D Other prohibitions

Late Roman law also introduced new prohibitions based on religion and ethnicity. A law of Valentinian I prohibited marriage between provincials (who would be Roman citizens) and “barbarians,” presumably members of non-citizen peoples either outside or within the bound­aries of the Empire.

Cod. Theod. 3.14.1, 28 May, 370 or 373

Emperors Valentinian and Valens Augusti to Theodosius, Master of Horse:

No provincial, whatever his rank or location, may have marriage with a barbarian wife, nor shall a provincial woman be joined to any of the barbar­ians.¹³⁵ 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 capital penalty.

Given on the fifth day before the Kalends of June in the consulship of Valentinian and Valens Augusti.¹³⁶

A law of Theodosius I prohibited marriage between Jews and Christians, and called for criminal charges to be laid against such mixed marriages “after the manner of adultery.” Both Jews and Christians disapproved of marriages between their adherents and members of other religious groups, but this law marks the first appearance in imperial legislation of such a marriage ban.¹³⁷ Its enactment was a result of Christian influences, perhaps on the part of Ambrose, the powerful bishop of Milan, or of the law's recipient, Cynegius, a pious Christian.

Theodosius' law appears twice in the Theodosian Code, once in the title “On Marriages” (Cod. Theod. 3.7, de nubtiis), and again in the title “on the Julian law of Adultery” (Cod.

Theod. 9.7, ad legem Juliam de adulteriis). But unlike adultery accusations, which under late Roman law could be brought against a woman only by her husband or male relatives,¹³⁸ charges against a Jewish—Christian couple could be brought by any (male) member of the public.

Cod. Theod. 3.7.2 (= Cod. Theod. 9.7.5), 14 March, 388

Emperors Valentinian (II), Theodosius (I) and Arcadius Augusti to Cynegius, praetorian prefect:

No Jew may receive a Christian woman in marriage (matrimonium), nor may a Christian man obtain marriage (coniugium) with a Jewish woman. For if anyone has committed anything of this sort, he shall receive a 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 Ides of March in the second consulship of Theodosius Augustus and the consulship of Cynegius, V. c.¹³⁹

Theodosius I also issued a law condemning Jewish marriage custom (mos) and law, which specifically mentioned polygamy. The possibility of a man's having more than one wife is found in rabbinical sources (dating to the imperial period), but the actual frequency of polygamy among Jews in the Empire is debated [Ilan 1995, 85—8].¹⁴⁰ However, Theodosius evidently thought Jewish polygamy was enough of a live issue to merit legislation prohibiting it.

Cod. Just. 1.9.7, 30 December, 393

Emperors Valentinian,¹⁴¹ 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 Kalends of January in the third consulship of Theodosius Augustus and the consulship of Abundantius.

Finally, another law of the same period called for the confiscation of any kind of gifts made between partners in prohibited unions, while making exceptions for those who married illegally because they were deceived or were too young to realize what they were doing. This is apparently a law of the young western emperor Valentinian II, but it may well have been influenced by the older and more forceful Theodosius, with whom Valentinian had sought refuge in Constantinople between 387—389.¹⁴² It is addressed to the comes rerum privatarum (Count of the Privy Purse), because its purpose is to ensure that gifts exchanged in illegal marriages end up in the imperial treasury.

Cod. Just. 5.5.4, 23 February, 392(?)

Emperors Valentinian (II), Theodosius, and Arcadius Augusti to Andromachus, Count of the Privy Purse (comitem rerum privatarum)'.

Whoever 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 before marriage or afterwards given in any way.

(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 contemptible cause — or have fallen because of the slipperiness of age, are excepted.¹⁴³

(2) However, it has been decided that these are thus removed from the snares of our law only if, either once their error has been discovered or when they have arrived at adult years, they have broken off a union of this sort without any delay.

Given on the seventh day before the Kalends of March.¹⁴⁴