!:tilln and Muimilll had cnactr:d II long ed iet from
Danwcus (abo in Pbor:nicia) srrongly cnndt-mn;n, them (in Part I.A.5). Th~ -(111'11111
penalty" in t~ fourth century could be: dc:ath Of exile. Whclhcr such punishments wene attu
all, applied in cases of illaSMlU5 mamaS" in this period is unknown; both Icpl and
n..n..legal snun:es 508111:11 that it was I'IIIt difficult lOr those with infllK'OCe to obtailllll! impe
rial dispensation fPl' ctosr:-kin marriagt'5 (see selr:ction (rom Ambrose. below. and Cod. ~.
.'\.10.1 in II.C]. 1111: penalty ill t~ fDllowing I..w was mitiganed somewhat by Cod. ThI:od.
3.12.3 1br:low).
Cod. Theod. 3.12.l, 31 March. 342 things which the man who asked for your hand in marriage promised he
would give you as his flllncCe. pretending that he was unmarried when he
had left another 11I41lrfamilias at home, since you were not a flllncee because
he had a wife established at home. (date omitted)
Emperors Constantius and Constans Augusti to the Phoenician Provincials: If anyone has believed - abominably - that the daughter of a brother or a .
sister should be made a wife. or has flown into her embrace not as a paternal
or maternal. uncle. he shall be held by the penalty of a capitlll sentence.
Given at Antioch on the day before the Kalends of April in the third
11
consulship ofConstant ius and the second consulship of Cons tans Augusti:
As a bipmist. ~ I'RIln who ~married~ 11Icocba will sufl'« ittf'-itt. which would tnt"il
certain Itgal disabilities SIKh as not being able [0 rt'pI'CSeIlt others ill court (Garoner 1993.
Classical law had pmhlbi~ thl: marriage of a man with his former matlu:t'·in ..la.... or
daughttr-in law {Gaius. IlIJIiluln 1.6.'1. Part I.A.II. OOt it is only in late Roman law thaI
160
161
Cod. JUSt. 5.3.5 (address omitted): You cannoc effectively reclaim those
PROHIBITED AND NON·LEGAL UNIONS
PROIIIBITED AND NON-LEGAL UNIONS
utUnns bKwttn fOrmer siblinp·in-Ia.... an: banned. TIle- provisioos of tilt fullowing Jaw M:R'
Rreared in lau:r I~'N$ of tile c:mp:ron Theod.osius I [Cod. JuS[. ~.5.5. dated 3931. 1lv:od""ius
II {Cod. Thcod. ;I.IVI, 4121. and Zt:no [Cod. Just. 5.5.A. 471; Slot' bc:lowl. Similar prohibi
tions an: found in d", rulings of fourm-c,ntury churcb councils. llIId thl: impwial laws _re
probably inftumcc:d by ChriStianity. ~2
promised. shaIl, lIL:cording to the ancient law. yield to the advantage of our
Cod. Theod. 3.12.2, 30 April. 355
Emperors Constantius and Constans4 ;l Augusti and Julian Caesar to
Volusianus, praetorian prefect:
Though the ancientS believed that it was legal to take a brother's wife
after the brother's marriat,-e had been dissolved. (and) even legal after a wife's
death or divorce to commct marriage with her sister, everyone should
abstain from marriage of this sort nor should they think that legitimate chil
dren are able to be created from this associacion. For it is agteed that those
who will be born are illegitimate (s/1IIrii).
Given at Rome on the day before the Kalends of May in the consulship of
Arbido and Lollianus.
'I'I1c nnpc:mr Thcodosius I (!'d,ned 379-;l9'}) banned marrill,!le between first cousins. His
law is 00 lonler C'lCtant, but is referred to in contemporary nOP-lellai sources (Epil_ tk
c-rmn 48.10; l1l1<I ft1> Ambrose and Augustine below) and in me. following laws. e.na.:ted
afur his dealh.
The lirsl law [Cod. Thcod. 3.12.3], c:nacttd only a yc:ar aftet lllt'Odosius' dc:iath. mitilatCS
tM appuendy l!'lCtn:mc:ly haoh provisiOl>S of the ocisinallaw (confISCation of Soods and exile),
while still nlfosing legitimacy 10 iDCIStuous marrillJcs and rhrir olfsprinS. AoOtMr law nine
years later [Cod. Just. '.4.19] rcstinds the ban on cousin marriage altO£«:thl:r. Though in the
III1It1eS of both tM sons ofTht.odosi"". Honorius who ruled dle wesm-n Empire and An:adius
who ruled in the _t, rhcse laws are both of Aradius. lIS the placu of promul,gadon
(Comtlllltinople and Nicaea. both cities of dlr _em Empire) and adcIresRt: (EutychianUl.
praetorillll prefiea in tM eaSt) show. In eM wcsmn Empire. mattiase bc:twc:m musins
cOPtinued to ~ illegal, bue II law of 409 Sl.l&!:m:5 that impc:rial indulgcnc:es allowing such
marrillgltS m"n: re,llUlatly granted [see Cod. ThI:od. 3.10.1,409, in Part II.C).
fisc.
He shall bequeath nothing by his will to untelated parties. but whether
(he has died) testate or intestate, those persons shall succeed to him right
fully and by [he laws, who by chance have been born from a legal and
legitimate marria8e. That is, from descendants: son. daughter. grandson.
granddaughter. great-grandson. great-granddaughter; from ascendants:
father. rnother. grandfather. grandmother; laterally: brother, sister, paternal
uncle. paternal nunt. lin" Rnlelll:t' ht're omim-d. dw la.... lIOCS on tl> SOl)' thaI if (hose whl>
an.- allowed (Q inherit haw advised CJf .....Irc:d in making the incCl'Stuous
11111 sU(cc:.:d. OO( are 1_"...1 <wt'f in favllr of tlte ~XI ""i.!lillie h~jr.1
marrill!l~.
mit)' may
Of course. that which we decree concerning men also is to be observed
concerning women who have stained themselves by lISSOCiadons of the afore
mentioned kinds. But if none of the people mentioned before are living, the
opportunity lies open for the fisc. If by chance any already in the past - that
is, before the promulgation of this law - have been somehow able to lie
hidden. stained by the illicit crimes of the marriages mentioned above. we
order that the bond and status of this law pertains (to them).
Given at Constantinople on the sixth day before the Ides of December in
the fourth consulship of Arcadius and third consulship of Honorius Augusti.
Cod. Just. 5.4.19, II June. 405
Emperors Arcadius and Honorius Augusti to Eutychianus. praetorian
prefect:
By the salubrious nature of this law. license has been granted for cele
brncing rnarriages between cousins. SO that now that the authoriry of the old
law has been revoked and the fomenting of slanders has been extinguished.
marriage between cousins is to be considered legitimate. whether (the
participants) have been born from two brothers or frorn two sisters or from a
brother and a sister. And from this marriage-Iegitimare (children) are
produced and considered to be heirs to their own fathers.
Given at Nicaea on the third day before the Ides of June in the second
consulship ofSEilicho and the consulship of Anthemius.
Cod. Theod. 3.12.3. 8 December, 396
Emperors Arcadius and Honorius Augusti to Eurychianus. praetorian
prefect:
The imperial opinion remains concerning those who were absolved or
punished in any way after the law which was formerly elUlcted. If anyone
after this has polluted himself with incestuous (marriage) of his own cousin,
or of the daughter of either his sisrer or his brother, or finally, of his
(brother's) wife, whose marriage has been prohibited and condemned.44 he
shall indeed be free from the penalry designated by the (previous) law. that
is, of fires and proscription; he shall even have his own property for as long
as he lives. But he shall be believed to have neither a. wife nor children born
from her, he shall certainly neither give while alive nor bequeath when dead
anything to those mentioned above, not even through an intermediary. The
dowry, if by chance according to custom it has been either given or stated or
nw aclual fn:q_y or clost'-kin marria8~ in lhe: Roman Empin.- has been debaled [Slmw
and Saller 19114. Good)' 19831. Evidenc!: from IhI: fOurth and fifm cCl'OcuriCli suUCSts IMItate
Roman smamrial aristocrats ronsidned matri",e with reillth-rs, C.'ilhl:t b)' blood .... muriagc:.
III hi: an "Pf'I'OI'NIC.' WlI)' of lu:q>ins Cl'SIa"'S lind inheritances wilhin lhe: family. but il is not
usually possible 10 dc«:rmillt' how dosety n:laled were lbe aristocrats who acruallr married
[E.....nsGrubbs 19')~, 153}.
MarnaB" Mtwtt'n t..... omprinS of siblings dot's seem to have: caused some discom(on in
tM Romm west. In tilt' toarly 390s Ambrose. bishop of Milan. wmre (0 the. senalOr PIIt~mWi.
whl> had served 11$ proconsul of Africa url<Itr ThI:odosiWi I, protcsling n marriasc: which
Palc:roUS mill amngins beCll/ftn hil son CYDl:8ius and his gr.ndcbulhcer (from his daughter
by llnothl:r wife).~' tolatriase bc:twc:cn Il mlln and his sister's cbu.!lhr« had always been illegal
under Roman Jaw {Part I.A_2], but this did nIX SCl't'm (0 worry PamnUl. who was lIpparmdy
conrldenl of !,'CIlinS imperial l>ermiuion (or Ihe march. Ambrose. on 1M ot.....r hand, was
162
163
alarmed at die: proposed marria,G<', and in"okH boI:h divine WId imperial law in his argu
GotI, writren in the early fifth ce.ntury. AU8ustine of Hippo gives much die -.me mtionale
apinst kin marria,G<'. especially between cousins.,*l 11Iou&h in early (Old Testament) times.
Augustine lars. patriarchs practicc:d dose-kin marriage because of the lack of available pan
ners outside die: ramily. now mtn are able to esa:nd their IlII1p of relationships and influence
beyond their kin. Momwer, according to AlIIIJftine, though cousin rnarria,G<' had only
recendy been rmricced by law, it had ne-ver hem a pq.ulat option. In addition to practical
cOlUiderations (the dnirabmty of f"lItcndi11B family oes), it 1mlt against modesry and F.tmiIy
fl'tling for the SUM penon tu be both ,. blond ~lation and a smW pillnfl' (Ambrose had
made much d~ same point in his Imer to Paremus).
menu.
Anomer lettu of Ambrose [EpiJllt 59 (8<i)}. written to CynegilJS, nrt'l:Ills that d~ SOIl was
not panicularly Iwppy about his pl'llpCl$llcl m:uria,G<' but _ IlCcedillg to it OUt a sellK' Ilf filial
dury C1itlfls). It may be, however. that dHpia: Ambmsc:'s pn!WtS. the marriage took place.~'
Ambrose. Epistle 58 (60)
read tbe greeting of Patemus, my comrade, but the matter aboUt
which you consult me is not ac all paternal: chac you wish to join your grand
daughter from yout daughter to your son - a proposal worthy of you neither
as grandfarber or as farher. And so consider whac you have consulted about.
For in resard to everything which we wish to do, let us first examine the
name ofthe deed and then we will determine whether it is worthy of praise or
vituperation....
(2) ..• You ace preparing to join your own son and your granddaughter
from your daughter, thac is, (you an:! preparing) that he receive the daughter
of his own sister, though he was born from a mother different from his
mother~in-Iaw. Examine the piety (religiD) of the names. For indeed he is
called her uncle, and she his niece. •.• You will be called grandfather and
father-in-law wike, and she also will be named granddaughter and daughter
in-law by a different name....
(3) _.. For what is tbere that can be doubted. when divine law even
prohibits parernal cousins. who are associated in the fourth degree, to join in
marriage? But this (marrill8e) is the third degree, which seems ro have been
removed from conjugal joining even in civil law. '"
(1) I have
rar
Augustine. Cilyti/GoJXV,16
... Moreover. who would doubt that the marriages even of cousins have
more honorably been prohibited at this time, not only according to those
reasons we have argued, so that on account of the mUltiplying of relation
ships one person would not have tWO bonds of kinship when cwo (people)
could have them and tbe number of kin could be increased, but also because
there is in some way or other a certain natural and laudable quality of
human shame (t'tI'fCIIRllia). So thac. from her to whom the reason of kinship
owes reverend honor. it nevetcheless restrains the lust about which we see
even wifely modesty blush. though it resulrs in children.
At die: end of his lera:r. Ambrose mninded PatmlUS that marrying clost relations ro tach
other would a:striCt the extmsion of ramily bonds. III book 16 of his massive worIc Cil] 11/
Both AmbroR and Au,gustine lived in the Latin-sptakin& milieu of the R _ west,
whc;re man"iage ber_n clost kin had always been (rowned upon in law and CUStom (Pm
I.A). If Augustine is right, Romans had I!e'VU &"oa:d cousin marriage. and it is wlXth norinS
thar though the wesa:m emperor Honorius showed himlldf willin& ro gram indulgeoces to
(presumably influential) cirizens who wished to ma.n"f against the law [Cod. Tbeod. 3.10.1 in
Parr II.C}, did not actually repeal his &thtr Thtodosius' law. whereas his brachtr Arcadius
in me _ did (Cod. JUSt. ~.4.19, abc-). In me medirval west,limirs on c1D$i!-kin marria,G<'
hearne twr striertt. particularly under the direction of the ChriscilUl Clurch [Goody 1983)·
Many of the peoples of the _em h:aIf of the Empire, however. had mditionally praCticed
ma.riage unions between kin. including bet\W:ell uncll' IUId nie« and even siblinss (or half
siblinp). Though the imposirion of R _ marriage law on provincials alier 212 atems to
have Wgely eliminated bracher-sister m.rria.lle in EgfPC. jt is cleoar from later Roman laws
that clost-kin marriage continutd in some places. Bolb Dio('lerian in 295 [Pan I.A.~) and
Conscmtius in 342 [Cod. Tbeod. 3.12.1. a~) had dirttted lesislarion II) Near &stem
provinca. In dw mid-fifth centory. Theodom. bishop of CynblJS in nonhern Syria. heatd
that in the nearby city of Zeuglrul. marria,G<'S benrctn uncle and nitre and belWftll cousins
were taking place. In a strongly wotdc!d leuu to the masmma ofZeusma,Theodom made
the same arglUlll:tlts asainst such uni_ 11$ had Ambmsc: fifry years eadiu.4B LtSislation of
the iiltdH:entury empenm jlJStiniln and justin indica_ that elOISe-kin marriaF. "idendy
including Sibling and t"I/tn farber-daughrer unions. _ sciU practiced in pam of the "'tern
Empire IM:'at to the Pc.rsian Empire [let 1988J. Coosin marriaj;e _ . howt'l/er. off'lCially
allowed by justinian in his '1II/illllO [1.10.4) of H3.
A law of the taSlem Empire dared 47~ bans the marria,G<' of. mIln to his decl:llSed
bnxhtr's wife. This practice. known lIS -levirate marriage.- was an ancient jll!Wisb 0JSmm (set'
~ 25.5-IOJ. but _ms to have b1.-en practiced raR!ly by Jtws in the period:afrtr the
FiAr Jrwisb Rmllt and dntNCtion.. of the Temple [Dan 199~. 152-7). Along ""ilb marriage
to a li>rlllfl' wife's $istrr. marriage to II brother's wi(~ had already been prohibited ill 355 [Cod.
T11C1od. 3.1l.2. above}. The law of 475. however, refel1 on.Iy ro a brother'. marryins the srill
virgin wife ofhis dK~ bracher. which is called a pl'llC'tice ofMthe Egypc:iaos:
164
16,
{Ambrose gi1/eS scriptuml and mcnlllrguments againn the man"iage. heft, omitrtd.}
(8) But if divine matters pass you by, at least the preceptS of the
emperors, from whom you have received the most splendid honor. ought by
DO means to bypass you. Por the emperor ThetXlosius has also forbidden thac
paternal and maternal cousins come together among themselves in the name
of marriage. and he bas ordained a very severe peno.lty, if anyone should have
dared to defile the bonds of brotherly duty ....
(9) But you say that (the law) has been relaxed for some people; however,
this does not prejudice the law. That which is nor decreed in common, only
benefits the person for whom it seems to have been relaxed with a very
different sort of envy. Moreover, though we read in the Old Testament that
someone caUed his own sister Pwife," it is unheard-of that anyone should
receive his own niece as wife and call her "spouse." ...
(11) Therefi::lre it is necessary for you to depatc from this intention. which
even if it were permitted. still would not propagate your own tamily. For our
son owes grandchildren to you. (and) our very dear granddaughter also owes
great-grandchildren to you.. FareweU (to you) with aU of yours.
m:
Cod. JUSt. 5.5.8. 1 September. 475 Emperor bn049 Augustus to Epinicus. praerorian prefect: Cerrain of die Egyptians have joined the wives of their dead brothers to
themselves in marriage, because they (the wives) are said to have remained
virgins after their (husbands') death. evidently thinking - because it was
pleasing ro certain founders of the laws - that marriage does no~ really
appear to have been contracted since they had not come together carnally;
and marriages celebrated at thllt time have been confirmed. However, we
ordain by the present law that if any marriages of this type have been
contracted, their contracrors and those born from them are subject to tbe
tenor of the ancient laws, nor do they (the marriages) appear ro bave been
confirmed or confirmable by the example of the Egyptians, concerning
whom we spoke above.
Given at Consrantinople on the Kalends of September in the year after
the consulship of the younger Leo.
B Pro/Jibiliolls bllsed on slallis
11'1 addition to I1Iillriage prohibitions but:d on !r;iNhip. Iare Roman tmpemr. t:Xpandtd rhe
CBRlOI']I' of prohibitiOO$ b:I5cd on laatUl. and d«rt:td harsher pmalrics f(lf" rhose- wh" I:IIrtn'<!
into ptohibired unions.
'
1 ExponsifHI ofIht A.ngns/aN prohibitiONS
Th.. Au,ustan le.isbtion against ~tS bet::_ rnembt-cs of t~ _Iorial d;w; and
former $fa,," [Pan: I1.SA} was expanded 10 include membl:l$ of provincial and municipal
arisrocraci". lind the CBteSOlY of women who wen: prohibited from lnalT}'ill8 such men was
likewise expanded [Evans Grubbs 1995,283-9'1: McGinn 1999}. A lalt' law of CooSll1Dlinlt'
stt forth his new rules:~o
PR.OHIBITED AND NON·LEGAL UNIONS
charge of publicly sold merchandise. So that, whatever their rather has given
ro such children. whether he has called them legitimate or natural." is to be
taken back in its entirety and given to his legitimate ofl$pring'6 or to his
brother or sister or lUther or mother.
But whatever of l10y kind has been given to such a wife'7 or has been
conferred upon her by bill of sale, this also W': order ro be taken back and
returned.'8 If anythinf that is to be returned to those to whom we have
ordered or to our fisc 5 is sought or is said ro have been entrusted (to such
women), we order that the women themselves. by whose poisol15 the minds
of the ruined men hav.e been infected, (be subjected) ro tortures. And so if
anything has been given through the man himself who is said to be the
lUther or through anOther or through a fmudulently substituted person60 or
has been bought by him or by another or in the name of the (illegitimate
children) themselves, it is immediately to be taken back and returned to
those to whom we have ordered. or, if they do not exist, it is to be claimed
by the power of the imperial fisc. But if. though they exist and are present61
they were not willing ro act. prevented by an agreement or an oath, the fisc
sha1l enter upon the whole without delay.
For those who are silent or are lying. a time limit of tWO months shall be
set to defend themselves from the fisc. If within this time they have not
either withdrawn (the properry from the illegitimate children) or appealed
to the provincial governor in regard to withdrawing (the properry), our fisc
shall taken possession of whatever an impure generosity bestowed on such
children or wives, seeking out with severe torture the things given or
entrusted, under a fourfold penalty.62
Moreover. the son of Licinnianus, who has been captured while fleeing. is
ro be bound with fetters and condemned to the service of the weaving mills
at Carthage.63
Read out ilt Carthage on the [twelfth} day before the Kalends of August
in the consulship ofNepotianus and Facundusf>4
Cod. Theod. 4.6.3.21 July. 336 Emperor Constantine Augustus to Gregorius (praetorian prefect): Ie is decided that senators or per/minimi,'S1 or those in the cites whom the
duumvirate or the office of quinquennal or the diStinctions of the office of
flw:nen or a provincial priesthood adorn,5l are to undergo the stain of ill/amitl
and become peregrines under Roman laws.S; if, either by their own judg
ment or by the right of a rescript from us. they have wished to consider
among the number of (their) legitimate children those who have been
begotten from:
a slavewoman or the daughter of a slave woman or his freedwoman or (the
daughter) of his freedwoman, whether one made a Roman citizen or a
Latin.54 or an actress or the daughter (of an actress), or a ravern-keeper or the
daughter of a ravern-keeper, or a humble or despicable woman (trJ h,m,ili I'll
IIbitrtll) or the daughter of a pimp or a gladiator or a woman who has been in
Th~ lisl of waml:l'l whom lWRators and provincial and localllOCllbles IU'., forbiddtn (I) I11IIIT}'
includH nUf only fn:tdwoml:l'l and acm:sscs.
had bten h:gally ineligible for maniaSI:
wirh Sl:MIUI'lo lind rhei, dtSCendann unclt:r Ihe AU8umln laws [.see Parr I.BAl bur also lla\'I:$,
\\'ho had Rl!ftr und.,.. Ruman law bttn allk to contfllCl IeSIll m:Ilriage (Parr I.B.!}.
Pnll!ltitult'l. who under classil.'Ill law could not Imrry Itny ftftbom man (including. of caulSt'.
senators), art IlOl' nplicidy memioned in Cod. Tbeoc:I. 4.6.3. but pmumably iIJI: alDan. rl1oKo
in tilt- "humble lind dnpiublct CIln:gory. Tht orhc:r women mentioned 'lIQUid have bten of
Y1:ry low HalOS; sladiarun and pimps ftrt legally dassifJed with ptosrirLlft'l as subjter to
infamy (itt/"",iJ), lind lII\'ern·k=pt'rs wert' suhjn:t to Ufhtr Iq:al disabiliries in btl: Roman law
(f"male la\'WI-k~ wer~ equattd with prostitutes in II law of Con_tine on adulltr)'
rrosecuriooS).M CclllSrllntint' was IKlt only txtC'ndin8 the car~Bory of high-saatuS men lOr
whum lowhum women wttl: ineliBibl1t' as legal wiw:s, but abo exct'nding rhe category of
wcomm whose birth or ocruJ>llrion renden..J lhem indi&ible [McGinn 1999}.
MO~'l:r, women in 1m: pmhibirL..J group
did m;ci'rt somc:thins from high-l'IInking
men, tlr whelSl.' (hildn'fl hy the1St' 1111:1'1 n:ceivL-d _tltins, WI:tt' mttalmtd wirh ronuFt'.
Tt..ture wwld in IIlt'nt.'flll only be: III'PRlrriatl: ((I pcoplt uf IbVl:' ur very luw StAtUS, and is hert
166
167
wm
wm
PR.OHIBITED AND NON·LEGAL UNIONS
(as normally in Roman law) used IS a muns of CUl'Ktins; informlltiwl. No« the dwactmza.
tion 01 the womm lIS ~infecdna" with ·poisons" thl: minds of noble IMn - wlKI considtr tlltm
rlltir wiYH IIIld their children legitimare. It is also intereSting that thl: law foresees the possi
biliry that legitimate membelS of the nen's families may try to deni..e the law by nOt
comins fotwtud or IM1I by helpin, the illeshimate children to claim thl:ir Iq;acies or lifts. It
appe;lO that 1tIIIII)' subjects. nen those of high rank. did not IIgree with lhe erRptI'OI"S am
tude toward unions of those 01 different swus. This may be due lit least in part ro the fact
that QlIU\y of the new senatOl$ and oftice-hoIdm. especially in tilt _Iem Empire. were
themselves rebtively humble ori,ins [Evans Grubbs 1995.287--9].
OYer the following CCI1tlJry emperoB, in bcxh the _tern and w_m haI¥e5 of the
Empire. contiDlJed to _ I lelislation on the inherimncc: rilhlS of ilkgitimare children bom
from w unians prohibited by Con$tanline in 336. A law of tilt wmem tmperor Valentinian
I allowed ille,itimate children or their molher to illherit up ro one-fwrth of their fathtt'$
eKlIfI! if there were no legitimare hdlS. or OIIe-twI!lflh if we wete [Cod. Theod. 4.6.4••n l}.
This was II subsuntial impwrctnl!Ot on COOSI:Imtine', law. which had prohibitc:d him from
leaving anythinl uOOet troe threat of SC'VtfI! penalties. But the policy on iIIegitimare childten
continued to fluctuate. with wesrem emperors Min&, a more ~ I1ttitude and eastern
empel'Ot'S generally adhering 10 Valmtinian's ruling. That men of sullkient importance
weI'!! able 10 evade rht b101S IIIld makct Ibeir iIIegitimare children hl:in is sho~'II by th~ CI5t! of
the famous teaclu:t of rhetoric, Libanius of Antioch [Evans Grubbs 1m, 300-1; Arjla\'a
or
1996,213-17}.
TIu: "'giuariYl! Iluctllllltioo suggtSrs thar th<e laws caused con«'I'n IIntl confusion md that
e1I1pttOrS Mel to clarify the sitwtion of illegitimate chiklrm repeatc:dly (often in response to a
law from the mlltr half of rhe Empire). We koow from a law of thl: t'oISRm emperor Man.ian
(rei,ned 45()...4571 <hat anmhc:r asPCCI of Constantine', law caused confusilln: ... ho eu.cdy
weft' the -humble and despicable" (11,1 hRmilil tv ,,";,:tI4) women nentioned in the law?,·1
lol:an:ian's law was intended to clarify lhe StlU:US of such a woman. His Jaw "",eals an intet
nting misturt of ideas about the blamelessness of povetry (00 doubt inflllC'l1Ced by Christian
teaChinp) and Vl:ry tradition:ll. pM-Christian attitudes :aOOu1 lhe imporunce of free: bint.
(illplli1dS), which was $till considered the mark of a morally upright and SIlCially acceptable
person. The preamble to his 10."" sU88e5IS that acmal ClaStS had (ome 10 COUtt involving fMR
of IlInk wishin, to marry fft'thom but poor women.
Novel 4 of Marcian, " April, 454 Emperors Valentinian and Marcian Augusti [0 Palladius, praerorian prefect: The most sacrco:d laws, which restrict the lives of all. ought to be under
stood by all, so that everyone, once theit (the laws') precepts have been
learned more clearly, shall decline forbidden things and follow those which
are permitted. But if, indeed, anything mther obscure has by chance been
PUt in these same laws. it is necessary that it be made manifest by imperial
interpretation, so thac the ambiguiry of every sanCtion is removed and the
alternating lawsuits of litigants cannor di~rt uncermincies in the law to
their own side, and also lawyers in such affairs and judses of tribunals.
following an open pronouncement of the laws. do not toss abom among
uncemin rulings with inconclusive and WIIvering opinions.... (1) Your
Magnificence. always eager to hold to the correct path of justice in
concluding all lawsuits. has consultco:d Our Oemency regarding that .part of
the Constantinian law, in which some ambiguity appears to exist. For when
he decreed that it was not permittco:d to a senator, a pnftt:liIIiHlHI. a duovir, a
168
municipal flamen. or a provincial priest to have as wife a slave woman, '"
[1be law n:peats tilt list
of women in Cod. Theod. 4.6.3. ornilted here] .'
... he addco:d to the forbidden and prohibitco:d persons also a "humble and
despicable" (bumiltl1l flhiecttlmqnt) person. Your Highness observed that great
doubt arose subsequently in legal judgments concerning martiage about
whether these words also ought to refer to poor, freeborn. women and
(whether) the rule of the law excludes them from marriage with senators.
May this wickedness be far removco:d from out times. that it should be
believed that poverty has been given lIS a dishonor to anyone, since often
moderate resources have prepared much glory for many, and a rather small
property I'I\cing has been a testimony to self-control! Who would think that
Constantine of renowned memory. \vhen he forbade senators to contaminate
their marriage couches with the dress of polluted women, had put the gifts
of fortune above narural good qualities and had put riches, which the vieissi
rudes of chance are as able to remove as to give. above free birth, which
cannot be taken away once it has been inborn?
(2) But that man, who most lovco:d the honorable and was a most holy
censor of chal"oIcter. judged those women to be "humble and despicable"
persons and considered them unworthy of martiage with senators, whom
either the shameful stain of birth or a life given over to disgraceful occupa
tions has pollured with sordid marks of dishonor and hIlS infected either
through the turpitude of origin or the indecency of profession, Therefore.
removing all the doubt which had been thrown into the minds of certain
people.... we judge that a "humble and despicable" woman is nor at all to
be understood as she who, though poor. has ne~rtheless been born from
freebom parenu. But we decree that senarors and those endowco:d with
cemin exalted ranks are permitted to join to themselves in marriage women
born from freeborn parenrs. though poor, and that there is no distinction
among freeborn women on the basis of wealth or more opulent fortUne.
(3) But we think that "humble and despicable" persons are only those
women, who, specifico:d and expressly srated, were nor allowed by the afore
mentionco:d law to be joined in marriage with senators. that is:
[tilt liS( of womm in Cud. Thnlll. 4.6 ..i is hl:n: n.'f't'4uod, with d., elOCc:pcion of "humblt
lind despicable"]
... Which we believe beyond a doubt that Constantine of divine memory
himself intended in that law which he promulgated and therefore he forbade
marriages of rhis kind. lest senators be joined. not so much in the marriages
as in the vices of these women whom we ha~ enumeratco:d.
(4) Also. whatever other things have been laid down in sacred constitu
tions by Consrantine of renowned memory or by orher divine emperors after
him concerning natural children and their mothers, and also about freeborn
concubines and about rhose who came togerher in marriage after a wife's
death.68 we order to be preserved inviolably. Moreover (they should be
preservco:d) so thar those laws which have been passed later should precede in
169
authority laws promulgam:J earlier and whichever of them is later in time
should be more valid in law, dearest and most loving parent PalIadius.
Therefote, )'OW' illustrious and magnificent authority shall see to it
that this law of Our Serenity, which will endure perpetually in every age,
comes to tbe notice of all. after edictS have been posm:J in the customary
their children also born from the same women either before or after marriage
being considered legitimate. (And) we order that tbose men who before this
law have begotten children of either sex in chosen concubinage with free
born women, with no marriage intervening. who of course do not have a
wife (NXOI'), and have no legitimate offspring begotten from legal marriage. if
they wished to take as wives those women who had previously been their
concubines. they are able to conuact: legitimate marriage with freeborn
women of this kind, as it was said (in Constantine's law). As well, the chil.
dren of both sexes born in the earlier concubinage from the same women, as
soon as marriage with their mothers has been celebrated. can become their
(the men's) own and be in their legal power, along with those. who after
wards have been begotten from the same marriage, or by themselves, if no
other is larer born. And. if their fathers are willing. they can also inherit in
full by will or seek their paternal inheritance from an intestate (father) ..• n
<,)
way.
Given at Constantinople on the dak before the Nones of April in the
consulship of Aetius and StUdius. VI( cr.
2 Concnbines
Consunrine's Jaw of B6 [Cod. Theod. 4.6.3, above] not only (OI"boJde I1IIIrriage belwem men
of rank and dte women enummued in the law, but also penaliud dJOSe men who lival in
concubinage with $l.II;b _ . if they tried to benefit Eheir corocubines or (more usually)
thom iIIegitima.tt: children. In dasslcn1 Jaw gifts to • concubine were valid (whr:rtIIS those EO It
wife were not, which duturbed Ehe juriSt Ulpian; see Pan 1.8.5), and a I1IIIR could leaVII:
bequestS to his concubine and iIlellitiollue children in his wiu. As we have seen above,
ConscanEine's regulations concerninll Ehe inheritance rightS of i11l'.'11iEinwe children of high.
nudcin& men _
modifu:d by laEet emperors. who allowed such children to r~CI'.'h"l'.' ar lm.st
pm; of Eheir timer's pnIpI'.'rty.
WI'.' know of twQ Other Constanrinian laws 011 concubines, neither pn:K'rved in thto
TIMNHsi.ttll C_ rhough paqibly Ihey were pm; of the now-missing Cod. Theod. 4.6.1 and :2
[Evans Grubbs 199~. 294-300). One is known only from a sinllh: sentence in Ehe Codt of
)lIltiltimr.
Cod. Just. ;.26.1, 14 June. 326
Emperor Constantine AugustUS to the People:
No one shall be granted liberty to keep a concubine in his horne while he
is married.
POSted on the eighteenth day before the Kalends of July in the seventh
consulship of Constantine and the consulship of the Caesar.
A similat ,catmlent appealS in thto Snli. PI",li, probdbly redacted It about tbco _
cime.70 Both Rlpn:K'nt the classKal RomlUllegai po$ifion: 1WIIatin1l4l1ll 'Iv.I$ In alrernati"",. not
a supplement. to illS/1I111 _rilllllll;1I1II [TreSiiari 1981a, 177-8]. Not all inhabitanrs of the
Empire would necessarily have adopted the Roman vicw, however, $0 a restatement in law
may have _eel lIII:CI'.'SSary.7t Cod, JUSt. 5.26.1 dOC!$ appear EO leave thto dOOl' open for a
married IIWI til keep a concubine somewhere besides his home. Opiniom ftt)' lIS to whtothtt
Consutncine intended to prohibit married men (I"0I0 havill8 concubines alroaerhl!f (8caurnmp
1990. 172-5).
.
11lc orher Conmantinian ruling 011 concubines. mentioned by Marcian [Nowl 4.4. above),
was revived in II law of rhe easterll empmw :leon:
Cod. Just. 5.27.5, 20 February, 477 It is suiking that the tmph:lsis in Zmo's law, and presumably in Constantine's also, is on
freeborn (jllltllllM) concubines, (hose of Bond enou,h birth riw they -..Id be expected to
much mon: usual;
enter I1IIIrri~ nubcor than ._1I1Ji1lillINJ. freedwomen cuncubines (who _
~t P2rr I.B.5) and rheir offspring are mil l1'~ by thto hlw. Tbou.llh Zcno's opeoill8 sentence
implies thar ConKantine's law 'Iv.I$ morilllltOO by Christian corn:ems. it was in fact a very
explicit expression of tnadi~ionaJ RlIITlan prejudices lbout Ihe moral and social value of free
birth. It was al$O .hto first mention in Roman law of fl'.'tlOllCtiVII: legitimation IIf illegitimate
children pte E\'IU\$ GNbbs 199:1, 297, with Rlfert'llCl:5 thtre].
In late antiquity, the mosr common kind of concubinage was apparendy that of a young
man, nor yer rearIy to millet a socially acceptable: marriage, with a woman of lower SEams. The
young Au,ustine, whose father was apparently it town CO\lllCillor (d«urillll or lliria/il), is lhe
most farno\l$ellllmple {Arja...a 1996. 205-10; Evans GNbbs 1
3txl-l}. In his CIUJ/asi.""
written at c.rhage in the final ~ of thto fOurth century. Augusrilll'.', now bishop of Hippo,
IooIcecI back 00 his life twO decades eadier.7.1 As a young man. he had begun a mono,gamous
madonship with a wom:m wirh whom he li"OO for ;almost r.rtl'.'l'.'ll years and by whom he Iwl a
$1111, Adeodams (_ill8 given by Godw). WI'.' know norhinJ of his concubine apart from
what hto tells us in (hto ClIII/tUiom; hto _ r t:VII:lI mentions her name (probably our of considera.
tion for her reputarion). Given the fan (hat she was ;a concubine rather than I wife, and that
AU8USEine did not cansider marrying her, _ ClUl _me duu she was of much lower StatUS
than he WIS, ped1aps it former s1awe. or Ohe of the -homble and despicable- women
condemned by Constantine in his hlw of .B6.
m.
W
Augustine, COIifessions IY.2 and Vl.15
ConfessiDns IV.2: ... In those years I had one woman. not one known in
that marriage (amuigiliTl/) which is called legitimate. but one whom II
wandering ardor. bereft of good sense, had sought out - only one. however.
to whose bed I remained faithful. In regard to whom, I could experience by
my own example what a disrance there is between the moderation of the
conjugal agreement, which would have been entered into for the sake of
Bmperor Zeno Augustus to Sebastianus, praetorian prefect: We renew the most sacred constitution of the divine Constantine, who
fortified the Roman Bmpire by the venerable faith of the Christians,
concerning freeborn concubines being taken as wives, and indeed (about)
begetting children, and [he pact of lustful love. where offspring are born
even against one's wish - though once bom. they compel themselves to be
cherished.
170
171
As Augustine prosn:ucd on die careet track which would probably h:lvc led him to the
imperial adminiltl'arion had he IlOf turned to tiMe church instnd, he bepn to ftel the need to
make a IepI maniase that WO\IId brinll him wealth lind social advantallcs. His mother.
Monnica. was the drivin8 force behind his ma.rria~ arfllnsetnt.1lu. sina: AUI,'U$tine's father
had died many yean earlier [Shaw 1987a. 341. A betrothal a8_nt was made. but
AU,IIuscine', fl:1llCl!c was Still tWO years below die legal • of mam. (which was t_Ive. as
in cI_ic:al law). Augustine (who was around thirty at tbis time) dismissed bil concubine of
lJIIU'Iy Jftl$. but found he could IlOf I'tmain celibate until hil fil.l\(c!e rtaChed mllrUlgtable
age:
because of her rank or her resources, whom he can take as a partner, he is an
adulterer in his mind, not with the woman whom he wishes to find, but
with that woman with whom he is sleeping in such a way that he does not
have marital union (11loritalt mumill1o) with her. Wherefore also she herself
(is an adulterer), if knowing this76 she willingly has intercourse shamefully
with a man with whom she does not have a wifely bond. But if she remains
faithful to his bed and, when he has taken a wife, she herself does not think
of marrying and she prepares to restrain herself from such aCtivity hence~
forth, I, indeed. would not perhaps dare easily to Cllil her an adulterer. But
who would say that she does not sin. when she knows that she has inter
course with a man, whose wife she is not? ...
ConfasiollS VI.IS: Meanwhile my sins were being multiplied, and
since she with whom I had been accustomed to sleep had been tom from my
side as an impediment to maniage, my· hean had been CUt and -wounded
wbm: it was clinging, and was drawing blood. And she had returned to
AfriCll, vowing to you74 that she would not know another man, and my
natUral son born from bet had been left with me. But I, unhappy and not
imitating the woman, (but) impatient of the delay; as I was going to receive
the one whom I sought after a two year period, since I was not a lover of
manillge but a slave of luse, I procured another woman, not. of course, a
wife, in order that the disease of my soul might be, so to speak, supported
lind prolonged, either unimpaired or strengthened, by a convoy of enduring
habit in the uxorial kingdom, Not was that wound of mine, which had been
made by the cuttin, off of my former (relationship), cured, but after very
fierce bumin, and grieving, it putrefied, and it hurt. as if colder. but more
desperate,
for Augustine. as for Roman bw [m: Chapet' 2. Parr I.A1. both marital in",nt and the
intention of having children are essential lOt marriage, though a 1;6:-101111 union which
KtCJ'U childrtn m:n if rhey were nor originally desired an -not absurdly" be: considered
marriag/:, But whereas in Roman Jaw Cincrtasingly so in la.!e antiquity., the _IUS of bach
p.mllC.'rs was an impomnt flIcror in whether or not I. union could be: considmd marti:ase. (ar
the matun: bishop Augustinc: it is not. The man who pull away a Imv-stafU$ concubine in
nnk. to -IT)' a WDmI\II of rank and wslth is an adulterer "in his mind- - thoush not in law.
'IS AU!;U$rint' ,....11 kllt'....
3 Fm IIItIl tllid 1101'(1 WOI1ItIl
Augustine. On the G«NI ofM4rriage V
Constantine's law prohibiti,. marri48e be:tween lIIt'n of bigh $taIUS and low_tus women
{Cod. Theod. 4.6.3. alxM!1 included sla,," among the women prohibited. Relationships
bet......_ slave and f_ had IIC'lI't:r been valid undtr Roman law, but late antiqlll: Jawmaken
felt thill had to he stated explicidy. Evidendy mlny inhabifllnu of the Empite. "en those of
high status, either did nor know that marriage with a slave _ impo5lible. or did nor care.
AllOfher law of Canstantine--_ aimed at town councillon (dKurions, called Qlrill/~ in
late Roman law) who abandoned their po$irions to live on allOfher landowner's estate and
cohabit with _ of 1m slaYCI. 'The law was moaed at Aquilfia in norchlr.dy.11 'The undct
1yi,. WIle is [he abdication ofhis municipal responsibilities by the flInlt/is,:I topic (n:qw:ndy
IIddressed in late Roman law [EVlII'Is Grubbs 1995.278-80).
It is often also asked, when a male and female - he not being a husband nor
she being the wife of another man - are joined with each other, not for the
sake of begetting children, but for the sake only of sleeping rogether on
account of lack of self*concrol, by tbat in-between sort of fidelity, so that he
does not do this with another woman nor she with another man - whether
this should be called marriage (IIlJpti4d. And indeed it is able perhaps not
absurdly to be called marriage (toII1IbiJlm). if it (the union) has been agreeable
to them up to the death ofone of them, and though they were not joined for
this reason, nevertheless they have not avoided the begetting of offspring, in
such a way tbat either they did not want childl'eD to be bom ro them or they
even took action by some evil deed so that they were not born,
But if either one or the other of these things is lacking, I do noc see how
we can call this marriage. And indeed if the man has caken some woman for
himself for a time, until he should find another woman (who is) worthy
Cod. Theod. 12.1.6. I July, 318
Emperor Constantine Augustus to Patroclus:
Though it seems unworthy for men who do not possess any tank to
descend to sordid marriages (ttJRlJbi4) with slave women, it is nevertheless
not at all prohibited by the laws. But marriage (ttJ"ulJillm) with servile
persons is not possible and from a union (ttJlllllhertlillm) of this type slaves are
bom.18 Therefore we order that decurions are not to flee. led by lust, to the
laps of very powerful houses. Por if a decurion secretly. without the knowl~
edge of overseers or stewards,79 has been joined to someone else's slave. we
order that the woman be driven into the mines by a judge's sentence. and
rhat the decurion himself be deported to an island. His movable property
and urban slaves are to be confiscared,80 but his estates and rural slaves are
to be handed over to the city whose (tIriolil he has been, if he has been freed
172
173
Augllltine'$ decision to ",jeer his concubine. the mother of his son, for an aITlIQlled
marriase with a girl one-t:hird 1m aae. call1ed him nor only pain I1t the 1011 of a sexual panner.
but dwnf: at his own selfish and $inml behavior. A few yean; after he wmre the ClJ1Ifaliolu. he
refemd obIiql.'Ully to his collCllbine in his marise, On tbt GooJ ofM..~{tk - . c4uil'ga/i).1'
PROHIBITED AND NON-LEG,U UNIONS
from paternal power and has no children or parents or even reiariv(."'S. who are
called to succeed him according to the rule ofthc laws....1I1
Ambrose. 01/ Abl'aham 1.3.l9 (excerpt)
Therefore let men learn not to despise (legitimate) marriages. or to join to
themselves women who are not their equals. in order that they not bring up
children of the sort that they cannot have as heirs. So that. if they are not
moved by any consideration of decency (pm/ur). they may be eager for a
worthy marriage at least by the thought of passing on their inheritance.
Lan: Roman mlpmll'.!. also reireran,d rhe: clauical mit rhal children of sla\'t'WOI'fIc:n Wf.'n:
sla\'C'S. eo"I:n if their "'IOOr _
rhe:ir mothtr's master. Constantine: denicJ d);ll children of a
nmm:r by his slayt could claim rhe:1r lib",ry. even if the)' had lived in de: f••:tn (nwom rnr
many )'''''15;111
Cod. Theod. 4.8.7, 28 Februal')', 331
... For it is necessary by common law (iNS aJIIlnl/lllt) thac a child follow its
mother's condition. so that, even if a slave woman should ascend· the bed of
her master, she shall bring forth to her master the offspring not of free
people, but of slaves,
The: Ie,., situation of a mans illegitimate children b)' his slavewoman 5tt:ms [(l ha"f!
becalM con.fUsed with (he situation of freebom children from othc:r iIIq.>al unions. such as
rhosr becwern IN!n of nank lind the women lisred in Consmntinr's 111'111' of 3311 (which hlld
included both slave: and ffer women). This is su&llested b)' II western law of Valenrini..n 111.
which describes the: children of both rypcs unions as "narural:
or
Cod. Theod. 4.6.7, date missing (426m
Emperors Theodosius (II) and Valentinian (Ill) Augusti to Bassus, praetorian
prefect:
We order that the name of "natural" (children) be imposed on those who
were brought forth into the light by a legal joining without honorable cele
bration of matrimony. However, it is dear: from Jaw itself that slaves are
born from the womb of a slavewoman, though by fon:e of nature it is not
possible to take away the name of "natural" (children) even from them [chere
is a lacuna in the manuscript) ... Oearly. if natural (children) have been born
from a slavewoman and are not manumitted by their master, they are
counted among the slaves of the esrate ... 8;
or....
Valentinian's requirement that a marriage have C':Xu:rnal signs
lidity (either a celrbfll
tion Of' a writtefl docummt) is new in Roman law. which had nt'Yet be((II'e required
documcntWon (Chapu:t 2, Pm I-"J. In another pon of (probably) the same law, Valentini4n
made an excrpdon lOr soldiers, to whom he fl\!nnitted "the free: capacit), of contr.lcting
marriage with freebom 'II'Omen without any solemnities of rnarria&e.,,11-1 The nrt<! for cnc:rnal
evidence of a ITUIttiage was tej«ttd by (he elI5trm I:IIIp«Ot ThcocIosius II in .128 (Cod.
Theod. 3.7.3, Olapter 2, Part II.C].JI'I
Late Roman laws on the unions of (fer men and slave womefl werr nOt simply abstr.lct
Statemefltl with Iinle basis in aca>:ll conditions; the:rr arr many references to such non
marital unions in contrmponary non-Iegal sourcrs. Ambrose. bishop of Milan, addressc:d
members his congnegation who were pn:poring fat baptism and warned them tim though
they W,," to imi(8te die Old Teament patriarch Abraham in his faithfulness to God. thl:,.
sbould IIIX imime his having Il child by his slavrwoman. Hagar.1I6
Ambrose Strt'UrS thllt such childrtn annoc be Jc.,itimate heits:
or
174
The Christian writrr Jtmm~. around the )'"ar -illl). describcJ men whose poverty sup~
Nly l'fewnlN them fmm mw-ryi~.I" He OOtes. however. that it was possible to obtain an
imrc:ria' rescript grantin, ntherwise ineligible w_n the right to marry. if a man was
willinB [0 ray filf it:
Jerome, Epistle 69.5 (excerpt)
We see many men decline the burden of wives on account of excessive
poverty, and have their own slavegirls instead of wives. and raise up children
conceived from them. [f by chance they have become rich and have eamed
the strJ((88 for them (their wives) from the Emperor. let them without delay
submit their neck to the Apostle89 and be forced, unwilling, to receive them
in the ranks of wives.
Jeromt's Sta!e~t was occasioned by a dispute tNt had arisen in the church: should a
man who had bet:n marric:d and widowc:d Morr his bap<ism. then married Qj,'Ilin aftrr
baptism. become a bishop. or wwld this go against thr apostolic rule {I nmothy 3J that ;a
church ltadc:r should br the husband nr only one w,_? Some thou,ht th" an,. previous
marriagr. rYen before baptism, would disqualify a man from breoming a c1crit. but dJat a
non-marilll relationship with a roncubinr would not. and Jt:mmI:' derided thc: hYJIIXris,. of
[his aujtudr. ~
About balr a century lartr. Pope Leo teCei-.ed an inquiry (rom RU5ticus. bishop of'
Narbonne:. on a relared issut'.'" Should a ctmc give his daughtrr in marriage to II man who
did oor have I legally married wife, bur did bavr a mationship with II woman by whom he:
had had childrtn? Like lawSivrn of the.: _em Empire, (he POfl\! saw (he dilTm:...er brtWl:t'll
marm~ and concubinage lIS detrrmiRed by rhc: status of the woman and by rhe pmrnce of
exttrl'l2l proof that the rrlationship was marriage, and Iikr Ambrose. he Sll'lS5ed heirship as
the: identifying feature of legirima(e children:
Leo the Great, Epistle 167.4-5 (excerpt)
(4) Not every woman joined to a man is the man's wife. because not every
son is his father's heir. Moreover, the legal contracts of marriage are between
freeborn people and equals; the Lord decided this very thing long before the
beginning of Roman law existed .... Therefore if a cleric of any place has
given his daughter in marriage to a man having a concubine. it should not
be received as if he gave her to a married man - unless by chance that
woman. having been made freeborn 9.:? and legally doweted, should appear to
have been made honorable by a publicly celebrated marriage ceremony.
(5) Since II married woman is one thing. a concubine is another, to throw
OUt II slavegirl from one's bed and receive a wife of undisputed free birth is
not a duplication of marriage. but the advance of honor (iIollt!Stas).
l75
!.eo's concepcion of nwrillll: as a public celmr:u.ion bmvl!l:n social eqwds whkh produces
leBirim:are hei". in CMttast ro the nOll-lnatiml union of a man with ;0 slaw.born WOIIl:ln,
probably d~w on fifth-century Roman law. paniculady rill: law of Vlllentinilin III (Cod.
Theod, 4.6.7. abo.-eJ lind ptrhaps also the _endy enacted law of MajoNn (Novel 6.9. in
Chapter 2. Part U.CJ.'1 Despite Ausustine's emphasis on life-long mon~ intent lIS rill:
defining characteristic of marriage. ecdesia$tical and secular IIbrhoriries both foond it t'".asier
to evaluate a union by the leBal StatuS of iu ",,"MO.
4 Fm 111111110/111111 slmlf Il1el1
All of the ..JJcm, laws involve fM men who had quasi-marital relationships widl slave ar
I_born women. What ~bout fM womllt'l who wished to "marry" s!;ave men? SLI(h a situadon
was much I1IOI'l! shockill8 tn till: Roman elite than that of a man who lived with a lowborn
woman. for it Wllt'lt .,ainst ttaditioo:d idt'"olS of 5lexual and social hierarchy (Evans Grubbs
19931.
In the earlier Empire, the 1D1111111{UtUllilll1lJ CI"lItIillIlllTli had regulated die smtus of free
wornen who lived with 10I'I'If:0tIe else's slav.: {Pan: I.B.21. and this (ontinut<! to he the cast in
the: fOurth cc:ntwy. Accotding m a law 0( 314:
Cod_ Theod. 4.12.1. I April,314 Emperor Constantine94 Augustus to Probus: If any free women have suffered violence either at the hands of slaves or
anyone else and have been joined asainst their will to men of servile Status.
they shall obtain vindication with suitable severity of the laws, (I) However,
ifany woman should be forgetful of her own honor (hol1tstll/), she shall lose her
liberty and her children shall be slaves of the master of.rhat man to whom she
joined herself in toH1lIDtmillm. [t is necessary that this law be observed for the
past also.
POSted on the Kalends of April in the consulship of Volusianus and
Annianus.
This law correctly uses tht term OINlllllmtilflll to dtICribe such a frl!l:-$Inc relationship.
Nore the idea that II fm: woman who ww1d cohabit with II slave has forgotten tlv: nbli,llltion5 of her reputation and staNS. Se"eral )'nrS Iattr, 11 law 0( Constantine IImeliDliltcd die condition of wumc:n who lived
with -fucal- (imptrially ownt<!) slaVts, but did not affeer women cohabitins with tht slaves
of priYllte (non-i mptrial) ownl:l'$:
Cod. Theod. 4.12.3, 31 January. 320
Emperor Consrantine Augustus to the People:
Since ancient law compels freeborn women joined in tolltlliJemium with
fiscal slaves to a boiling-down of their birth-starus,95 with no pardon
granted on the basis of ignorance or age, ir is decided that the bonds of such
unions are to be avoided. But if a freeborn woman, either in ignorance or
even willingly, has COme together with a fiscal slave, (it is decided) that she
suffer no loss of her freeborn Status. However, the offspring, who are born
from a fISCal slave father and II freeborn mother. are to hold the middle lost,
176
PROHIBITED AND NON.LEGAL UNIONS
so that they, as children ofslave men and illegitimate (spuril) children of free
women, shall be Latins who. though they are released from the fate of
slavery, nevertheless will be bound by II patron's privilege.96
[1bI: feS( 0( tht bw, omlrtt<! here, ~ys it don nil< apply to women who liYe wich s1"vn
belOll8inJ tl> municipalities.]
Given at Serdicll on the second day before the Kalends of February in the
seventh consulship of Constantine Augustus and the consulship of Cons
tantiusY7
FIv!: nther laws lin: found under lhe title ,J _,,,-'fllm CllllllliallllllJ in the Thi:!tJosilt"
CDJt. (tlur of which dc:al with the requirement that I wom:m cobabilin, with another's slave
was In he officially
three
befure she could be enslaved.9!I The fifth law i5 of
inkre$( Ii.. lhe: mllnal judsrm:nt it passes 011 a fn:e WOOlllll who chooses to "marry" a sla'Ye:
"warn,"'"
ci_,.
Cod. Theod. 4.12.6,4 April, 366(?) Emperors Valentinian, Valens. and Grntian Augusti to Secundus, praetorian prefe«: If desire has mon: value to a lustful woman than liberty, she has become a
slavewoman not by war, not by payment, but by marriage (ro1llIbittm). so that
her children shall lie under the yoke of slavery. For it is dear that she. who
regretted being free. wanted to be a slavewoman.
Given at Trier!l'.l on the day before the Nones of April in the consulship of
Gratian. II./', Wiland Oagalaifus.
Another law 0( the: same pt:riod. IiIlJDd 1I(t( in rill: TIN""";",, C.J, but in a private collec
tion 0( laws culled «he: "Consultation of a cemin ancient JuriSt" (C_llotl;" V~I Cllillsd.J.
IRr;'(fIlIlRlli), II" sU.Il.!lll5ts lhat some freeborn women may ha~ "married" sIa'Ye mIIt'1 when
below twenty-fiv" (the ase 0( majnril)') and then tried w n:pin dteir rreedom later:
IX.7. 19 July. 365 Emperors Valentinian and Valens Augusd to Felix, C'llllSIIlaris ofMaa:donia: (Among other matters and at the p1are)102 If formerly freeborn (ingmllae)
women have submitted themselves to servile C'IIIItRbentia, and now, scorning
the master of (their) younger age,1 0 3 try to Ree the yoke of slavery, your
Gravity shall impose the necessity of undergoing slavery on those who did
not flee a servile statUS immediately at the very beginning of the union.
Given at Milan on the fourteenth day before the Kalends of August in the
consulship of the emperors themselves. 1114
C011SlIllntiD Vel, ClliIlSD.1IITiSl:.
By the n:tgn uf Valtm and Valtncinian. tlv: sam'tions of the $.f. C/u"t/illIlJlTII were being
dpJIlicd tD fm: wumrn who married fISCal slaws workin, in the imperial weaving mills and
mints. lII\ Clearly the law 5till md lhe S:IIM practical purpose as it did when it was introduced
in the mld·first Ctntllry: to emu~ II supply Df imperial slaves by requiring that the illeaiti.
mate children of impc:rial $Ia_ and fref: women followcd their father's smus rather than
the-ir moth"r's, contra.,' to the usual 1U1~ [Part I.B.2]. But late Rnman Ill"" &:une! the
177
PROHIBiTED AND NON-LEGAL UNIONS
situation in moral teems: fn:cham women who c.ntcr q_i-mariul unions with slaves lire led
w do 50 by lust and disl'I:prd for Ehrir honor, and so dtmve condemnation.
Clasical Roman law and SOCiety had ;also frowned upon womrn who (n:cd their slaves in
on:I/:r ro marty them {Pm I.B.~]. And a woman of respI!Ctllble $tIIl\IS who had II sexual rela
tionship wiEh II sbMt without fn:cing and marrying him could have bet:n prosecuted und....
the. AUBlIItaIllaw on adultery and illicit su (uupl'JIIII).11III But not until the. fourth century did
Roman law explicitly address the situation of II rn:c woman who lived in a quasi-marital
union with her own slave {see Evans GNbbs 1993, 1995, 27~11:
seventh consulship of Constantine Augustus and the consulship of
Constantius Caesar. II ~
Cod. Theod. 9.9.1. 29 May, 326 or 329
Emperor Constantine Augustus to the People:
If any woman is discovered to have dealings in secret with (her) slave, she
shall undergo a capical penalty, t07 and the worthless scoundrel 108 is to be
lutnded over to the flames. All shall lutve chi! opportunity co denounce che
public crime, all shall have the power to announce it co che authorities. even
a slave shall have the licence to bring information, who will be given liberty
once the crime is proven - though a penalty threatens for a false accusation.
(1) A woman married (1I0pla) before chis law shall be separated from such
a union and, deprived noe only of her home, but even of the community of
the province, she shaU lament the absence of her exiled 10ver.l09
(2) Also the children, whom she had from this union, slutU remain in bare
freedom, stripped of all marks of rank, nor will they receive anything from
the woman's property, either through themselves or through an inrermediary
under any tide of her will.
(3) But intestate succession to che woman's property shall be granced [0
het children, if chey are legitimate, I 10 or ro her nexr-of.kin and cognates, or
to tlutc person whom the judgment of the law admits, so that also anything
which tlute man. who was once her lover. and the children conceived from
him appear by some chance to have held in their own possession. is to be
joined with the woman's property and claimed by the afore-mentioned heirs.
(4) All these things should be observed in this way even if the woman or
her beloved died before (this) law, since even one author of this offense
incucs judgment,
(5) But if both parties have already died, we spare the offspring, so that
they not be weighed down by the crimes of their deceased parents. They
slutU be (acknowledged as) her children. they shall be preferred to (her)
brothers, III and co her nexc-of-kin and cognates; they shall be heirs to the
remaining inheritance.
(6) Those who commit chis crime after (this) law we punish with death.
Moreover, those who, having been separated according to the law, have
secretly come together again renewing the forbidden union, will undergo a
similar penalty, convicted on the evidence of slaves or che office of the 1/1«0
lal",.' 12 or even the informadon of their next-of-kin,
Given at Serdica on the fourth day before the Kalends of June in the
178
Whe:reas CcmsW'ltino:'s law on Eh" unions of hi,b-nmking metn with l!)Wham women
unltouhc:d II spta: 0( imperinl I"gisilirion on the subject fM decades ro come, chc:R' are no
furthe.r rer..,relll.1.'$ 10 the. :subject of Cod. TheIXl. 1M'. I fM almost 150 yean. It may not have
hcltn tnforced. and lheft may ha\'I1 hem few women of SlatuS and wealth who wanred ro
"marry" Ihc.ir own slaYCS. But in 468. the western empmH" Andwmius (reigned 467-12)
recti..w a JlC"Cition from an orhe.rwisc. unkl'K>Wn woman named Julia, who nidenrly fe:tftd
that hc:t mtUrillb't' EO her fn:cdman violared Coastantino:'s law. It is ~ unlikely dw: Julia
would have apJ>fOII("hc:d the: l'lTlptror 'l":mt.1neously about the StatuS of her marriage; itS
~Iidiry must ha~ ~p questioned, and she. mil)' han' heen appelliins II (haIJ;e already
brought _gainsl h.....
Novel I of Anthemius, 21 February, 468
Emperors Leo and Anthemius to Lupertianus, praetorian prefect:
(1"h., opming Rnrences. omitted hc.re. SERB the. nc.cd for Ihe emperor w guide his
subjecls well. in order tn have a Oourishil)g and rnruquil state.]
... A certain Julia pours our her prayers at our altars, adding tlutt
marriage has befallen her with a man who indeed was a slave of her house
hold, but who deserved liberty because of the nobleness of his chatacter, and
she begs our divine majesty that she not be harmed by the faCt that the
venerable law of Constantine. with the Strictest rigor, does not allow a
mistress 'to be inflamed by the embraces of her own slaves. Indeed. she
thinks that in her own case it is unfitting to deliberate about those things
decided concerning unions with slaves, since she herself did not marry a
slave, but a freedman. In particular. (she says) that her own marriage cannot
come into blame, because it is clear {that no law has been made] about
prohibiting associations (amsmia) with freedmen, [for] whatever no law has
previously forbidden is nevercheless considered [no evil].! '4
( I) Therefore OUf Serenity has found a double cause for deciding upon
cases of this kind, so tlutt confirmation not be taken away from those who
are in doubt about (a union) undertaken, as it were, in error, and so that
what has been determined satisfacrorily and honorably be preserved from
now on without any ambiguity. Therefore, first we decree by this edict, that
marriages (matrilnfJ1lu,). if similar marriages (cfJ1Iillgia) are proven to have
been begun up to the second consulship of Our Diviniry, shall not lack legal
validity, buc may rejoice also that this munificence of our authority has
looked favorably on their own security, Thus, if there are any women who,
because of the nobility of their birth, perhaps fear anything from an associa
tion (CfJIIIOrtilll1/) of this sort. they may throwaway the empty weight of their
unreasonable fear, nor shall they be afraid thac they have done illicitly, as it
were. what no laws up to now dearly forbade. They appear thus to have
contracted legitimate marriage (ioItat IIN/lt;lIe) with their freedman so that
the children born and to be born from them shall undergo no inquity about
the union of their parenrs at any time, but slulll receive the inheritance of
179
PROHIBITBD AND NON·LEGAL UNIONS
their mother and father by the custom of the laws. Also, those between
whom a society of this SOrt has been contracted shall themselves not lose the
liberty of making a will among themselves or of succeeding ro each other
according to the form of the law, nOr shall they, because of their marriase• be
thought to differ in any way from others about whom the decrees of the law
prescribed nothing before this sanction of Our Divinity .. , [rill: last sentence i$
C Forced marriages
ht:re omitted)
(2) Therefore, wishing to increase the public honor, from this consulship of Our Clemency onward, we forbid mistresses and patronesses to have the ability to enter marriages with their freedmen, in order that the famous nobility of outsr:anding families not become WOrthless by the foulness of an unworthy association and not lose, by the contracting of a most vile bond, that which it perhaps obtained by the splendor of senatorial excellence, or a family conspicuous only by the bare brightness of freeborn liberty be dimin ished by a rather shameless embtace in regard ro a woman. Undoubtedly [his will be with the proviso that, whatever the divine Censtantine decided with his venerable law about associations with slaves, shall be preserved with eternal firmness.
(3) But about those \Yomen. who henceforth have entered into vows with
their own freedmen, we decree that it shall be maintained by a law that will
endure forever that this forbidden union obtain not even the name of
marriage, but those execrably aspiring to illicit associations shall be Struck
by confiSCation of all their property and perpetual deportation. Those who
are born from an association of this SOrt shall be deprived not only of the
rights, but even the name, of children, 1I S and shall also be properly assigned
to a servile status, SO that our fisc shall claim ownership over them,
[The final $CIltenCeS of tilt' law, omitted here. r«oolinn culier laws about mt'fI's unions
with slaves and rn:edwomen And their ·natuml~ children (lICe I.B.I-3 lIbm-c) and lUi!;
Lupcrdanus to make: sure tilt' III... il; publicizl<d so that 1111 will k _ its com~ntli,l
Given at Rome on the tenth day before the KaJends of March in the
consulship of our lord Anthemius, Received at Rome on the Ides of March
in the same consulship,
Anche:mius' law thus relieved Julia (and any «he:r w _ in similar uniwu) of nnxie:()'
llbout W Itgitimacy of IIt'r mani.e and children, while at the: _
rim~ it ~'OIIfirmt:d and
indeed went beyond die: lener of Constantine's III.... by declaring dw in the: furure marri~JC'5
between pltrollllSSeS and their rreedl'l'M!n would be iusr as iIIesal ;as those between mistresSt'S
and slaves:. l1It' easkvemmt or the children of such a couple, who will bc:tome the propc:rty of
the: imperi:ll trnslll)'. is 11 ne... touch; evt:n Constantine bad not IlI1f'1e that far.
In the: sixth centul)', the Byzamiflt' empm>r Justinillll el\ll(ted II series of laws improvins
the position of iIIqitinwe children, so that ehc:y (QUid inhc:rit in tllt' @S&'II(C ol' any leliti
mltte heirs [Arja...... 1996. 216-17: Bcaucamp 1990. 199-201: Evans Grubbs 1995.
282-3).116 JuslinillO also rep!llled the ItJ111UU_SIII'RIII C//tIlJi<m_ [Cod. JUst. 7.24.1 and
Jwdnilln ''"tillllll 7,24.1).117 The union or a flloe woman with he:r own slave cuntinutd to hc:
punished. however. as shown by the inclusion of 110 abridled version of Consmminf's law in
Juninian's CtJc (Cod. JUSt. 9.11.1],
180
!;:
It is dt"~t from dM: laws on consent to marriage thar late l l _ cmpel'Ol'S considered the:
agremv:nt or the: /W'nforItiliils fn be _ i l l in making a Iqirim:m: marriage. Thus in addi·
tion to reiterating rhe neec:uit)' of patcmal mOselle IOc II valid marriage pact. thc:y also banned
unioM that were achiem by fora: or "tordon on the: part of die: prospective husband.
A Illw of Constantine was ~ against II .~ "1'IItCJY~ dim:dy opposed to
m:lrrilll.'eS il1'taIl,&ul by the: J'illeifdlllilins and betrothal pactS I\t'rIr.rec:R familia by
abduction (rfi/'lliJ). abo known as bride thd't [EYIIIIS Grubbs 1989; 199'. 18M31.
UlIIStAntines law harshly punished not OIlly tilt abductor himself, but also tilt' abducted Sid.
if sht- did not resist. lind even her parents. if rbey later \I('IIIiesced in die: mlll'l'iage. UIa: Cod.
Thtod. 35.12 or 422 [Chapter 2. PAn II.Bl, this law USUnlt'S that It younl woman doIi:II nllt
really know ....hat is ttood ror he:r. and if alloomJ to have her own choice, will make II roalilh
decision against her own best intt'RSrs.
man.
Cod. Theod. 9.24.1. 1 April,326 Emperor Constantine AugustuS to the People: If someone who has not previously made any agreement with a girl's
parents should s~ize her (when she is) unwilling or if he should lead her
llwny (when she is) willing - hoping for protection from the response of one
whom, on account of the frivolity and fickleness of her sex and judgment,
our ancesrors completely excluded from making legal complaints and from
giving testimony and from all judicial matters 1 18 the girl's response shall
be of ~o use to him according to the ancient law, but rather the girl herself
shall be made guilty by association in the crime.
(1) And since often the watchfulness of parentS is frustrated by the stories
and wicked persuasions of nurses, this punishment shall first of all threaten
them (the nurses). whose service is proven [0 have been hateful and whose
calk is proven ro have beeR bought: the opening of their mouth and throat,
which brought forth destructive encouragemenlS. shall be closed by the
swallowing of molten lead.
(2) And if voluntary assent is revealed in the virgin, she shall be struck
with the same severity as her abductor. Nor shall impunity be offeted to
thos~ girls who are abducted againSt their will, since they too could have
kept themselves at home till their marriage day and. if the doors were
broken down by the abductor's audacity, they could have sought help from
the neighbors with all their efforrs. But we impose a lighter penalty on these
girls, and order that only legal succession to their patentS is to be denied
them, (3) Moreover. if the abductor who has been proven guilty without
guilt should wish to appeal, he sholl certainly not be heard.
(4) But if any slave should bring forth into public the fact that the crime
of abduction (rap'Hs) has been neglected by deception or disregarded by an
agreement,ll? he shall be rewarded with Latin status, or if he already has
Latin statUS, he shall become a Roman citizen. l20 The parentS, for whom
vengeance was especially a concern, if they displayed forbearance and
repressed their sorrow,l:?1 shall be struck with deportation. (5) We order that
partners and accomplices of the abductor also be subjected to the same
181
<:."!
punishment without regacd to sex; and if among these attendantS anyone of
servile status should be caught. we order that person to be burned without
regard to sex.
Given at Aquileia on the Kalends of April in the consulship of Constantine AugustuS for the sixth time and ofConstantius Caesar. 122 ConswuiDe's Ia.... has shocked IIWIJ' modem c:ommellrawrs. particularly since it calls fOt'
the victim to sufFer tbe _
pmalty as her abduclOt. if she did not acrively rey to prnent the
..wuction. Whu this penalty actually was is not spedfled in the law as it is pn:scrved in tbe
T~i"" Cwk. Presumably it was dath. perhaps .. particularly shatnefullOrm of the death
penalty. such as beins thn:rwn to the beuu in the anma. This Sftmed too harSh to later
emperon. and • law of Coosmntine's son ConsWltius [Cod. Theod. 9.24.l. 349) n:dUCI:S the
sentcllCe to the -capital penalty- - death by decapimdon rather than _thins more painful
and humiliating (tbe penaltitl foe slaY1: accomplictl remained the same). However. it is
doubtfUl wbetberCY1:n this -milderw punishment was inDicted by iudstS to whom ..wu«ion
cases wert bwught - when, indeed. such cases were actually brought to coon. Man. often
they would have been bondled prtfttcly, which is what the law _nu to pmient. A third IlIw
[Cod. Thcod. 9.24.3. 374) urps that a case be brought as soon as abducrion has occumd.
and putS a smrute of limimtion of 6ft years on prosecution, after whi<;h time no one can IMke
an accusation or quesrion the IeSitirmq of rbe marriage or the children bom from it. m
Abducrion 'MIS nor tbe only means of forcing a marriase ag.ainst the will of a young
woman or her family. A I..... of 380 znacks a _
Nbde method of forcing rhe hand of a
/'<Iltr!d",ilins: prnsure brooJbt to bear by powerful officials. late antique emperol'S 'iOIm:
anxi_ '0 rrpress abwes of power by office-holders [Harries 1999. tip. 15}-71). and the
following law of Theodosius I penalizes offICials who use their wtiloriry to force allilQlct: with
local fo.rnil~. Marriaae between an imperial official (especially the provincial .!Iovernorl"nd a
_ n in the province in which be held office had betn forbiddm already in d~ earlier
Empire [Pan: 1.C.3J. Berrothal as_menu, however. were nor prohibired. and IMrri. ,ould
take place as soon as the official bid down his offICe. The following passage is put of a longer
law, o,her parrs of which also dealt with abuses of power by provincial .!I_nors and with
penalties for b=kins betrothals [see Cbaprer 2. Pan: II.C].124
Cod. Theod. 3.11.1.17 June. 380
Emperors Gratian. Valentinian (II). and 'I'heodosius Augusti to Neoterius,
praetorian prefect:
If anyone endowed with ordinary or any kind of power should use the
occasion of his power in regard to conulicting marriage when the (women)
themselves or their relatives 125 are unwilling. whether they are Pllpilltle ll6 or
virgins or widows in their fathers' home or widows who are legally indepen
dent, or finally of any kind whatever, and is revealed to exhibit or have
exhibited his favor in a threatening manner to those whose interestS are
being considered hereIn when they are unwillil\8. we decree that he is liable
to a fine of ten pounds ofgold, and, when he has left office, we forbid him to
, usurp the rank which he has reached,I28 To be sure, (we punish him) with
such a penalty so that, if he has been unwilling to obey the sanction of our
law in tegard to claiming that honor which he has used badly, he shall not be
allowed ever for twO years continpously to live in that province in which he
usurped this (honor) for himself.
182
:::
~
(l) Since, however, we understand that certain homes or certain relatives
must be additionally fortified against hidden malice, we order that whatever
man or ,woman has been assailed by hidden promises or threats by the offi
cial 129 for a marriage to which they scorn to give consenr, (then)
immediately artet filing an official complaint, they along with their house
and that of their family, shall cease to belong to his jurisdiCtion; the
defenders of each city and the public servants of the same offidal shall take
care of this. And indeed, if this will be a matter of the wickedness of an ordi
nary official, all the business of this household and all itS affiaits, either civil
or criminal, shall be in the competency of his vicar lJO for as long as the same
man will be in office. But if, however, the vicar or someone of similar
authority shall attempt violence in contraCting a marriage of this sort, in
tum the ordinary official shall be the intermediary. But if both will be
suspected, prorection of such homes shall belong especially to the illustrious
(praetOrian) prefecture, for as long as the same man shall be in office.
Given at Thessalonica on the fifteenth day before the Kalends ofJuly in
the fifth consulship of Gratian AugustUS and the first consulship of
Theodosius Augustus. I ) I
Dl:spitc BtlK!tal laws ap_ C'Xtorrin.!l llWTill!lCS by viole:nce or social pRUSure, it 'MIS
still possible for influential dti_ (cspctially _ors and imperial office-hokers) m m:ei'ft:
special permiss.ion from the emperor for uni_ which would CKherwise be invalid, II the
remarks of Ambrose [Put II.A] and Jerome (Put II.B.3) ~. (Thi$ was the case in the
earlier imperial period also; cf. 0.23.2.31.4 in Part tB for imperial indulgence ,tIIDted to
_tors for marri1se with II f~n.) To preY1:nt abuse of impetlallenerosity. II
law of 409 explicitly prohibited the seekin, of imperial indulgeoce for fwbidden marri.a,ges
and denied all validity to indul,eocl:S which wert thU$li'lt:n. Exception was madt for cousin
marriale, which \VIS Kill illegal in tbe wmem Empire [Put II.A], and for requtSts (or impe
rial help in reco¥erins ,,",- spoas.dkiM when a betrorhal hid been broken [Chalptec 2, Part
II.C).
_rem
Cod. Theod. 3.10.1. 23(?) January, 409
EmpetotS Honorius and Theodosius (II) Augusti to 'I'heodorus, praetorian
prefect:
Certain people, neglecting the rule of ancient law. think that a marriage
which they understand they do not deserve - should be requesred from us by
creeping up with their entreaties, pretending that they have the girl's
consent. For this reason we prohibit such a kind of bettothal by the decision
of the present law. Therefore. if anyone has obtained a marriage by surrepti
tious entreaties contrary to tbis decision, he shall not doubt that he will
undergo the loss of his property and the penalry of deportation and that,
having lost the right of legal marriage which he obtained by forbidden
usurpation, he shall not have legally recognized children by this means, nor
has he ever earned the efficacious accomplishment of a pardon, by the favor
of a requested indulgence or the emperor's special decision. m Those whom
the law of our father of triumphal memory did not forbid to supplicate for
183
PROHIBITED AND NON-lEGAL UNIONS
the union of cousins, that is, the fourth degree of relationship, on the model
of imperial indulgences are excepted (from this law). Also excepted are those
who desire to fulfill the betrottlal made by parenu concerning the marriage
of their tlaughters. or who ask that betrothal gifts. that is, those given in the
name of ""IMt, be returned to them with the quadruple penalryaccoNing to
the decision of the laws. To be sure. we prohibit that marriages be sought by
supplication from us which should fittingly be requested either from the
permission of the parents or from the adult girls or women themselves. On
the other hand, if II. lawsuit should arise when a marriage which had previ
ously been promised has (larer) been refused. we do not prohibit that we be
consulted according [0 law.
Given at Ravenna on the tenth day before the Kalends of FebruarylB in
the eighth consulship of our lord Honorius and the third consulship of our
lord 1beodO$ius.l~
1"beod. 9.7. ,,,//tgt#I )JiII/II de mlter;u). But unlike lIdulrccy accusations. which undt-r lao:
lllI
Roman In..... could be brouSht allainst a woman only by her husband or male relatives.
charges DllaillSt a Jc:wish-Christion ~"Ouple could be brousht by any (male) member of the
!'ublic.
Cod. Theod. 3.7.2 (= Cod. Theod. 9.7.5),14 March, 388
Emperors Valentinian (11). Theodosius (I) and Arcadius Augusti to
Cynegius. praerorian prefect:
No Jew may receive a Christian woman in martUlge (1f1tllrilllOllillm). nor
may a Christian man obtain marriage (amillginm) with a Jewish woman. For
if anyone has committed anything of this sort. he shall receive II criminal
charge for this offense after the manner of adultery, with freedom for
bringing an accusation opened up even to the voices of the public.
Given at Thessalonika on the day before the (des of March in the
second consulship of Theodosius Augustus and the consulship of Cynegius,
l~ (.139
D Other pITlhibi/ioD$
law Roman la..... also imroduced IICW prohibitions based on religion and tthnicity. A 111'111 of
Valtntinilul f prohibited Imrri. bet_n provincials (who IlI/OIIld ~ Roman citiU!llS) and
-barbarillns," praumably members of no.xiriWl peoples either ouujcJt. or within tile bound
aries of the Empire. It is likely thaf this law oriSinated as an impcrilll responK' to a t\'YOlr by a
Moorish chieftain, FitmU$, in the Non:h AfriclU'l ptovinct' of Maull:1llnia in the tatly 370$.
which WIIS eventUlllly put down by Count TIlcodasius, the Master of Horse (tlllillgiSltr <qll;IIIIII),
the offICial to whom the law is addressed [Sivan 1996). Irs inclusion in the TbtotIosia" Cork
sixty-Aft ynn later JlIVC! it a IIcnetai application that it did nor have orisinally. The law doe
not seem ever to have been IICti¥!!'ly enfill'l::ed.
TI1I.'"dosiu5 I also issued Dlaw condt:mnins Jewish m:uTiA.sc CUSlom (IRI) and la...... which
spKifically rneotioned poIY,,'I1my. TIle: possibilicy of II man's having more than one wife is
f,I\,IOO in rabbinit-..I Kl\lrCt$ (..Jilting to the imperial ptfiod). but the II(:tual fn:q~ncy of
polygamy IImong Jt'Ws in t~ Emrire is dtbatcd [Ilan 1m. 85-8}.loIil How"c:r. Theodosius
evidt-nrly thoullht Jewish polygamy _ rllOUsh of' a nve isme to merit lesislarion
prohibiting it. He may also haft been thi nkins of lither lU'lcient Jewish marria. customs.
such lIS rill: pn:ftrencr for dote-kin marriase. panicularly uncle-niKe [Ilan 199'. ,,-8). 01'
It,vime mill'riOl8e. t~ marriage of 1I man to his deceased wife's sistel'. ~ pmcricts had
III""","y been banned in laws of U!nstllntius [Cod. '!'Mod. 3.12.1 and 2) and "'lire to be asain
fomi..Jden in 396 [Cod. Thtnd. 3.1 BJ and 475 [Cod. JUSt. ~.5.8. all in Pan ItA).
Cod. Theod. 3.l<U. 28 May. 370 or 373
Cod. JUSt. 1.9.7, 30 December, 393
Emperors Valencinian and Valens Augusti to TheodO$ius, Mnster of Horse:
No provincial. whatever his tank or location, may have marriage with a
barbarian wife, nor shall a provincial woman be joined to any of the barbar
ians. u, But if anything suspicious or harmful is revealed in those
connections by marriage between provincials and barbarians which have
(already) existed from marriages of this sort, it shall be expiated by a capiral
penalry.
Given on the fifth day before the Kalends of June in the consulship of
Valentinian and Valens Augusti. l36
A law of TheodosiU$ J prohibited mania. bet_n Jews and Chrisd:ans. and called for
criminal cbasses to ~ laid asainst such mixed marrr..,es "After the mannc:r of adultery." Both
JeW$ and Christians disapprowcd of marriaJles berween their ac:lht:rcnu and members of' orhet
religious irou~ but mis law marks lhe first appearancc in impen.l 'leSislation of such a
marriage ban. )1 lIS elllCfmenr _ a result of Christilul influente$. ptfhaps on the parr of
Ambrose, • powerful biJhop of Milan. or of the law's rcdplent. Cynegius, D pious Christian.
{Linder ISl87. 178-81;SiVlU'll997)
11Ieodosius' law appears twice in the TJwJIIIi"" CcWt. oncc in • title "00 Marriages"
(Cod. Theod. 3.7. tit _iu). and again in the ride "on the Julil1l1 la..... of Adultery" (Cod.
184
Emperors Valentinian.1<I1 Theodosius (I) and Arcadius Augusti to Infantius.
Count of the east:
No one of the Jews will maintain his own custom in marital unions. nor
shall he obtain a marriage according to his own law. nor shall he enter into
different marriages at one time.
Given at Constantinople on the third day before the KaIends of January
in the thiN consulship of TheodO$ius Augustus and the consulship of
Abundantius.
Pinally, another law of • same period called for tM confisc:ation of any kind of Sifrs
made between rmnelS in prohibited uni(lflS. while making exceptions for those who married
i1lqa1ly because they wen:- deceived or were 100 )'OUns to realize what they were doing. This
is apparently II law or dte young western emperor Valeminion If. but it may well have been
inl1umced by t~ older and _
forceful Theodosius. with whom Valenrinian had $IIIIght
refUIl" in Coostlltltinople between 387-389. 1,12 It is addressed 10 the.- _
."../11 pril'Altmlm
(Count of ~ Privy Purso:). hecaU$l: its purpose is [0 ensure that Sifts ellchanscd in illegal
mamages cnd up in the imptfial _ucy.
185
PR.OHIBITED AND NON·LEGAL llNIONS
Cod. Just. 5.5.4,23 February, 392(?) Emperors Valentinian (11), Theodosius, and Arc.dius Augusti to Andromachus. Count of the Privy Purse (rolgiltlll m'NIII pril'dlarNm): Whocwer has by chance contracted marriage against the precepts of the
laws or against the mandateS and constitutions of the emperors, shall acquire
nothing from that marriage. whether it was donated ~fore marriage or
afterwards given in any wny. And we decree that all that which has
proceeded from the liberality of one (panner) towards the other is to be
vindicated by the imperial fisc as having been taken away from an unworthy
man or woman.
(1) Women as well as men, who either were deceived by a mOSt bitter
error - not by an affected or pretended (error) nor from a contemrtible cause
- or have fallen becau$e of the slipperiness of aBe. are excepted.
(2) However, it has been decided that these are thus removed from the
snares of our law only if. either once theif error has been discovered or when
they have arrived at adult years. they have broken off II. union of this SOrt
without any delll.Y.
Given on the seventh day before the KlI.lends of March. 1oi4
I"
4
DIVORCE AND ITS CONSEQUENCES ,
I Divorce in classical law
CIOISskal ROIn\! 11l1l.I :a very libtnll divurce polk" (OIS did Gn,eo-R.oman E pr; He: Parr Ill). By
the first etntury B.C.E.• womm whu were nm mnrric:d with III"IINJ (
ChaptC!r I. Parr II.B.l
had the right to divo<w dlcir hU$bands unilalerally. and eYl:Ilt 11)' the same "8ht 'lIr.IS
cnioyc:d by wOIIIl:n m;vried witb IIWIIIIS. Husbands had been
r ttl divo~ dteir wivtS
unibttrally. I'omicubrly for .wultrr)· oc ()(hi:r misbdJavior. ti
a very «:arly period trregsiari
1991a, 4.11-6. 4~9). Whelher unilatmd or b)' mUNall1! ment, diVOlU was an accepted
farl "f Ruman lift", and WII-( $\lbjtl:t to very ft:W Mtrictio
dl the fourth a,nrury CE. How
frt<l~t Jiwtl'tc actually was. and what percmta8e: of·
was initiated by wives rather
t!wl husbands, a.nt unansWt"fable qucstions. Indrrd,
• is little infortnation on Roma.n
divurce 111"1" fRlm the IfI8al sourcts. 6Cept fm Ii
re which focuses on the Roman elite in
tilt" bre Republic and early Empire: rrre&liari 199 1.
1111: tide in II", Dil:tJi on "Divorce and Re
tOIlS" (0.24.2. wilh "lc::-ven emrrits) is very
shon. ~i2Jly compared to the tirle: on mart" ~ (0.23.2. with siltry...:ight entries). l\lost of
the lesal sources We: have for I"" first thlet" ( turies come ro us filtered through the compila
tiems mad!:- in the sixth ~nrury under t Christian C!mperor Justinian (the Dig41 and rhe
CIkk sfjltJlillhlll) which omitted J>lISSI'
thar 1)0 lonllc:t had relevance or Il!lIai validiry. By
Jusrinian's day, dten: wen: cunsider.abl resrrictiOllS on lhe "8hl of either panner. especially
the wife. ro divorce: unilaterally, an on the right tl) remarry SOIlleOOe t:Ix. Thus we (lin
assUJIIC: thar divorce was much
• frequently discum:d by the classical iuri5ts than die"
Juslinianic carplIs ,uuesrs•I
'e/iuilitm and &"allIes 0/dit'OTtB
D.24.2.1 (Paulus)' Marriage is broken by divorce. death, captivity or
ry affecting one of the two panners.
odesdnus): It is said that there is »divorce" (dilIOTtiNII/)
between man d wife. but "rrplldiNIII" seems to be 5eOt to a fiancee. This
refers not a
rdly also [0 the person of a wife.
1 (Paulus); Be(ween ~divorce" and ~nplitlilllll" there is this
differen t that even II. future marriage (I.e. a betrothal) can be repudiated.
Howe r. a fiancee is not properly said to have divorced. beca.use it has been
call "divorce" from the fact that th05e who separate go off into diverging
di crions.
186
187

II Prohibited and non-marital unions in late antiquity

Transcription

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