B Prohibitions based on status

In addition to marriage prohibitions based on kinship, late Roman emperors expanded the category of prohibitions based on status, and decreed harsher penalties for those who entered into prohibited unions.

1 Expansion of the Augustan prohibitions

The Augustan legislation against marriages between members of the senatorial class and former slaves [Part II.B.4] was expanded to include members of provincial and municipal aristocracies, and the category of women who were prohibited from marrying such men was likewise expanded [Evans Grubbs 1995, 283—94; McGinn 1999].

Cod. Theod. 4.6.3, 21 July, 336

Emperor Constantine Augustus to Gregorius (praetorian prefect):

It is decided that senators orperfectissimi,⁵ or those in the cites whom the duumvirate or the office of quinquennal or the distinctions of the office of flamen or a provincial priesthood adorn,⁵² are to undergo the stain of infamia and become peregrines under Roman laws,⁵³ if, either by their own judg­ment or by the right of a rescript from us, they have wished to consider among the number of (their) legitimate children those who have been begotten from:

a slavewoman or the daughter of a slave woman or his freedwoman or (the daughter) of his freedwoman, whether one made a Roman citizen or a Latin,⁵⁴ or an actress or the daughter (of an actress), or a tavern-keeper or the daughter of a tavern-keeper, or a humble or despicable woman (vel humili vel abiecta) or the daughter of a pimp or a gladiator or a woman who has been in charge of publicly sold merchandise.

But whatever of any kind has been given to such a wife⁵⁷ or has been conferred upon her by bill of sale, this also we order to be taken back and returned.⁵⁸ If anything that is to be returned to those to whom we have ordered or to our fisc⁵⁹ is sought or is said to have been entrusted (to such women), we order that the women themselves, by whose poisons the minds of the ruined men have been infected, (be subjected) to tortures. And so if anything has been given through the man himself who is said to be the father or through another or through a fraudulently substituted person⁶⁰ or has been bought by him or by another or in the name of the (illegitimate children) themselves, it is immediately to be taken back and returned to those to whom we have ordered, or, if they do not exist, it is to be claimed by the power of the imperial fisc. But if, though they exist and are present⁶¹ they were not willing to act, prevented by an agreement or an oath, the fisc shall enter upon the whole without delay.

For those who are silent or are lying, a time limit of two months shall be set to defend themselves from the fisc. If within this time they have not either withdrawn (the property from the illegitimate children) or appealed to the provincial governor in regard to withdrawing (the property), our fisc shall taken possession of whatever an impure generosity bestowed on such children or wives, seeking out with severe torture the things given or entrusted, under a fourfold penalty.⁶²

Moreover, the son of Licinnianus, who has been captured while fleeing, is to be bound with fetters and condemned to the service of the weaving mills at Carthage.⁶³

Read out at Carthage on the [twelfth] day before the Kalends of August in the consulship of Nepotianus and Facundus.⁶⁴

The list of women whom senators and provincial and local notables are forbidden to marry includes not only freedwomen and actresses, who had been legally ineligible for marriage with senators and their descendants under the Augustan laws [see Part I.B.4] but also slaves, who had never under Roman law been able to contract legal marriage [Part I.B.1].

Moreover, women in the prohibited group who did receive something from high-ranking men, or whose children by those men received something, were threatened with torture. Torture would in general only be appropriate to people of slave or very low status, and is here (as normally in Roman law) used as a means of extracting information. Note the characteriza­tion of the women as “infecting” with “poisons” the minds of noble men — who consider them their wives and their children legitimate. It is also interesting that the law foresees the possi­bility that legitimate members of the men's families may try to deceive the law by not coming forward or even by helping the illegitimate children to claim their legacies or gifts. It appears that many subjects, even those of high rank, did not agree with the emperor's atti­tude toward unions of those of different status. This may be due at least in part to the fact that many of the new senators and office-holders, especially in the eastern Empire, were themselves of relatively humble origins [Evans Grubbs 1995, 287—9].

Over the following century emperors, in both the eastern and western halves of the Empire, continued to enact legislation on the inheritance rights of illegitimate children born from the unions prohibited by Constantine in 336.

The legislative fluctuation suggests that the laws caused concern and confusion and that emperors had to clarify the situation of illegitimate children repeatedly (often in response to a law from the other half of the Empire). We know from a law of the eastern emperor Marcian (reigned 450-457) that another aspect of Constantine's law caused confusion: who exactly were the “humble and despicable” (vel humilis vel abiectO) women mentioned in the law?⁶⁷ Marcian's law was intended to clarify the status of such a woman. His law reveals an inter­esting mixture of ideas about the blamelessness of poverty (no doubt influenced by Christian teachings) and very traditional, pre-Christian attitudes about the importance of free birth (ingenuitas), which was still considered the mark of a morally upright and socially acceptable person. The preamble to his law suggests that actual cases had come to court involving men of rank wishing to marry freeborn but poor women.

Novel 4 of Marcian, 4 April, 454

Emperors Valentinian and Marcian Augusti to Palladius, praetorian prefect:

The most sacred laws, which restrict the lives of all, ought to be under­stood by all, so that everyone, once their (the laws’) precepts have been learned more clearly, shall decline forbidden things and follow those which are permitted.

municipal flamen, or a provincial priest to have as wife a slave woman, ... [The law repeats the list of women in Cod. Theod. 4.6.3, omitted here]

... he added to the forbidden and prohibited persons also a “humble and despicable” (humilem abiectamque) person. Your Highness observed that great doubt arose subsequently in legal judgments concerning marriage about whether these words also ought to refer to poor, freeborn women and (whether) the rule of the law excludes them from marriage with senators.

May this wickedness be far removed from our times, that it should be believed that poverty has been given as a dishonor to anyone, since often moderate resources have prepared much glory for many, and a rather small property rating has been a testimony to self-control! Who would think that Constantine of renowned memory, when he forbade senators to contaminate their marriage couches with the dregs of polluted women, had put the gifts of fortune above natural good qualities and had put riches, which the vicissi­tudes of chance are as able to remove as to give, above free birth, which cannot be taken away once it has been inborn?

(2) But that man, who most loved the honorable and was a most holy censor of character, judged those women to be “humble and despicable” persons and considered them unworthy of marriage with senators, whom either the shameful stain of birth or a life given over to disgraceful occupa­tions has polluted with sordid marks of dishonor and has infected either through the turpitude of origin or the indecency of profession.

(3) But we think that “humble and despicable” persons are only those women, who, specified and expressly stated, were not allowed by the afore­mentioned law to be joined in marriage with senators, that is:

[the list of women in Cod. Theod. 4.6.3 is here repeated, with the exception of “humble and despicable”]

... Which we believe beyond a doubt that Constantine of divine memory himself intended in that law which he promulgated and therefore he forbade marriages of this kind, lest senators be joined, not so much in the marriages as in the vices of these women whom we have enumerated.

(4) Also, whatever other things have been laid down in sacred constitu­tions by Constantine of renowned memory or by other divine emperors after him concerning natural children and their mothers, and also about freeborn concubines and about those who came together in marriage after a wife's death,⁶⁸ we order to be preserved inviolably. Moreover (they should be preserved) so that those laws which have been passed later should precede in authority laws promulgated earlier and whichever of them is later in time should be more valid in law, dearest and most loving parent Palladius.

(5) Therefore, your illustrious and magnificent authority shall see to it that this law of Our Serenity, which will endure perpetually in every age, comes to the notice of all, after edicts have been posted in the customary way.

Given at Constantinople on the day before the Nones of April in the consulship of Aetius and Studius, vv. cc⁶

2    Concubines

Constantine's law of 336 [Cod. Theod. 4.6.3, above] not only forbade marriage between men of rank and the women enumerated in the law, but also penalized those men who lived in concubinage with such women, if they tried to benefit their concubines or (more usually) their illegitimate children. In classical law gifts to a concubine were valid (whereas those to a wife were not, which disturbed the jurist Ulpian; see Part I.B.5), and a man could leave bequests to his concubine and illegitimate children in his will. As we have seen above, Constantine's regulations concerning the inheritance rights of illegitimate children of high- ranking men were modified by later emperors, who allowed such children to receive at least part of their father's property.

We know of two other Constantinian laws on concubines, neither preserved in the Theodosian Code though possibly they were part of the now-missing Cod. Theod. 4.6.1 and 2 [Evans Grubbs 1995, 294—300]. One is known only from a single sentence in the Code of Justinian·.

Emperor Constantine Augustus to the People·

No one shall be granted liberty to keep a concubine in his home while he is married.

Posted on the eighteenth day before the Kalends of July in the seventh consulship of Constantine and the consulship of the Caesar.

A similar statement appears in the Sent. Pauli, probably redacted at about the same time.⁷⁰ Both represent the classical Roman legal position· concubinatus was an alternative, not a supplement, to iustum matrimonium [Treggiari 1981a, 177—8]. Not all inhabitants of the Empire would necessarily have adopted the Roman view, however, so a restatement in law may have seemed necessary.⁷¹ Cod. Just. 5.26.1 does appear to leave the door open for a married man to keep a concubine somewhere besides his home. Opinions vary as to whether Constantine intended to prohibit married men from having concubines altogether [Beaucamp 1990, 172-5].

The other Constantinian ruling on concubines, mentioned by Marcian [Novel 4.4, above], was revived in a law of the eastern emperor Zeno·

Cod. Just. 5.27.5, 20 February, 477

Emperor Zeno Augustus to Sebastianus, praetorian prefect·

We renew the most sacred constitution of the divine Constantine, who fortified the Roman Empire by the venerable faith of the Christians, concerning freeborn concubines being taken as wives, and indeed (about) their children also born from the same women either before or after marriage being considered legitimate. (And) we order that those men who before this law have begotten children of either sex in chosen concubinage with free­born women, with no marriage intervening, who of course do not have a wife (uxor), and have no legitimate offspring begotten from legal marriage, if they wished to take as wives those women who had previously been their concubines, they are able to contract legitimate marriage with freeborn women of this kind, as it was said (in Constantine’s law). As well, the chil­dren of both sexes born in the earlier concubinage from the same women, as soon as marriage with their mothers has been celebrated, can become their (the men’s) own and be in their legal power, along with those, who after­wards have been begotten from the same marriage, or by themselves, if no other is later born. And, if their fathers are willing, they can also inherit in full by will or seek their paternal inheritance from an intestate (father) ... ⁷²

It is striking that the emphasis in Zeno’s law, and presumably in Constantine’s also, is on freeborn (ingenuae) concubines, those of good enough birth that they would be expected to enter marriage rather than concubinatus. Freedwomen concubines (who were much more usual; see Part I.B.5) and their offspring are not covered by the law. Though Zeno’s opening sentence implies that Constantine’s law was motivated by Christian concerns, it was in fact a very explicit expression of traditional Roman prejudices about the moral and social value of free birth. It was also the first mention in Roman law of retroactive legitimation of illegitimate children [see Evans Grubbs 1995, 297, with references there].

In late antiquity, the most common kind of concubinage was apparently that of a young man, not yet ready to make a socially acceptable marriage, with a woman of lower status. The young Augustine, whose father was apparently a town councillor (decurion or curialis), is the most famous example [Arjava 1996, 205—10; Evans Grubbs 1995, 300—1]. In his Confessions, written at Carthage in the final years of the fourth century, Augustine, now bishop of Hippo, looked back on his life two decades earlier.⁷³ As a young man, he had begun a monogamous relationship with a woman with whom he lived for almost fifteen years and by whom he had a son, Adeodatus (meaning “given by God”). We know nothing of his concubine apart from what he tells us in the Confessions; he never even mentions her name (probably out of considera­tion for her reputation). Given the fact that she was a concubine rather than a wife, and that Augustine did not consider marrying her, we can assume that she was of much lower status than he was, perhaps a former slave, or one of the “humble and despicable” women condemned by Constantine in his law of 336.

Augustine, Confessions IV.2 and VI.15

Confessions IV.2: ... In those years I had one woman, not one known in that marriage (coniugium) which is called legitimate, but one whom a wandering ardor, bereft of good sense, had sought out — only one, however, to whose bed I remained faithful. In regard to whom, I could experience by my own example what a distance there is between the moderation of the conjugal agreement, which would have been entered into for the sake of begetting children, and the pact of lustful love, where offspring are born even against one's wish — though once born, they compel themselves to be cherished.

As Augustine progressed on the career track which would probably have led him to the imperial administration had he not turned to the church instead, he began to feel the need to make a legal marriage that would bring him wealth and social advantages. His mother, Monnica, was the driving force behind his marriage arrangements, since Augustine’s father had died many years earlier [Shaw 1987a, 34]. A betrothal agreement was made, but Augustine’s fiancee was still two years below the legal age of marriage (which was twelve, as in classical law). Augustine (who was around thirty at this time) dismissed his concubine of many years, but found he could not remain celibate until his fiancee reached marriageable ^ag^e:

Confessions VI.15: Meanwhile my sins were being multiplied, and since she with whom I had been accustomed to sleep had been torn from my side as an impediment to marriage, my heart had been cut and wounded where it was clinging, and was drawing blood. And she had returned to Africa, vowing to you⁷⁴ that she would not know another man, and my natural son born from her had been left with me. But I, unhappy and not imitating the woman, (but) impatient of the delay, as I was going to receive the one whom I sought after a two year period, since I was not a lover of marriage but a slave of lust, I procured another woman, not, of course, a wife, in order that the disease of my soul might be, so to speak, supported and prolonged, either unimpaired or strengthened, by a convoy of enduring habit in the uxorial kingdom. Nor was that wound of mine, which had been made by the cutting off of my former (relationship), cured, but after very fierce burning and grieving, it putrefied, and it hurt, as if colder, but more desperate.

Augustine’s decision to reject his concubine, the mother of his son, for an arranged marriage with a girl one-third his age, caused him not only pain at the loss of a sexual partner, but shame at his own selfish and sinful behavior. A eew c-irs after lie wrote ilie Confessions, he referred obliquely to his concubine in his treatise, On the Good of Marriage (de bono coniugalif⁷

Augustine, On the Good of Marriage V

It is often also asked, when a male and female — he not being a husband nor she being the wife of another man — are joined with each other, not for the sake of begetting children, but for the sake only of sleeping together on account of lack of self-control, by that in-between sort of fidelity, so that he does not do this with another woman nor she with another man — whether this should be called marriage (nuptiae). And indeed it is able perhaps not absurdly to be called marriage (conubium), if it (the union) has been agreeable to them up to the death of one of them, and though they were not joined for this reason, nevertheless they have not avoided the begetting of offspring, in such a way that either they did not want children to be born to them or they even took action by some evil deed so that they were not born.

But if either one or the other of these things is lacking, I do not see how we can call this marriage. And indeed if the man has taken some woman for himself for a time, until he should find another woman (who is) worthy because of her rank or her resources, whom he can take as a partner, he is an adulterer in his mind, not with the woman whom he wishes to find, but with that woman with whom he is sleeping in such a way that he does not have marital union (maritale consortium) with her. Wherefore also she herself (is an adulterer), if knowing this⁷⁶ she willingly has intercourse shamefully with a man with whom she does not have a wifely bond. But if she remains faithful to his bed and, when he has taken a wife, she herself does not think of marrying and she prepares to restrain herself from such activity hence­forth, I, indeed, would not perhaps dare easily to call her an adulterer. But who would say that she does not sin, when she knows that she has inter­course with a man, whose wife she is not?...

For Augustine, as for Roman law [see Chapter 2, Part I.A], both marital intent and the intention of having children are essential for marriage, though a life-long union which accepts children even if they were not originally desired can “not absurdly” be considered marriage. But whereas in Roman law (increasingly so in late antiquity), the status of both partners was an important factor in whether or not a union could be considered marriage, for the mature bishop Augustine it is not. The man who puts away a low-status concubine in order to marry a woman of rank and wealth is an adulterer “in his mind” — though not in law, as Augustine well knew.

3    Free men and slave women

Constantine’s law prohibiting marriage between men of high status and low-status women [Cod. Theod. 4.6.3, above] included slaves among the women prohibited. Relationships between slave and free had never been valid under Roman law, but late antique lawmakers felt this had to be stated explicitly. Evidently many inhabitants of the Empire, even those of high status, either did not know that marriage with a slave was impossible, or did not care.

Another law of Constantine was aimed at town councillors (decurions, called curiales in late Roman law) who abandoned their positions to live on another landowner’s estate and cohabit with one of his slaves. The law was enacted at Aquileia in north Italy.⁷⁷ The under­lying issue is the abdication of his municipal responsibilities by the curialis, a topic frequently addressed in late Roman law [Evans Grubbs 1995, 278—80].

Cod. Theod. 12.1.6, 1 July, 318

Emperor Constantine Augustus to Patroclus:

Though it seems unworthy for men who do not possess any rank to descend to sordid marriages (conubia) with slave women, it is nevertheless not at all prohibited by the laws. But marriage (conubium) with servile persons is not possible and from a union (contubernium) of this type slaves are born.⁷⁸ Therefore we order that decurions are not to flee, led by lust, to the laps of very powerful houses. For if a decurion secretly, without the knowl­edge of overseers or stewards,⁷⁹ has been joined to someone else’s slave, we order that the woman be driven into the mines by a judge’s sentence, and that the decurion himself be deported to an island. His movable property and urban slaves are to be confiscated,⁸⁰ but his estates and rural slaves are to be handed over to the city whose curialis he has been, if he has been freed from paternal power and has no children or parents or even relatives, who are called to succeed him according to the rule of the laws..,.⁸¹

Late Roman emperors also reiterated the classical rule that children of slavewomen were slaves, even if their father were their mother's master. Constantine denied that children of a master by his slave could claim their liberty, even if they had lived in de facto freedom for many years:⁸²

Cod. Theod. 4.8.7, 28 February, 331

... For it is necessary by common law (ius commune) that a child follow its mother’s condition, so that, even if a slave woman should ascend the bed of her master, she shall bring forth to her master the offspring not of free people, but of slaves.

The legal situation of a man’s illegitimate children by his slavewoman seems to have become confused with the situation of freeborn children from other illegal unions, such as those between men of rank and the women listed in Constantine’s law of 336 (which had included both slave and free women). This is suggested by a western law of Valentinian III, which describes the children of both types of unions as “natural:”

Cod. Theod. 4.6.7, date missing (426/7)

Emperors Theodosius (II) and Valentinian (III) Augusti to Bassus, praetorian prefect:

We order that the name of “natural” (children) be imposed on those who were brought forth into the light by a legal joining without honorable cele­bration of matrimony. However, it is clear from law itself that slaves are born from the womb of a slavewoman, though by force of nature it is not possible to take away the name of “natural” (children) even from them [there is a lacuna in the manuscript]... Clearly, if natural (children) have been born from a slavewoman and are not manumitted by their master, they are counted among the slaves of the estate..⁸³

Valentinian’s requirement that a marriage have external signs of validity (either a celebra­tion or a written document) is new in Roman law, which had never before required documentation [Chapter 2, Part I.A]. In another part of (probably) the same law, Valentinian made an exception for soldiers, to whom he permitted “the free capacity of contracting marriage with freeborn women without any solemnities of marriage.”⁸⁴ The need for external evidence of a marriage was rejected by the eastern emperor Theodosius II in 428 [Cod. Theod. 3.7.3, Chapter 2, Part II.C].⁸⁵

Late Roman laws on the unions of free men and slave women were not simply abstract statements with little basis in actual conditions; there are many references to such non­marital unions in contemporary non-legal sources. Ambrose, bishop of Milan, addressed members of his congregation who were preparing for baptism and warned them that though they were to imitate the Old Testament patriarch Abraham in his faithfulness to God, they should not imitate his having a child by his slavewoman, Hagar.⁸⁶

Ambrose stresses that such children cannot be legitimate heirs:

Ambrose, On Abraham 1.3.19 (excerpt)

Therefore let men learn not to despise (legitimate) marriages, or to join to themselves women who are not their equals, in order that they not bring up children of the sort that they cannot have as heirs. So that, if they are not moved by any consideration of decency (pudor), they may be eager for a worthy marriage at least by the thought of passing on their inheritance.

The Christian writer Jerome, around the year 400, described men whose poverty suppos­edly prevented them from marrying.⁸⁷ He notes, however, that it was possible to obtain an imperial rescript granting otherwise ineligible women the right to marry, if a man was willing to pay for it:

Jerome, Epistle 69.5 (excerpt)

Jerome's statement was occasioned by a dispute that had arisen in the church: should a man who had been married and widowed before his baptism, then married again after baptism, become a bishop, or would this go against the apostolic rule [1 Timothy 3] that a church leader should be the husband of only one woman? Some thought that any previous marriage, even before baptism, would disqualify a man from becoming a cleric, but that a non-marital relationship with a concubine would not, and Jerome derided the hypocrisy of this attitude.⁹⁰

About half a century later, Pope Leo received an inquiry from Rusticus, bishop of Narbonne, on a related issue.⁹¹ Should a cleric give his daughter in marriage to a man who did not have a legally married wife, but did have a relationship with a woman by whom he had had children? Like lawgivers of the western Empire, the Pope saw the difference between marriage and concubinage as determined by the status of the woman and by the presence of external proof that the relationship was marriage, and like Ambrose, he stressed heirship as the identifying feature of legitimate children:

Leo the Great, Epistle 167.4-5 (excerpt)

(4)    Not every woman joined to a man is the man’s wife, because not every son is his father’s heir. Moreover, the legal contracts of marriage are between freeborn people and equals; the Lord decided this very thing long before the beginning of Roman law existed.... Therefore if a cleric of any place has given his daughter in marriage to a man having a concubine, it should not be received as if he gave her to a married man — unless by chance that woman, having been made freeborn⁹² and legally dowered, should appear to have been made honorable by a publicly celebrated marriage ceremony.

(5)Since a married woman is one thing, a concubine is another, to throw out a slavegirl from one’s bed and receive a wife of undisputed free birth is not a duplication of marriage, but the advance of honor (honestas).

Leo's conception of marriage as a public celebration between social equals which produces legitimate heirs, in contrast to the non-marital union of a man with a slaveborn woman, probably drew on fifth-century Roman law, particularly the law of Valentinian III [Cod. Theod. 4.6.7, above] and perhaps also the recently enacted law of Majorian [Novel 6.9, in Chapter 2, Part II.C].⁹³ Despite Augustine's emphasis on life-long monogamous intent as the defining characteristic of marriage, ecclesiastical and secular authorities both found it easier to evaluate a union by the legal status of its partners.

4    Free women and slave men

All of the above laws involve free men who had quasi-marital relationships with slave or lowborn women. What about free women who wished to “marry” slave men? Such a situation was much more shocking to the Roman elite than that of a man who lived with a lowborn woman, for it went against traditional ideas of sexual and social hierarchy [Evans Grubbs 1993].

In the earlier Empire, the senatusconsultum Claudianum had regulated the status of free women who lived with someone else's slave [Part I.B.2], and this continued to be the case in the fourth century. According to a law of 314:

Cod. Theod. 4.12.1, 1 April, 314

Emperor Constantine⁹⁴ Augustus to Probus:

If any free women have suffered violence either at the hands of slaves or anyone else and have been joined against their will to men of servile status, they shall obtain vindication with suitable severity of the laws. (1) However, if any woman should be forgetful of her own honor (honestas), she shall lose her liberty and her children shall be slaves of the master of that man to whom she joined herself in contubernium. It is necessary that this law be observed for the past also.

Posted on the Kalends of April in the consulship of Volusianus and Annianus.

This law correctly uses the term contubernium to describe such a free-slave relationship. Note the idea that a free woman who would cohabit with a slave has forgotten the obligations of her reputation and status.

size=1 color=black face="Times New Roman">Several years later, a law of Constantine ameliorated the condition of women who lived with “fiscal” (imperially owned) slaves, but did not affect women cohabiting with the slaves of private (non-imperial) owners:

Cod. Theod. 4.12.3, 31 January, 320

Emperor Constantine Augustus to the People:

Since ancient law compels freeborn women joined in contubernium with fiscal slaves to a boiling-down of their birth-status,⁹⁵ with no pardon granted on the basis of ignorance or age, it is decided that the bonds of such unions are to be avoided. But if a freeborn woman, either in ignorance or even willingly, has come together with a fiscal slave, (it is decided) that she suffer no loss of her freeborn status. However, the offspring, who are born from a fiscal slave father and a freeborn mother, are to hold the middle lost, so that they, as children of slave men and illegitimate (spurii) children of free women, shall be Latins who, though they are released from the fate of slavery, nevertheless will be bound by a patron's privilege.⁹⁶

[The rest of the law, omitted here, says it does not apply to women who live with slaves belonging to municipalities.]

Given at Serdica on the second day before the Kalends of February in the seventh consulship of Constantine Augustus and the consulship of Cons­tantius.⁹⁷

Five other laws are found under the title ad senatusconsultum Claudianum in the Theodosian Code, four of which deal with the requirement that a woman cohabiting with another’s slave was to be officially “warned” three times before she could be enslaved.⁹⁸ The fifth law is of interest for the moral judgment it passes on a free woman who chooses to “marry” a slave:

Cod. Theod. 4.12.6, 4 April, 366(?)

Emperors Valentinian, Valens, and Gratian Augusti to Secundus, praetorian prefect:

If desire has more value to a lustful woman than liberty, she has become a slavewoman not by war, not by payment, but by marriage (conubium), so that her children shall lie under the yoke of slavery. For it is clear that she, who regretted being free, wanted to be a slavewoman.

Given at Trier⁹⁹ on the day before the Nones of April in the consulship of Gratian, n.p.¹⁰⁰ and Dagalaifus.

Another law of the same period, found not in the Theodosian Code but in a private collec­tion of laws called the “Consultation of a certain ancient Jurist” (Consultatio Veteris Cuiusdam Iurisconsulti),¹⁰¹ suggests that some freeborn women may have “married” slave men when below twenty-five (the age of majority) and then tried to regain their freedom later:

Consultatio Vet. CuiusD.Iurisc. IX.7, 19 July, 365

Emperors Valentinian and Valens Augusti to Felix, consularis of Macedonia:

(Among other matters and at the place)¹⁰² If formerly freeborn (ingenuae) women have submitted themselves to servile contubernia, and now, scorning the master of (their) younger age,¹⁰³ try to flee the yoke of slavery, your Gravity shall impose the necessity of undergoing slavery on those who did not flee a servile status immediately at the very beginning of the union.

Given at Milan on the fourteenth day before the Kalends of August in the consulship of the emperors themselves.¹⁰⁴

By the reign of Valens and Valentinian, the sanctions of the s.c. Claudianum were being applied to free women who married fiscal slaves working in the imperial weaving mills and mints.¹⁰⁵ Clearly the law still had the same practical purpose as it did when it was introduced in the mid-first century: to ensure a supply of imperial slaves by requiring that the illegiti­mate children of imperial slaves and free women followed their father’s status rather than their mother’s, contrary to the usual rule [Part I.B.2]. But late Roman law frames the situation in moral terms: freeborn women who enter quasi-marital unions with slaves are led to do so by lust and disregard for their honor, and so deserve condemnation.

Classical Roman law and society had also frowned upon women who freed their slaves in order to marry them [Part I.B.3]. And a woman of respectable status who had a sexual rela­tionship with a slave without freeing and marrying him could have been prosecuted under the Augustan law on adultery and illicit sex (.stuprum).¹⁰⁶ But not until the fourth century did Roman law explicitly address the situation of a free woman who lived in a quasi-marital union with her own slave [see Evans Grubbs 1993; 1995, 273—7]:

Cod. Theod. 9.9.1, 29 May, 326 or 329

Emperor Constantine Augustus to the People:

If any woman is discovered to have dealings in secret with (her) slave, she shall undergo a capital penalty,¹⁰⁷ and the worthless scoundrel¹⁰⁸ is to be handed over to the flames. All shall have the opportunity to denounce the public crime, all shall have the power to announce it to the authorities, even a slave shall have the licence to bring information, who will be given liberty once the crime is proven — though a penalty threatens for a false accusation.

(1)A woman married (nupta) before this law shall be separated from such a union and, deprived not only of her home, but even of the community of the province, she shall lament the absence of her exiled lover.¹⁰⁹

(2)Also the children, whom she had from this union, shall remain in bare freedom, stripped of all marks of rank, nor will they receive anything from the woman's property, either through themselves or through an intermediary under any title of her will.

(3) But intestate succession to the woman's property shall be granted to her children, if they are legitimate,¹¹⁰ or to her next-of-kin and cognates, or to that person whom the judgment of the law admits, so that also anything which that man, who was once her lover, and the children conceived from him appear by some chance to have held in their own possession, is to be joined with the woman's property and claimed by the afore-mentioned heirs.

(4)All these things should be observed in this way even if the woman or her beloved died before (this) law, since even one author of this offense incurs judgment.

(5)But if both parties have already died, we spare the offspring, so that they not be weighed down by the crimes of their deceased parents. They shall be (acknowledged as) her children, they shall be preferred to (her) brothers,¹¹¹ and to her next-of-kin and cognates; they shall be heirs to the remaining inheritance.

(6)Those who commit this crime after (this) law we punish with death. Moreover, those who, having been separated according to the law, have secretly come together again renewing the forbidden union, will undergo a similar penalty, convicted on the evidence of slaves or the office of the specu­lator¹-² or even the information of their next-of-kin.

Given at Serdica on the fourth day before the Kalends of June in the seventh consulship of Constantine Augustus and the consulship of Constantius Caesar.¹¹³

Whereas Constantine's law on the unions of high-ranking men with lowborn women unleashed a spate of imperial legislation on the subject for decades to come, there are no further references to the subject of Cod. Theod. 9.9.1 for almost 150 years. It may not have been enforced, and there may have been few women of status and wealth who wanted to “marry” their own slaves. But in 468, the western emperor Anthemius (reigned 467—72) received a petition from an otherwise unknown woman named Julia, who evidently feared that her marriage to her freedman violated Constantine's law. It is very unlikely that Julia would have approached the emperor spontaneously about the status of her marriage; its validity must have been questioned, and she may have been appealing a charge already brought against her.

Novel 1 of Anthemius, 21 February, 468

Emperors Leo and Anthemius to Lupercianus, praetorian prefect:

[The opening sentences, omitted here, stress the need for the emperor to guide his subjects well, in order to have a flourishing and tranquil state.]

... A certain Julia pours our her prayers at our altars, adding that marriage has befallen her with a man who indeed was a slave of her house­hold, but who deserved liberty because of the nobleness of his character, and she begs our divine majesty that she not be harmed by the fact that the venerable law of Constantine, with the strictest rigor, does not allow a mistress to be inflamed by the embraces of her own slaves. Indeed, she thinks that in her own case it is unfitting to deliberate about those things decided concerning unions with slaves, since she herself did not marry a slave, but a freedman. In particular, (she says) that her own marriage cannot come into blame, because it is clear [that no law has been made] about prohibiting associations (consortia) with freedmen, [for] whatever no law has previously forbidden is nevertheless considered [no evil].¹¹⁴

(1) Therefore Our Serenity has found a double cause for deciding upon cases of this kind, so that confirmation not be taken away from those who are in doubt about (a union) undertaken, as it were, in error, and so that what has been determined satisfactorily and honorably be preserved from now on without any ambiguity. Therefore, first we decree by this edict, that marriages (matrimonia), if similar marriages (coniugia) are proven to have been begun up to the second consulship of Our Divinity, shall not lack legal validity, but may rejoice also that this munificence of our authority has looked favorably on their own security. Thus, if there are any women who, because of the nobility of their birth, perhaps fear anything from an associa­tion (consortium) of this sort, they may throw away the empty weight of their unreasonable fear, nor shall they be afraid that they have done illicitly, as it were, what no laws up to now clearly forbade. They appear thus to have contracted legitimate marriage (iustae nuptiae) with their freedman so that the children born and to be born from them shall undergo no inquiry about the union of their parents at any time, but shall receive the inheritance of their mother and father by the custom of the laws. Also, those between whom a society of this sort has been contracted shall themselves not lose the liberty of making a will among themselves or of succeeding to each other according to the form of the law, nor shall they, because of their marriage, be thought to differ in any way from others about whom the decrees of the law prescribed nothing before this sanction of Our Divinity... [the last sentence is here omitted]

(2) Therefore, wishing to increase the public honor, from this consulship of Our Clemency onward, we forbid mistresses and patronesses to have the ability to enter marriages with their freedmen, in order that the famous nobility of outstanding families not become worthless by the foulness of an unworthy association and not lose, by the contracting of a most vile bond, that which it perhaps obtained by the splendor of senatorial excellence, or a family conspicuous only by the bare brightness of freeborn liberty be dimin­ished by a rather shameless embrace in regard to a woman. Undoubtedly this will be with the proviso that, whatever the divine Constantine decided with his venerable law about associations with slaves, shall be preserved with eternal firmness.

(3)But about those women, who henceforth have entered into vows with their own freedmen, we decree that it shall be maintained by a law that will endure forever that this forbidden union obtain not even the name of marriage, but those execrably aspiring to illicit associations shall be struck by confiscation of all their property and perpetual deportation. Those who are born from an association of this sort shall be deprived not only of the rights, but even the name, of children,¹¹⁵ and shall also be properly assigned to a servile status, so that our fisc shall claim ownership over them.

[The final sentences of the law, omitted here, reconfirm earlier laws about men's unions with slaves and freedwomen and their “natural” children (see I.B.1-3 above) and ask Lupercianus to make sure the law is publicized so that all will know its contents.]

Given at Rome on the tenth day before the Kalends of March in the consulship of our lord Anthemius. Received at Rome on the Ides of March in the same consulship.

Anthemius' law thus relieved Julia (and any other women in similar unions) of anxiety about the legitimacy of her marriage and children, while at the same time it confirmed and indeed went beyond the letter of Constantine's law, by declaring that in the future marriages between patronesses and their freedmen would be just as illegal as those between mistresses and slaves. The enslavement of the children of such a couple, who will become the property of the imperial treasury, is a new touch; even Constantine had not gone that far.

In the sixth century, the Byzantine emperor Justinian enacted a series of laws improving the position of illegitimate children, so that they could inherit in the absence of any legiti­mate heirs [Arjava 1996, 216-17; Beaucamp 1990, 199-201; Evans Grubbs 1995, 282-3].¹¹⁶ Justinian also repealed the senatusconsultum Claudianum [Cod. Just. 7.24.1 and Justinian Institutes 7.24.1].¹¹⁷ The union of a free woman with her own slave continued to be punished, however, as shown by the inclusion of an abridged version of Constantine's law in Justinian's Code [Cod. Just. 9.11.1].