A Prohibitions based on kinship

Unlike some Mediterranean peoples (cf. for instance Roman Egypt, see Chapter 2, Part III), the Romans had an incest taboo.

Marriage between step-siblings was allowed, as was marriage between an adopted child and his or her adoptive sibling, provided that at least one of the two had been formally eman­cipated from paternal power [see Chapter 1, Part II.C.] and therefore was no longer legally related to the other:

D.23.2.34.2 (Papinian): Marriage can be contracted between step-siblings, even if they have a common brother conceived from the new marriage of their parents.

Gaius, Institutes I.61: Clearly marriage is prohibited between brother and sister, whether they have been born from the same father and mother or from one or the other of them. But if someone has begun to be a sister to me through adoption, indeed for as long as the adoption holds, clearly there cannot be marriage between her and me. However, when the adoption has been dissolved through emancipation, I will be able to marry her. But also if I have been emancipated, there will be no impediment to marriage.

However, marriage between an adopted child and a member of an older generation (either a direct ascendant or an ascendant’s sibling) remained illegal even if the child were emanci­pated from paternal power:

D.23.2.14 (Paulus): If an adopted son is emancipated, he cannot marry the woman who was the wife of his adoptive father, since she has the position of step-mother.

Gaius, Institutes I.63: [the beginning of the passage is omitted]... Likewise, (it is not permitted to marry) her who was once my mother-in-law or my daughter-in-law or my step-daughter or my step-mother.. [the rest of the passage is omitted]

2    Uncle-niece and aunt-nephew marriage

D.23.217.2 (Gaius): We are prohibited from marrying a paternal aunt and a maternal aunt, and likewise a paternal great-aunt and a maternal great­aunt, though a paternal great-aunt and a maternal aunt are in the fourth degree of kinship. And so moreover, we are prohibited from marrying a paternal aunt and paternal great aunt, even if they have been joined to us through adoption.

Originally, all uncle-niece marriage had been banned also. But an exception to the rule was made to accommodate the emperor Claudius, who wished to marry his brother Germanicus’ daughter Agrippina. Claudius’ marriage was quite controversial, and is mentioned by the jurist Gaius and the historians Tacitus and Suetonius, both writing in the early second century. Tacitus and Suetonius say that Claudius, incited by Agrippina’s feminine blandishments, forced the Senate to pass a decree legalizing marriage between an uncle and his brother's daughter, but the ban on marriage with a sister's daughter remained:

Gaius, Institutes I.62: It is permitted to marry the daughter of a brother. This first came into use when the deified emperor Claudius had married Agrippina, his brother’s daughter.

Tacitus, Annales XII.6—7 (excerpts²)

[The senator Lucius Vitellius, a partisan of Claudius, is justifying the marriage]:               ...

Indeed, marriages with our brothers’ daughters are new to us; but among other peoples they are customary and are not prohibited by any law, and marriages with second cousins,³ which were for a long time unknown (among Romans) have become frequent as time has passed. Just as it is useful for custom to be adjusted, so even this (new custom) will be among those which are quickly adopted.”

XII.7:... Claudius... entered the Senate and requested a decree by which marriages between uncles and their brothers’ daughters would be established as legitimate for the future. However, no one was found desirous of such a marriage except one man, the Roman knight Alledius Severus, who, most said, was impelled by Agrippina’s favor.⁴

The ban on marriage between a man and his sister's daughter continued even after Claudius's law [see below, D.23.2.57a], and in late antiquity the ban on paternal uncle-niece marriage was reintroduced [see Part II.A].

3    Former slaves and incestuous marriage

Under Roman law, slaves could not have legal marriages, and were not recognized as having a family. However, they did have quasi-marital non-legal relationships called coontubernia [see Part I.B.1]. Former slaves could legally marry, but their natal family relationships were still not recognized by law, since they had been born slaves.

D.23.2.14.2 (Paulus): Even servile relationships by blood must be observed in this law (of incest). Therefore a manumitted man may not take his own mother as wife, and it is just as much a law regarding a sister and a sister’s daughter. The same must be said for the opposite situation, that a father shall not be able to take his daughter as wife, if they have been manumitted from slavery, even if there should be doubt that he is her father. Wherefore a natural father is not able to take as wife even an illegitimate daughter, since in contracting marriage natural law and modesty (pudor) must be considered: it is against modesty, moreover, to take one’s own daughter as wife. 3: Moreover, the same (rule) must be observed in servile relationships by marriage as has been decided in the case of servile relationships by blood, for example, that I shall not be able to marry a woman who has been in contu­bernium relationship with my father, as if (she were) my step-mother, and on the other hand, it is not possible for a father to marry a woman who has been in a contubernium relationship with his son, as if (she were) his daughter-in­law. For since servile cognate relationship is understood, why should not affine relationship also be understood? But in doubtful cases the more certain and more modest thing is to refrain from marriage of this sort.

D.23.2.8 (Pomponius): A freedman is not able to marry his freedwoman mother or sister, since this law has been introduced by custom, not by legis­lation.

D.23.2.56 (Ulpian): Also if someone has taken his sister's daughter as a concubine, even if she is a freedwoman, he is committing incest.

4    Legal consequences of incestuous marriage

Marriage to someone related within the prohibited degrees of kinship was invalid, and had none of the legal consequences of marriage.

D.23.2.68 (Paulus): Someone commits incest by the law of peoples (ius gentium) if he has taken a wife from a degree of ascendants or descendants. Moreover, whoever has married a woman who is a collateral relative whom he is forbidden (to marry), or a woman related by marriage whom there is some impediment to marrying, is punished, more lightly if in fact he has done this openly, but more seriously if he has committed this (incest) secretly. The reason for this difference is the following: concerning marriage which is not decently contracted in the collateral line, those openly offending are excused from the greater penalty as having made a mistake, but those committing (incest) secretly are punished as being disobedient.

Gaius, Institutes I.64: Therefore if someone has contracted an unholy and incestuous marriage, he appears to have neither wife nor children. And thus those who are born from this sexual union seem indeed to have a mother, but certainly not a father, nor for this reason are they in his power, (but) they are such as those whom their mother has conceived promiscuously. For also those (children) are understood not to have a father, when he (his identity) is uncertain, whence they are accustomed to be called “spurious” children, either from the Greek word, as if conceived “from scattered seed” or as if children without a father (sine patre).

D.23.2.52 (Paulus): Incestuous marriages do not have a dowry, and there­fore everything which has been received (as dowry) is to be taken away, even if it is under the name of profits.

Participants in an incestuous marriage who were unaware that they were breaking the law could be pardoned because of their ignorance.

The “brother emperors” are Marcus Aurelius and Lucius Verus (ruled jointly 161—9), who also made another decision regarding an incestuous marriage in reply to a petition from a woman called Flavia Tertulla:

D.23.2.57a (Marcian): The emperors the deified Marcus and Lucius wrote the following in a rescript to Flavia Tertulla, through her freedman, a measurer: “We are moved by the length of time in which you, ignorant of the law, were in a marriage with your maternal uncle, and by the fact that you were placed in marriage by your grandmother, and by the number of your children. And therefore, since all these things are in accord, we confirm the status of your children acquired within this marriage, which was contracted forty years ago, just as if they had been conceived legitimately.”

Flavia Tertulla’s names (nomen plus cognomen) indicate that she had the Roman citizenship and therefore was subject to Roman marriage law, but do not tell us anything about where she lived or her ethnicity. She may have been a provincial whose family had at some point obtained Roman citizenship, who lived in a region where uncle-niece marriage was customary and still legal under local law (such as Egypt or the Greek Aegean). Her case arose in the joint reign of Marcus Aurelius and Lucius Verus (161-9), fifty years before the emperor Caracalla bestowed Roman citizenship throughout the Empire. Flavia Tertulla had not known that her marriage ran counter to imperial law, and it is possible that her grandmother and uncle had not known either. Most Romans in Italy and heavily Romanized western provinces probably were aware of the prohibition on marriage between close kin related by blood, including siblings. They were perhaps more likely to have problems in regard to marriages with those related not by blood, but by some other relationship, such as in-laws or step­children (see above).

5    Diocletian’s edict against close-kin marriage

In 212, the Constitutio Antoniniana of the emperor Caracalla granted Roman citizenship to virtually all free inhabitants of the Empire. All citizens had to abide by the Roman law of marriage, and to observe Roman marriage prohibitions. But in areas where close-kin marriage was firmly entrenched, it could not easily be eradicated by imperial law.

On 1 May, 295, the emperors Diocletian and Maximian, along with their Caesars (junior emperors) Galerius and Constantius, promulgated a strongly worded edict against close-kin marriages of all kinds. The law was enacted at Damascus, in Syria, and may have been prompted by reports of incestuous marriages in that region of the Empire, where marriages between uncles and nieces and between siblings (especially half-siblings) had a long tradition. This edict, which was meant to have general application, differs in form and in tone from rescripts such as the one to Flavia Tertulla quoted above, which was sent to an individual in response to a petition. In the later Empire, general laws such as this edict become the most common form of legislative enactment [see Introduction, Part I.B]. Late antique edicts, like this one, are often long, verbose, and highly rhetorical, and threaten heavy penalties for offenders.

Note especially the moralistic flavor: close-kin marriages are represented as an abomina­tion to the gods, whose divine favor is needed for the safety of the Empire. Emphasis is placed on the importance of respecting the Roman virtue of pietas, which means “sense of duty, espe­cially to one's family.” This edict was preserved in a fourth-century legal collection known as the “Collation of Mosaic and Roman Laws,” compiled by a Christian or a Jew who wanted to show the compatibility of secular Roman law with the law of Moses.⁵ Moralistic outrage and concern to act in a pious and god-fearing manner are more usually associated with the laws of the Christian, late Roman emperors. But the edict against close-kin marriage was not enacted by Christian emperors; on the contrary, Diocletian and his Caesar Galerius (who, according to one scholar, was the instigator of this law⁶) were well-known as persecutors of Christians, and the last, “Great” persecution took place in 303—6, under the same rulers as had enacted this edict eight years earlier. Moral fervor and piousness are hallmarks of late Roman law, pagan and Christian alike.

Nor was this the only Diocletianic legislation on the topic of incestuous marriages. Several years prior to this edict, a rescript of Diocletian and Maximian to an imperial official and preserved in the same collection, had said that those who had contracted incestuous marriages “by error” were not to be punished if they broke up after the issuing of the rescript {Collatio VI.5.i.; see Corcoran 1996, 125]. And another rescript, not found in current editions of the Code of Justinian but evidently emanating from the same emperors, forbids the children of incestuous unions to obtain positions as judge, advocate, or procurator in a legal case [Corcoran 2000].

Mosaicarum et Romanarum Legum Collatio VI.4, 1 May, 295 Example of an edict of Diocletian and Maximian Augusti and Constantius and Maximianus (Galerius), most noble Caesars:

Since those matters, which have been established by Roman laws in a chaste and holy manner, seem to our pious and religious minds to be espe­cially venerable and in need of preserving, we do not believe it is necessary to dissemble about those acts which have been committed wickedly and unchastely (inceste) by certain people in the past. Since (these acts) must be repressed or indeed punished, the discipline of our times urges us to rise up. For thus there is no doubt that even the immortal gods themselves will be favorable and gentle to the Roman name, as they always have been, if they have seen that all people living under our rule lead a wholly pious and reli­gious and peaceful and chaste life in all respects.

(2) In this matter we have decided that this also should be provided for as much as possible: when marriages have been joined in a religious and legiti­mate way according to the discipline of the ancient law, that, with religion having been safeguarded, there begin to be deliberation as much for the honorableness of those who pursue the joining of marriages, as also for those who are born thereafter as a result, and that even posterity itself be purified by the honorableness of being born. For it has especially pleased our sense of duty (pietas), that the sacred names of kinship maintain among one's own loved ones the dutiful (pia) and religious affection (caritas) owed to blood relationship. For it is wicked to believe those things, which it is agreed have been committed by very many in the past, when in the promiscuous manner of cattle or wild beasts they have rushed into illicit marriages at the instiga­tion of accursed lust, without any respect for modesty or sense of duty (pietas).

(3) But whatever (acts) appear to have been committed before this time from illicit marriages by the custom of barbaric enormity, either because of the inexperience of those who transgressed or by virtue of ignorance of the law, though they should be most severely punished, however, by the consid­eration of our clemency we wish to tend to indulgence. Accordingly, however, those people who have polluted themselves in illicit and incestuous marriages before this time shall know that they have obtained our indul­gence to this extent, that after such nefarious crimes they should be thankful that even their life has been allowed them. Let them know, moreover, that the children they have borne from so wicked a union are not legitimate. For thus it will happen that no one in the future shall dare to obey unrestrained desires, since they also shall know that the previous committers of this kind of crime were liberated by pardon in such a way that they are prohibited from the succession of the children whom they illicitly bore, which was denied by Roman laws according to antiquity. And we would have wished indeed that nothing of this kind had been committed before this, which had to be forgiven by clemency or corrected by the laws.

(4)But after this we wish that religion and sanctity in joining in marriages be preserved by each person, so that they should recall that they are concerned with Roman discipline and laws and they should know that only those marriages are licit, which have been allowed by Roman law.

(5) Moreover, we have included in this edict of ours those persons, from those related by blood (cognati) as well as those related by marriage (adfines), with whom it is not allowed to contract marriage:

with a daughter, granddaughter, great-granddaughter, likewise a mother, grandmother, great-grandmother, and a sister on the father's side or on the mother's side, and the daughter of a sister and the granddaughter from her.

And likewise from those related by marriage (adfines): a step-daughter, a step-mother, a mother-in-law, a daughter-in-law, and the others which are forbidden by the ancient law, from whom we wish all to abstain.

(6)For our laws protect nothing except what is sacred and venerable, and thus the Roman majesty has arrived at so great a magnitude by the favor of all the divinities, since it has bound all its laws by wise religion and by the observation of modesty (pudor).

(7)Therefore we wish in this edict of ours that it become plainly known to all, that the pardon of past events, which seems to have been indulged by our clemency contrary to discipline, pertains only to those crimes, which appear to have been committed up to the third day before the Kalends of January in the consulship of Tuscus and Anullinus.⁷

(8)However, if any crimes are discovered to have been committed contrary to the honor of the Roman name and the sanctity of the laws after the above­mentioned day, they shall be struck with a worthy severity. Nor, indeed, should anyone who does not hesitate to rush into so obvious a crime even after our edict think that he can obtain pardon in so nefarious a wicked deed.

Given at Damascus on the Kalends of May in the consulship of Tuscus and Anullinus.⁸

For all its rhetoric, the law of 295 simply repeats the classical Roman legal attitude toward incestuous marriages. Note that nothing is said about marriage between a man and his brother’s daughter, which had been legalized in the first century under the emperor Claudius (see above). In fact, marriage between paternal uncle and niece was not prohibited until 342 [Cod. Theod. 3.12.1, in Part II.A]. Moreover, though dire punishments threaten those who do not obey the law, the specific penalty is not actually stated. Those who have been pardoned for illicit unions in the past are told they are lucky to have been allowed to live, which implies that the penalty for continuing in incestuous marriage is death. But it is possible that exile with confiscation of goods (deportatio"), considered a “capital” penalty, would have been applied instead, at least in the case of honestiores.⁹