A Prohibitions based on kinship

A law of 342 banned all uncle-niece marriage, thereby implicitly revoking the first-century senatorial decree which had allowed marriage between a woman and her father’s brother [see Chapter 3, Part I.A.2].

Cod. Theod. 3.12.1, 31 March, 342

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 capital sentence.

Given at Antioch on the day before the Kalends of April in the third consulship of Constantius and the second consulship of Constans Augusti.⁴¹

Classical law had prohibited the marriage of a man with his former mother-in-law or daughter-in law [Gaius, Institutes I.63, Part I.A.1], but it is only in late Roman law that unions between former siblings-in-law are banned.

Cod. Theod. 3.12.2, 30 April, 355 Emperors Constantius and Constans⁴³ 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 marriage had been dissolved, (and) even legal after a wife's death or divorce to contract marriage with her sister, everyone should abstain from marriage of this sort nor should they think that legitimate chil­dren are able to be created from this association. For it is agreed that those who will be born are illegitimate (spurii).

Given at Rome on the day before the Kalends of May in the consulship of Arbitio and Lollianus.

The emperor Theodosius I (reigned 379—395) banned marriage between first cousins. His law is no longer extant, but is referred to in contemporary non-legal sources [Epitome de Caesaribus 48.10; and see Ambrose and Augustine below] and in the following laws, enacted after his death.

The first law [Cod. Theod. 3.12.3], enacted only a year after Theodosius’ death, mitigates the apparently extremely harsh provisions of the original law (confiscation of goods and exile), while still refusing legitimacy to incestuous marriages and their offspring. Another law nine years later [Cod. Just. 5.4.19] rescinds the ban on cousin marriage altogether.

Cod. Theod. 3.12.3, 8 December, 396

Emperors Arcadius and Honorius Augusti to Eutychianus, praetorian prefect:

The imperial opinion remains concerning those who were absolved or punished in any way after the law which was formerly enacted. If anyone after this has polluted himself with incestuous (marriage) of his own cousin, or of the daughter of either his sister 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 penalty 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 promised, shall, according to the ancient law, yield to the advantage of our fisc.

He shall bequeath nothing by his will to unrelated parties, but whether (he has died) testate or intestate, those persons shall succeed to him right­fully and by the laws, who by chance have been born from a legal and legitimate marriage. That is, from descendants: son, daughter, grandson, granddaughter, great-grandson, great-granddaughter; from ascendants: father, mother, grandfather, grandmother; laterally: brother, sister, paternal uncle, paternal aunt.

Of course, that which we decree concerning men also is to be observed concerning women who have stained themselves by associations of the afore­mentioned 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, 11 June, 405

Emperors Arcadius and Honorius Augusti to Eutychianus, praetorian prefect:

By the salubrious nature of this law, license has been granted for cele­brating marriages between cousins, so that now that the authority 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 from two sisters or from a brother and a sister. And from this marriage legitimate (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 of Stilicho and the consulship of Anthemius.

The actual frequency of close-kin marriage in the Roman Empire has been debated [Shaw and Saller 1984, Goody 1983].

Marriage between the offspring of siblings does seem to have caused some discomfort in the Roman west. In the early 390s Ambrose, bishop of Milan, wrote to the senator Paternus, who had served as proconsul of Africa under Theodosius I, protesting a marriage which Paternus was arranging between his son Cynegius and his granddaughter (from his daughter by another wife).⁴⁵ Marriage between a man and his sister's daughter had always been illegal under Roman law [Part I.A.2], but this did not seem to worry Paternus, who was apparently confident of getting imperial permission for the match. Ambrose, on the other hand, was alarmed at the proposed marriage, and invokes both divine and imperial law in his argu­ments.

Another letter of Ambrose [Epistle 59 (84)], written to Cynegius, reveals that the son was not particularly happy about his proposed marriage but was acceding to it out a sense of filial duty (pietas). It may be, however, that despite Ambrose's protests, the marriage took place.⁴⁶

Ambrose, Epistle 58 (60)

(1)    lang=EN-US>I have read the greeting of Paternus, my comrade, but the matter about which you consult me is not at all paternal: that you wish to join your grand­daughter from your daughter to your son — a proposal worthy of you neither as grandfather or as father. And so consider what you have consulted about.

(2). You are preparing to join your own son and your granddaughter from your daughter, that is, (you are preparing) that he receive the daughter of his own sister, though he was born from a mother different from his mother-in-law. Examine the piety (religio) of the names. For indeed he is called her uncle, and she his niece.. You will be called grandfather and father-in-law alike, and she also will be named granddaughter and daughter­in-law by a different name..

(3) . For what is there that can be doubted, when divine law even prohibits paternal cousins, who are associated in the fourth degree, to join in marriage? But this (marriage) is the third degree, which seems to have been removed from conjugal joining even in civil law..

[Ambrose gives scriptural and moral arguments against the marriage, here omitted.]

(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 no means to bypass you. For the emperor Theodosius has also forbidden that paternal and maternal cousins come together among themselves in the name of marriage, and he has ordained a very severe penalty, 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 not 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 called his own sister “wife,” it is unheard-of that anyone should receive his own niece as wife and call her “spouse.”.

(11) Therefore it is necessary for you to depart from this intention, which even if it were permitted, still would not propagate your own family. For our son owes grandchildren to you, (and) our very dear granddaughter also owes great-grandchildren to you. Farewell (to you) with all of yours.

At the end of his letter, Ambrose reminded Paternus that marrying close relations to each other would restrict the extension of family bonds. In book 16 of his massive work City of God, written in the early fifth century, Augustine of Hippo gives much the same rationale against kin marriage, especially between cousins.⁴⁷ Though in early (Old Testament) times, Augustine says, patriarchs practiced close-kin marriage because of the lack of available part­ners outside the family, now men are able to extend their range of relationships and influence far beyond their kin. Moreover, according to Augustine, though cousin marriage had only recently been restricted by law, it had never been a popular option. In addition to practical considerations (the desirability of extending family ties), it went against modesty and family feeling for the same person to be both a blood relation and a sexual partner (Ambrose had made much the same point in his letter to Paternus).

Augustine, City of God XV.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 relation­ships one person would not have two bonds of kinship when two (people) could have them and the 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 (verecundia). So that, from her to whom the reason of kinship owes reverend honor, it nevertheless restrains the lust about which we see even wifely modesty blush, though it results in children.

Both Ambrose and Augustine lived in the Latin-speaking milieu of the Roman west, where marriage between close kin had always been frowned upon in law and custom [Part I.A]. If Augustine is right, Romans had never favored cousin marriage, and it is worth noting that though the western emperor Honorius showed himself willing to grant indulgences to (presumably influential) citizens who wished to marry against the law [Cod. Theod. 3.10.1 in Part II.C], he did not actually repeal his father Theodosius’ law, whereas his brother Arcadius in the east did [Cod. Just. 5.4.19, above]. In the medieval west, limits on close-kin marriage became ever stricter, particularly under the direction of the Christian Church [Goody 1983].

Many of the peoples of the eastern half of the Empire, however, had traditionally practiced marriage unions between kin, including between uncle and niece and even siblings (or half­siblings). Though the imposition of Roman marriage law on provincials after 212 seems to have largely eliminated brother-sister marriage in Egypt, it is clear from later Roman laws that close-kin marriage continued in some places. Both Diocletian in 295 [Part I.A.5] and Constantius in 342 [Cod. Theod. 3.12.1, above] had directed legislation to Near Eastern provinces. In the mid-fifth century, Theodoret, bishop of Cyrrhus in northern Syria, heard that in the nearby city of Zeugma, marriages between uncle and niece and between cousins were taking place. In a strongly worded letter to the magistrates of Zeugma, Theodoret made the same arguments against such unions as had Ambrose fifty years earlier.⁴⁸ Legislation of the sixth-century emperors Justinian and Justin indicates that close-kin marriage, evidently including sibling and even father-daughter unions, was still practiced in parts of the eastern Empire near to the Persian Empire [Lee 1988]. Cousin marriage was, however, officially allowed by Justinian in his Institutes [I.10.4] of 533.

A law of the eastern Empire dated 475 bans the marriage of a man to his deceased brother’s wife. This practice, known as “levirate marriage,” was an ancient Jewish custom [see Deuteronomy 25.5-10], but seems to have been practiced rarely by Jews in the period after the First Jewish Revolt and destruction of the Temple [Ilan 1995, 152-7]. Along with marriage to a former wife’s sister, marriage to a brother’s wife had already been prohibited in 355 [Cod. Theod. 3.12.2, above]. The law of 475, however, refers only to a brother’s marrying the still­virgin wife of his deceased brother, which is called a practice of “the Egyptians.”

Cod. Just. 5.5.8, 1 September, 475

Emperor Zeno⁴⁹ Augustus to Epinicus, praetorian prefect:

Certain of the 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 to certain founders of the laws — that marriage does not really appear to have been contracted since they had not come together carnally; and marriages celebrated at that time have been confirmed. However, we ordain by the present law that if any marriages of this type have been contracted, their contractors and those born from them are subject to the tenor of the ancient laws, nor do they (the marriages) appear to have been confirmed or confirmable by the example of the Egyptians, concerning whom we spoke above.

Given at Constantinople on the Kalends of September in the year after the consulship of the younger Leo.