63 Alleviation of Sanctions on “Abominable Marriages" to the Jews of Tyre
Justinian
537
This law, given by Justinian, was addressed to Floras, Comes of the Private Property.
Its text has been preserved in Greek only, without the subscription, in Ms. L of the Collection of 168 Novels, and in an epitome by Theodoras Hermopolitanus in the sixth century. It was probably promulgated some two years after the promulgation of Novel 12 on 16 May 535, for it granted exemption from punishments due to be imposed after a delay of two years following the promulgation of that law.Novel 12 prohibited “abominable marriages,” that is marriages within the forbidden grades of kinship and polygamy, imposing confiscation of property and dowry on both husband and wife, expulsion from public office and banishment on members of the high orders, and corporal punishments on members of the low orders. It exempted from punishment couples who annulled their marriages prior to their detection, and allowed two years to annul such marriages and pay the treasury a fine equivalent to one quarter of the property before the harsher punishments were applied. Children born of such marriages could inherit from their parents in the absence of children born in legitimate marriages; a testator with children of both categories must leave a quarter of the inheritance to the treasury, three quarters of the rest to the legitimate heirs and one quarter of the rest to his children issued of “abominable marriages.”
Our law granted exemption from these punishments to two groups, the inhabitants of the village of Syndus and the Jews of Tyre. Each member of these communities would be able to maintain his marriage in future against a heavy payment, he would not be subjected to the statutory punishments, and his children were to be recognized as legitimate heirs.
Justinian emphasized that this privilege must be seen as an exceptional favour rather than as an abrogation of the original law.
Indeed, Novel 154—which was probably promulgated at about the same time—testified to the draconic vigour with which these prohibitions were applied in the provinces of Mesopotamia and Osroene.Novellae, No. 139, ed. Schöll & Kroll, pp. 700-701
ΣΥΓΧΩΡΗΣΙΣ ΠΟΙΝΗΣ ΠΕΡΙ ΤΩΝ ΑΘΕΜΙΤΩΝ ΓΑΜΩΝ
Έν όνόματι του δεσπότου ’Ιησού Χριστού τού θεού ήμών Αύτοκράτωρ Καίσαρ Φλάβιος ’Ιουστινιανός Φλώρω*
5
Άνήγαγεν ήμιν ή σή ένδοξότης τούς άπό Σινδύος* της κώμης καί τούς ’Εβραίους της Τυρίων γόμους άθεμίτους* συμβάλλοντας ύπό τήν θείαν ήμών γενέσθαι διάταξιν,* καί ούδέ τήν τετάρτην μοίραν τής αύτών διδόναι περιουσίας κατά τό περί τούτου προστεταγμένα, ίο ήδη δέ καί τινας έξ αύτών τρίτης ήλικίας* καθεστάναι καί παίδων εϊναι πατέρας, καί διά τούτο μετά δακρύων ίκετεύσαι μή άν άναγκασθήναι νΰν άποπέμψαι τάς γαμετάς, άλλα καί έχειν αύτάς καί τούς έξ αύτών γενομένους ή γενησομένους παΐδας διαδόχους αύτών καθεστάναι, καί μηδεμίαν αύτούς έντεΰθεν εύλαβείσθαι ποινήν.
15 Caputi
Θεσπίζομεν τοίνυν υπέρ τής τοιαύτης συγχωρήσεως αύτούς δούναι άνά δέκα λίτρας χρυσίου διά τάς έμπροσθεν είρημένας αίτιας, αύτοις δέ καί μόνον συγχωρηθήναι καί τήν μείζονα ποινήν, καί έχειν αύτούς καί τάς συνοικούσας καί τούς έκεϊθεν τεχθέντας τε καί τεχθησομένους ώς 20 είκός αύτοις $υους καί διαδόχους: ούκ εις παράδειγμα έτέρων τούτο παρ’ ήμών θεσπισθέν, άλλ’ είδότος έτέρου παντός, ώς εί τι τοιοΰτον αίτήσειε, πρός τφ μηδενός τυγχάνειν των αίτουμένων τήν τε ούσίαν άποβαλεΐ καί πρός γε τάς εις τό σώμα ποινάς ύποστάς έξορίαν οίκήσει διηνεκή. Ούδείς δέ παρενοχλήσει τούς παρ’ ήμών άξιωθέντας ίδικής 25 φιλοτιμίας ούδέ γυναίκας αύτών ή παίδας όντας ή έσομένους ή περιουσίας, ούτε έκ ψήφου τού σου δικαστηρίου ούτε καθ’ έτερον οίονδήποτε τρόπον.
Ή τοίνυν σή ένδοξότης τά παραστάντα ήμΐν καί διά τούδε τού θείου 30 δηλούμενα πραγματικού τίπου δύναμιν έχοντος καί ίδικής ήμών φιλοτιμίας έργφ καί πέρατι παραδούναι σπευσάτω.
EXEMPTION FROM PUNISHMENT FOR ABOMINABLE MARRIAGES
In the name of our Lord and God Jesus Christ, Emperor Caesar Flavius Justinian to Floras,1 (Comes of the Divine Private Properties)
(Preamble)
Your Excellency reported to us that the inhabitants of the village of Syndus2 and the Hebrews of Tyre who have contracted abominable marriages3 come under our Divine law,4 yet they do not give the fourth part of their property according to what was ordained in this matter, and some of them have come already to the third age5 and are fathers to children, and for this reason supplicated with tears that they shall not be forced now to send away their wives but that they shall keep them and have the children born to them—or those that shall be born—as their heirs, and that they shall not fear any punishment for this.
Chapter 1.
We ordain, therefore, that they shall give each ten gold pounds for this concession, on account of the above-mentioned reasons, and only they shall be exempted from the greater punishment, and keep their wives and the children born to them—or that probably shall be born in the future—as their sons and heirs.
We do not ordain this as an example to others, but let all know that if anyone ask for a similar grant, not only shall he receive none of his requests but he shall also lose his property, be subjected to corporal punishments and live in an everlasting banishment. Let no one harass, therefore, those found worthy of our special generosity, or their wives and children, or their property, now and in the future, on force of a verdict given by your court or in any other way.(Epilogue)
Your Excellency shall hasten, therefore, to put to execution and fulfillment these matters that seemed right to us and are promulgated in this Divine Pragmatic law, which has the power of our special generosity.
NOTES
1. Floras was Comes of the Divine Private Property in the years 531-536. See Stein, II, p. 433.
2. Syndus was a village mentioned by Evagrius as situated some twenty stades from Tyre. See 'Εκκλησιαστική ιστορία, YV:7, eds. H. Valesius & W. Reading, PG, LXXXVI, Col. 2713.
3. Abominable marriages: a clear definition of the term άθέμιτον γαμόν was given in Novel No. 12 from 535: ‘άθέμιτον καί έναντίον τη φύσει (ον ό νόμος incestöv τε καί nefariov καί damnatov καλεϊ)...
γάμον’, “abominable and contrary to nature marriage (which the law designates as incestuous, nefarious and damned).”New Roman">4. Law: reference to Novel No. 12, given in 16 May 535.
5. Third Age: the legislator distinguished four or five ages of human life, as we learn from CJ 1:52(53):1 issued in 531, which prohibited the entry of decurions and Cohortalins to ecclesiastical orders, with the exception of those who entered monastic life while still in the ages of νηπία and έφηβον; likewise from the preamble to Novel No. 72 from 538, which stated that the first two ages are those of the νέοι and έφηβοι, and both are defined as ages of minority. The first age should be seen, therefore, as the age of ‘pueritia’ (infantia) until seven (or fourteen) years, followed by ‘adulescentia’, till the age of fourteen or twenty-five years. The third age was considered the age of full adulthood, from the age of twenty-five or forty-nine. Several age schemes are documented in our sources, but it is clear that the “Third Age” stretched beyond minority and well before old age; men of this age were older than twenty-five yet capable of begetting children. See also E. Eyben, “Die Einteilung des menschlichen Lebens im römischen Altertum,” RhMus, N.F., CXVI (1979), pp. 150-190.
64 The Curial Duty of Jews and Heretics
BIBLIOGRAPHY
Stein, II, p. 206 n.4.