18 Interdiction on Marriage between Christians and Jews (Valentinian II), Theodosius (with Arcadius)

14 March 388

This law, given on 14 March 388 at Salonica by Theodosius, in his name and in those of Valentinian II and Arcadius, was addressed to Cynegius, Praefectus Praetorio in the East.

Interdictions on mixed marriages and on sexual relations be­tween Jews and Christians are known in the ecclesiastical legisla­tion since the beginning of the fourth century, for example, in the decrees of the Council of Eliberti (Canons 16, 78). Our law rein­forces the canonical interdiction by defining such marriages as crimes committed against the State and liable, therefore, to be prosecuted by its organs. This represents an important innovation, probably due to Ambrosius’ personal influence, for he launched a virulent campaign against mixed marriages between Christians and non-Christians in 385.¹ This was not the first time, however, that the legislator imposed restrictions^ on marriage between different population groups. In 370 or 373, Valentinian I prohibited, under threat of capital punishment, marriages between inhabitants of the provinces and pagan “barbarians” (CTh 3:14:1). Vogler believes that our law was intended to prevent marriage ties between Jewish and Christian decurions, but there is nothing in the text to support such a limiting interpretation.

Codex Theodosianus, 3:7:2 (= Breviarium, 3:7:2), ed.

IMPPP. VALENT(INIANUS), THEOD(OSIUS) ET ARCAD(IUS) AAA. CYNEGIO* P(RAEFECTO) P(RAETORI)O

Ne quis Christianam mulierem* in matrimonio ludaeus accipiat, neque ludaeae Christianus coniugium sortiatur. Nam si quis aliquid huiusmodi

5 admiserit, adulterii* vicem commissi huius crimen obtinebit, libertate in accusandum publicis quoque vocibus relaxata.

DAT. PRID. ID. MART. THESSAL(ONICA) THEOD(OSIO) A. II ET CYNEGIO V. C. CONSS.*

INTERPRETATIO

io Legis huius severitate prohibetur, ut nec ludaeus Christianae matrimonio utatur, nec Christianus homo ludaeam uxorem* accipiat. Quod si aliqui contra vetitum se tali coniunctione miscuerint,* noverint se ea poena, qua adulteri damnantur, persequendos, et accusationem huius criminis non solum propinquis, sed etiam ad persequendum orn­is nibus esse permissam.

THE THREE EMPERORS AND AUGUSTI VALENTINIAN THEODOSIUS AND AR­CADIUS TO CYNEGIUS,² PRAEFECTUS PRAETORIO

No Jew shall take a Christian woman³ in marriage, neither shall a Christian marry a Jewess. Indeed, if anyone shall commit something of the kind, his crime shall be considered as an adultery,⁴ with the right to accuse allowed the general public.

GIVEN ON THE DAY BEFORE THE IDES OF MARCH AT SALONICA, IN THE CONSULATE OF THEODOSIUS AUGUSTUS FOR THE SECOND TIME AND OF CYNEGIUS THE MOST RENOWNED.⁵

COMMENTARY

It is prohibited by this law’s severity that a Jew shall have a Chris­tian woman in matrimony, and that a Christian man shall take a Jewish wife.⁶ If any persons shall intermingle in such an intercourse against our interdiction, let them know that they shall be punished by the punishments inflicted on those condemned for adultery, and that accusation of this crime is allowed not only to relatives but also to all.

Codex Theodosianus, 9:7:5 (= Breviarium, 9:4:4), ed.

IMPPP. VAL(ENTINI)ANUS, THEOD(OSIUS) ET ARCAD(IUS) AAA. CYNEGIO P(RAEFECTO) P(RAETORI)O

Ne quis Christianam mulierem in matrimonio ludaeus accipiat neque ludaeae Christianus coniugium sortiatur. Nam si quis aliquid huiusmodi 5 admiserit, adulterii vicem commissi huius crimen optinebit, libertate in accusandum publicis quoque vocibus relaxata.

DAT. PRID. ID. MAR. THESSAL(ONICAE) THEOD(OSIO) A. II ET CYNEGIO CONSS.

INTERPRETATIO

face="Times New Roman">io Nec ludaeus Christianam nec Christianus Judaeam ducat uxorem. Quod si fecerit, cuiuslibet accusatione velut in adulteros vindicetur.

COMMENTARY

No Jew shall take a Christian wife, neither shall a Christian take a Jewish wife. If he shall do it, he shall be punished on the accusation of anyone and as if for adultery.

Codex Justinianus, 1:9:6, ed. Krüger, p. 61

IMPPP. VALENTINIANUS THEODOSIUS ET ARCADIUS AAA. CYNEGIO PP. Ne quis Christianam mulierem in matrimonium ludaeus accipiat neque ludaeae Christianus coniugium sortiatur. Nam si quis aliquid huiusmodi admiserit, adulterii vicem commissi huius crimen obtinebit, libertate in s accusandum publicis quoque vocibus relaxata.

D. PRID. ID. MART. THESSALONICA THEODOSIO A. II ET CYNEGIO CONSS.

NOTES

1.      See Epistulae, 19, ed. F. du Frische and N.

2.      See above, No. 17. Cynegius did not live long enough to receive this law; he was buried in the church of All the Apostles at Constantinople on 19 March.

3.      The Christian woman was designated by the term ‘mulier’, which was more popular than the term ‘femina’, preferred by the educated and generally used to emphasize the difference between the male and the female genders. The mean­ing of ‘mulier’ as wife is secondary and later, and it originated in the lower classes. This was probably the reason why the Visigothic Commentary replaced ‘mulier’ by ‘uxor’. See J. N. Adams, “Latin Words for ‘Woman’ and ‘Wife’,” Glotta, L (1972), pp. 234-235.

4.      Roman legislation on adultery derived from the Lex Julia de adulteriis coercendis, passed by Augustus in 18 b.c. The law permitted, in certain circum­stances, the execution of an adulterous wife by her father and husband, and obliged them, if they did not make use of this right, to prefer charges against her before a public court. Divorce was obligatory under this law. If father and former husband did not file charges within two months after the divorce, any Roman citizen had the right to accuse her within four supplementary months. The penalties imposed on an adulterous wife by this law were exile (relegatio), confiscation of one half of her dowry and a third of her property. Her partner was punished by exile and confisca­tion of half of his property. Both became intestate, and the woman could not legally marry again. Capital punishment on adultery was introduced prior to Con­stantine’s death, for a law passed by this emperor (CTh 9:40:1, perhaps from 314) referred to it, though we do not know whether he introduced it himself.

5.      Given... renowned: 14 March 388. Theodosius departed for Salonica in the autumn of 387, and celebrated there his Decenalia on 19 January 388. He stayed there at least until 30 April 388. See Lippold, Cols. 875-876.

The title ‘vir clarissimus’ (v.c.), “The Most Renowned,” reserved originally to the senatorial order, after the beginning of the fourth century designated the chief magistrates of the Empire. They acquired two new titles after 372, ‘illustris’ and ‘spectabilis’. Magistrates entitled to the title of ‘clarissimus’ were assigned the fourth place in the hierarchy of order and status evolved in the early fifth century, below the ‘nobilissimi’, the ‘illustres’, and the ‘spectabiles’, but above the ‘perfectis­simi’ and the ‘egregii’. The long tradition of designating the hereditary senatorial nobility by the title ‘clarissimus’ resulted, however, in its continued use, alongside the new and higher titles which designated mainly status derived from office.

6.       Wife: see above, n. 3.

BIBLIOGRAPHY

Godefroy, I, pp. 320-321; III, p. 68; Juster, I, p. 169; II, pp. 47-48; Seeck, Regesten, p. 273; Browe, p. 123; S. Solazzi, “Le unioni di cristiani ed ebrei nelle leggi del Basso Impero,” Atti della R. Accademia di Scienze Morali e Politiche di Napoli, LIX (1939), pp. 164-170 = idem, Scritti di diritto romano, Naples 1963, pp. 49-54; A. Guarino, “Studi sull’incestum,” ZSSRG, RA, LXIII (1943), pp. 229­230; Seaver, p. 48; Noethlichs, p. 184; Lippold, PW, Suppi. XIII, 1973, s.v. Theo­dosius I, Cols. 876-877; Kaser, RPR, II, p. 164; Avi-Yonah, p. 214; Reichardt, pp. 32-33; Vogler, pp. 52, 63.