B Remarriage and inheritance

The two laws of Theodosius I penalizing women who married before the end of the mandated waiting period suggest disapproval on the part of the imperial government toward widows with children who remarry at all.

The discouragement of remarriage found in late Roman laws contrasts sharply with the earlier Augustan legislation mandating marriage for Roman women between the ages of twenty and fifty, and Roman men between twenty-five and sixty [see Chapter 2, Part I.B]. However, Augustus' requirement that widows remarry within two years of their husband's death itself ran counter to popular Roman attitudes toward remarriage. The law conflicted with the ancient Roman ideal of the univira (“one-man woman”), the woman who married only once, and evidently there were some Roman women who resisted both social and legal pressures to remarry [Treggiari 1991a, 216-18 and 233-6]. Funerary epitaphs praised the univira, and bereaved spouses declared that they would not remarry, since marital bonds survived beyond the grave [Humbert 1972, 59-75]. But economic as well as legal constraints led many women to remarry, including those with children from their first marriage.

There was a strong feeling in Roman society that property which a wife had inherited from her husband ought to go to the children she had by him, and not be passed on to the husband or children of a second marriage, and concomitantly, fear that a remarried mother would favor her new husband over her children from her first marriage.

The moralist Valerius Maximus, writing under Tiberius, devoted a chapter of his Memorable Deeds and Sayings to “wills which were rescinded” (VII.7), and included a will made by a woman who, according to the author, had remarried at an advanced age simply to spite her children by her first marriage, by leaving her estate to her elderly husband. Such a marriage went against the spirit of the emperor Augustus' recently enacted marriage legisla­tion, which promoted marriage “for the sake of producing children.” The s.c. Calvisianum, a decree of the Senate passed at some point after Augustus' original legislation, even declared that marriage of a man under sixty to a woman over fifty was impar (“unequal”), and said that the couple did not have the right to receive legacies or inheritances and that after the wife's death, her dowry would be confiscated [Rules of Ulpian 16.4; Treggiari 1991a, 78]. The date of the senatusconsultum is uncertain, but was probably not much later than the time when Valerius Maximus was writing [see Talbert 1984, 451].

Valerius Maximus VII.7.4, written c.30 C.E.

Also, Septicia, mother of the Trachali of Ariminum, angry at her children, as an insult to them married Publicius, quite an old man, though she was already unable to bear him children, (and) even passed them both over in her will. Approached by them, the deified Augustus rejected both the woman’s marriage and her final judgment.

On the other hand, one son, the child of his mother's first marriage, praised her for her even-handed treatment of her children by both husbands. He described dutiful behavior of his mother, Murdia, in a funerary oration from around the time of Augustus, which was preserved on stone:¹⁶

CIL VI.10230 (ILS 8394), early 1st c. C.E.

[the beginning of the inscription is lost]

... She made all her sons her heirs equally, having given her daughter her share as a legacy;¹⁷ her maternal love is apparent in her affection for her chil­dren (and) her equal distribution of portions. She bequeathed a certain sum of money to her (second) husband, so that his right to her dowry was augmented by the honor of her judgment. Recalling the memory of my father and consulting that and her own sense of loyalty (fides), she made a valuation of her property, and in addition in her will left me a legacy of certain properties to be taken out of the estate.¹⁸ (She did this) not with the intention of preferring me to my (step)brothers out of some disrespect to them, but mindful of my father’s generosity, she decided that what she had taken from my patrimony by her (first) husband’s judgment ought to be returned to me, so that those things, preserved by her use of them, might be restored to my ownership.

Therefore she was consistent in this, with the result that, having been given by her parents to worthy men, she maintained her marriages by obedi­ence (and) upright behavior, as a wife she became more pleasing by her merits, was held more dear by her sense of loyalty, remained more adorned by her good judgment, (and) was praised after her decease by the consensus of the citizens, since her distribution of shares (in her will) observed a pleasing and loyal spirit toward her husbands, equal treatment toward her children, (and) justice in the truth.

[The rest of the inscription, not translated here, praises Murdia for her behavior toward both husbands and her children, and for possessing the traditional female virtues of modesty, chastity (pudicitia), and wool-working.]

Murdia had taken care to pass on to the son of her first marriage those properties she had received from her first husband.

According to Apuleius, Pudentilla’s older son Pontianus had begged Apuleius to marry his mother, to save her from less amenable suitors and from ill health caused by a long period of celibacy (she had been a widow for fourteen years, until both her sons had reached puberty).²⁰ But after Pontianus himself married, he changed his mind, and opposed the match he had previously proposed. Pontianus then died (Apuleius was initially charged with his murder, but the accusation was later dropped), but his younger brother, Pudens (then a teenager, though over fourteen), brought charges of magic against Apuleius. Pudens was supported by Pudentilla's former in-laws, who had wanted her to marry a brother of her deceased husband,²¹ and by Pontianus' former father-in-law, with whom Pudens was living and whose daughter (his brother's widow) he was intended to marry.²²

The result was an ugly family squabble in court, pitting Apuleius against his stepson Pudens, in which both sides said a number of unflattering things about Pudentilla (who presumably was not present at the trial). The trial was held before the governor of Africa Proconsularis, Claudius Maximus, at the town of Sabratha [Bradley 1997].

New Roman">Apuleius, Apologia 99-100, 158/9 C.E.

(99) [the first sentence is omitted here] For — something I very nearly forgot — very recently when Pudentilla was writing her will, in great ill-health after the death of her son Pontianus, for a long time I struggled against her, so that she would not disinherit him (Pudens) because of his many conspicuous insults, his many affronts. I begged her to destroy the very harsh clause (in her will), already completely written — as god is my witness! Finally, I threatened that I would divorce her unless I was granted my request; (I begged) that she grant me this favor, that she win over a wicked son by kindness, that she free me from all suspicion and envy. I did not desist until she did it. [a few sentences are omitted] I, a stepfather, fought with an irate mother on behalf of his wicked stepson, just as a father (would fight) against a stepmother on behalf of his excellent son, nor was that enough, unless I, with excessive fairness, restrained the ample generosity of my good wife towards myself.

(100) You, hand over to her hostile son the will already made by a mother, as I, whom those men call a robber, preceded every single word with entreaties! Order those tablets to be broken open, Maximus: you will find that the son is heir, that I have been left some small legacy for the sake of respect, in order that, if anything human had happened to her after the manner of mortals, I would have the good name of husband in my wife’s will.

Sometimes a husband would leave his wife a legacy on condition that she not remarry after his death. Such a condition went against the intent of the Augustan marriage legisla­tion, which in fact enjoined widows to remarry within two years of their husband’s death or become ineligible to receive legacies from those outside the sixth degree of relationship. Jurists sought to reconcile the need to promote marriage and child-bearing, as set forth in Augustus’ laws, with the desire to obey the testator’s wishes whenever possible [Humbert 1972, 160—70]. Thus a blanket condition that a woman could only receive a legacy if she did not (re)marry was invalid, but conditions that she not marry certain individuals were valid [D.35.1.63 pr. (Gaius)]. And a husband could specify that his widow receive a legacy if she did not remarry while the children were still little, as it was understood that his concern was for the well-being of the children. The following is from a commentary on the Augustan marriage laws:

D.35.1.62.2 (Terentius Clemens): When a man has left his wife some­thing “if she does not marry away from the children” in successive years, what is the law's view? Julian replies that the woman is able to marry and to take the legacy. But if it had been written thus: “if she does not marry away from the children under puberty,” the law would not apply, since care for the children rather than widowhood would be imposed.

But though there was some popular sentiment against a widowed mother’s remarrying, the only evidence for disapproval of remarriage on the part of Roman lawmakers before the fourth century is a rescript of Alexander Severus to a certain Dionysodorus, a guardian (tutor) of fatherless children who had petitioned the emperor regarding the rearing of his wards tyupilliy.

Cod. Just. 5.49.1, 7 February, 223

Emperor Alexander Augustus to Dionysodorus:

The upbringing of your pupilli should be entrusted to no one more than their mother, if she has not introduced a stepfather to them. (1) However, when doubt has arisen between her and relatives and the tutor concerning this matter, the governor of the province, when approached, will assess where the boy ought to be brought up, having investigated both the char­acter and the association of the persons in question. (2) But if, however, he has made an assessment about where he ought to be brought up, he (the boy?) will have to do what the governor has ordered. Posted on the seventh day before the Ides of February in the second consulship of Maximus and the consulship of Aelianus.

Dionysodorus was involved in a dispute with his wards’ mother and her relatives (cognati) over where the children should live. It is not clear whether the mother had actually remarried, or whether remarriage is mentioned hypothetically, as the one situation where it would be better for children from a first marriage to live elsewhere. Some scholars have suspected that the words “if she has not introduced a stepfather to them” are a Justinianic interpolation, but others accept their authenticity.²⁵ In any case, this was a private rescript without general application, expressing what was probably a widespread view that stepfathers could pose a danger to children from a former marriage, but not imposing a universal policy.

Distrust of stepfathers appears also in a law of Constantine. The law as a whole [Cod. Just. 5.37.22] attacked what the emperor saw as the predatory practices of the guardians (tutors and curators) of fatherless children under twenty-five. Constantine extended a law of 195, which had forbidden guardians to sell or mortgage the rural or suburban estates of their wards, to include any items of value on urban properties owned by the ward as well.²⁶ But he was concerned not only with the malfeasance of guardians, for one sentence of the law is aimed at mothers:

Cod. Just. 5.37.22.5, 15 March, 326 or 329

For the law has looked out for the interests of minors not only against guardians, but also against immoderate and intemperate women, who often surrender to their new husbands not only their children's property, but even their life.²⁷

This law reflects a traditional Roman fear that remarried mothers would favor their new spouse over their children by their deceased husband, and that a stepfather would not have the best interests of his stepchildren at heart. Some mothers themselves took on the guardian­ship of their fatherless children, though classical Roman law did not approve [see Part II below], and Constantine’s law may have been particularly directed at them.²⁸

Several years later, Constantine enacted another law, aimed this time at widowed fathers who remarried [Cod. Theod. 8.18.3, 334]. If children by a first marriage were still under their father’s paternal power (as they would be unless he had emancipated them; see Chapter 1, Part II), then any property they had inherited from their deceased mother (bona materna) would legally belong to their paterfamilias. He was expected to pass it on to them, but not legally compelled to under classical law. Earlier legislation of Constantine had allowed a father only the usufruct (use and possession, but not actual ownership) of bona materna, which he was required to hand over to his children if he emancipated them.²⁹ In his law of 334, however, Constantine deprived fathers who remarried of even the usufruct of bona materna [see Humbert 1972, 401-5; Arjava 1996, 102-3]:

Cod. Theod. 8.18.3, 30 March, 334

Emperor Constantine to Severus, Count of Spain:

It has become known that certain fathers, deprived of the bond of their original marriage, rush to the destruction of their children beyond the pity of blood ties and then, having taken up other marriages, claim for them­selves a greater role in their children’s property. Since they appear to have retained the usufruct in this property, they are confident that they can usurp and subvert it, so that through this (means) no opportunity either of possessing or of bringing suit (over it) is given to those who have remained in orphanhood. Therefore we have decided that no father should think, after he has later taken up marriage, that he ought to claim the right to these things which were from a prior marriage except in the function of guardian, until the minors appear to be of proven age. Moreover, our moderation orders everything to be preserved and restored to them (the children).

Posted at Constantinople on the third day before the Kalends of April in the consulship of Optatus and Paulinus.

Constantine's approach presages the later policies of Theodosius I, who deprived remarried mothers of even the usufruct of property they received from their first husband and required them to hand it on immediately to the children of their first marriage [see Cod. Just. 6.56.4 in Part I.A, and Cod. Theod. 3.8.2 and Cod. Just. 5.10.1, below]. Ultimately, however, Constantine's law was rescinded in 468 by the eastern emperor Leo [Cod. Just. 6.60.4, below].

Disapproval of the remarriage of a woman with children appears also in legislation of Constantius, Constantine's son, regarding a mother's right to revoke half of the amount of gifts she had made to a child who later became “undutiful” (zw^zus). The overriding concern in these laws is the preservation of property left by the deceased parent, which, in the law's opinion, should go to the children of the first marriage and not fall into the hands of either a step-parent or children by a second marriage.

Cod. Theod. 8.13.1 (excerpts), 20 September, 349

Emperors Constantius and Constans Augusti to Philippus, praetorian prefect:

Mothers, if they are confident that they are able to prove that their chil­dren are undutiful, may approach the courts publicly. (1) Moreover, we ordain that a mother be received and heard, who is freeborn, free, or freed,³⁰ by whom the rights of Roman citizenship have of course been obtained, just as they were able to bring a complaint under ancient law, and likewise sons or daughters who were freeborn, freed or Roman citizens with an equal status. (2) We set aside the woman who has married into the bond of a second marriage, and we ordain only to women of one marriage the ability to revoke gifts in proportion to one-half. [a sentence is omitted]

[Paragraphs 3—5 are omitted]

(6) Therefore, we think that we have prescribed enough, even silently, about other women, either of another status or of an abnormal vileness or despicable modesty.³¹ For who is there who would think anything should be granted to these women, when we wish none of these privileges to be granted even to those who have lawfully contracted marriage, albeit a second marriage?

Given on the twelfth day before the Kalends of October in the consulship of Limenius and Catullinus.³²

The emperor whose laws reveal the greatest hostility to remarriage by a woman with chil­dren from a former marriage is certainly Theodosius I, whose legislation reinforcing and extending the mandated period of delay before a widow could remarry has already been seen [Part I.A above]. In 380, he had decreed that if a widow remarried before the end of the mandated period of delay, she could obtain imperial pardon if she gave half of her property to any children by her first marriage [Cod. Just. 6.56.4, at Part I.A]. The next year he removed the possibility of pardon from widows remarrying within a year of their husband's death [Cod. Theod. 3.8.1, at Part I.A]. In 382, he enacted the following law, demanding that a widowed mother who remarried was to leave all the property she had received from her first husband to the children of her first marriage, retaining only the possession of it during her lifetime:

Cod. Theod. 3.8.2, 17 December, 382

Emperors Gratian, Valentinian (II), and Theodosius Augusti to Florus, praetorian prefect:

Women, who have moved on to second marriages and have children brought up from a former marriage, are to transmit whatever they received from the resources of their former husbands by right of betrothal gifts, also, whatever (they received) from the formalities of marriage, or whatever they obtained from their husbands' property from gifts made in contemplation of death or directly by right of will or under title of trust or legacy³³ or as the reward of any generous liberality whatsoever, to the children which they had from the preceding marriage. Or (they may transmit this property) to whichever they like of their children, to whom the mother has believed the judgment of her own generosity should be directed in contemplation of his merits, just so long as we judge them most worthy of such a succession. Nor shall these same women assume or have the power of alienating anything from the same resources to whatever unrelated person they like or successors brought up from the joining of their second marriage: only the possibility of possession till the end of her life, not indeed the possibility of alienating has been granted (to them). For if anything from these things has been trans­ferred by the possessor to anyone whatever, it will be restored to the account balance of the maternal resources, in order that the properties arrive undi­minished and undamaged to those whom we have established as heirs.

[The next two paragraphs, not translated here, say that if a woman has no surviving sons but only daughters, she has the right to succeed to any of her children who die,³⁴ but only to possess what she has inherited in her lifetime; at her death it must go to any surviving chil­dren of her first marriage. If there are no surviving children from her first marriage, she may fully own what she has received by inheritance (or by any other means) and may leave it to anyone she wishes.]

(4)We wish for husbands to be admonished by a similar example both of family feeling (pietas) and law. Though we do not bind them as if by a chain of a rather severely imposed sanction, however we restrain them by the law of religious respect (religio), so that they should know that what is enjoined upon mothers by the necessity of the proposed rule is more readily expected from them (the fathers) by the consideration of justice; so that, if thus neces­sity has urged, that which, for the present, it is fitting to hope for and expect should not have to be demanded from them (later) by the reinforce­ment of a sanction in regard to their case also.

Given at Constantinople on the sixteenth day before the Kalends of January in the consulship of Antonius and Syagrius.³⁵

The final sentence of Theodosius’ law urges that fathers also leave what they had inherited from their deceased wife to their children by her, and hints that if they do not do so volun­tarily, they may eventually be forced to by law. This in fact turned out to be the case: in 439, Theodosius II, grandson of the first Theodosius, decreed that what had previously been “urged” upon men by his grandfather was now demanded by law [Novel 14.2 of Theodosius II, in Chapter 2, Part II.C].

In yet another law ten years later, Theodosius went even further, depriving remarried mothers of even the lifetime use (usufruct) of all the property they had received from their first marriage, which they were to give to the children of their first marriage as soon as they remarried. Exception was made for pre-nuptial gifts, of which they could continue to have the usufruct. Theodosius also alludes to the possibility, allowed by his law of 390, that a widow who declared she would not remarry could undertake the guardianship of her children rather than have a tutor appointed [Cod. Theod. 3.17.4; see Part II.A.3]. Clearly if she later did remarry, she would have to restore what she had received from her first husband:

Cod. Just. 5.10.1, 15 March, 392

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

If a husband when dying has left the usufruct of his property to his wife, and she has entered into second marriage and union, she shall lose the usufruct which she obtained from her previous husband, and shall restore it to her children quickly, from the day on which she married. (1) But if the weakness of infancy still holds the children from her previous marriage and the aid of a tutor does not protect (them), and through an opportunity of this sort the mother has usurped that which had been left, she shall bring the accounts into clarity and shall restore everything, when it is legitimately demanded, along with the appropriate profits.

(2) These things are in regard to the usufruct, which a husband, estab­lishing his final wish, has left to the wife from his own property. But in regard to the usufruct of property given before marriage, we ordain that those things which earlier constitutions decreed are to be maintained.

Given on the Ides of March in the second consulship of Arcadius Augustus and the consulship of Rufinus.

Laws of Theodosius’ sons repeated that the usufruct of pre-nuptial gifts was retained by the remarried mother, unlike other property she had received from her first husband (Cod. Theod. 3.9.1, dated 398, of the eastern emperor Arcadius; Cod. Theod. 3.8.3, dated 412, of the western emperor Honorius).

In the following law, Valentinian III, grandson of Theodosius I and emperor in the West from 423 to 455, deprived remarried mothers of the full benefit of the senatusconsultum Tertullianum. This second-century enactment had enabled women with the ius liberorum to inherit from their children, a right extended by Constantine to cover mothers without the ius liberorum also [see chapter introduction]. Valentinian’s law allowed a mother who remarried only the usufruct of the property a deceased child had received from its father (though she could still fully inherit the property the child had received from others). This excerpt was part of a very long law dealing with various aspects of inheritance and the sources of law.³⁶ The law as a whole explicitly applied the same provisions regarding succession to a deceased child to both mothers and fathers.³⁷ Another excerpt says that a father who has introduced a stepmother into his home may have only the usufruct of property his deceased children obtained from bona materna, but full possession of whatever they received from outside sources [Cod. Theod. 8.18.10].

Cod. Theod. 5.1.8, 7 November, 426

Emperors Theodosius (II) and Valentinian (III) Augusti to Albinus, prefect of the city (of Rome):

(After other matters). A mother who has the ius liberorum³ and, after her son or daughter has died without children, succeeds along with their sister, shall be held by an equal example of the paternal lot, so that, if she has not altered her first marriage bed with a second embrace, she shall acquire every­thing left by her child's death with full rights. But if she has chosen the marriage of another husband, she shall possess with similar firmness the things obtained for the son or daughter from outside (the paternal inheri­tance), but by contemplation of what is humane, she shall possess only the usufruct of the patrimony of the deceased, and shall transmit the ownership to the deceased's brothers. But if a son or daughter who dies has left chil­dren, in any case they shall succeed to their mother or father by the law itself. We think without a doubt that this should be observed also in the case of great-grandchildren. (And other matters).

Given at Ravenna on the seventh day before the Ides of November in the consulship of our lords the Augusti Theodosius for the twelfth time and Valentinian for the second time.³⁹

The late Roman laws, eastern and western, are all concerned about the consequences of remarriage by a widowed mother (or father) for the children of the first marriage.⁴⁰ Widows without children, as long as they observed a twelve-month delay before remarrying, were unaf­fected. Apparently, however, even childless widows were avoiding remarriage, influenced by legal, social and religious factors [cf. Barnish 1988, 45]. The lifting of the Augustan penalties on the childless by Constantine had removed legal compulsion to remarry, and church fathers encouraged even young widows to see their husband’s death as a release from the burdens of marriage and an opportunity to turn to a life of devout widowhood, a state second only to virginity in holiness.⁴¹ Not all approved of childless women refusing remarriage, however, and in 458 the western emperor Majorian attacked what he saw as the self-indulgent and uncivic behavior of young widows. The following excerpts are part of Majorian’s long Novel 6, of which other selections are found elsewhere in this book [Chapter 2, Parts II.B and C].

Majorian was apparently concerned about the decline of the Roman population, perhaps because of the increasing presence of non-Roman “barbarians” in large parts of the western Empire. In his law, he also strongly condemned legacy-hunters (captatores), non-relatives who paid court to wealthy childless people in the hope of benefiting from their wills. The greedy captator is an ancient topos in Latin literature, and it is difficult to know to what extent it corresponds to actual social practice in the late Empire.⁴² It should be noted, however, that Majorian’s claim that childless widows were being taken advantage of by Christian clergy (‘’the pretended religion of importunate persons”) and other non-kin finds support in fourth­century laws and literature. In 371, Valentinian I had decreed that widows below the legal age of twenty-five required their father’s consent to remarry, even if they had been freed from paternal power. According to Valentinian, some widows (presumably wealthy ones) had become the target of intense marriage brokering and even bribery by aspiring suitors [Cod. Theod. 3.7.1; see Chapter 2, Part II.B]. The historian Ammianus Marcellinus, denouncing

what he saw as the decadence of the Roman aristocracy of his day, mentions the cultivation of childless persons by fortune-hunters and also criticizes unmarried women (not necessarily widows) so old enough that, if they had married, they could already have had three children, who instead gad about with artificially curled hair and dance till they drop [Amm. Marc. XIV.20—2]. Ammianus' contemporary, the Christian writer Jerome, provides a similar description of socializing widows who parade in public preceded by their eunuchs and patronize Christian clergy, who are eager for their money [Epistle 22.16]. Both Ammianus and Jerome were playing on ancient satirical themes, best exemplified by Juvenal's long denuncia­tion of women in his sixth Satire, but there was probably some truth to their portrayals. Jerome himself was not above such patronage; indeed his close friendships with celibate Christian aristocratic women, in particular the wealthy widow Paula, led to his eventually having to leave Rome in the face of scandal and possible legal action [see Evans Grubbs 2001].

The clergy, in particular, came in for criticism, since they encouraged women to refuse marriage or remarriage and turn their devotion (and their wealth) to spiritual rather than family matters [see selection from Ambrose in Chapter 2, Part II.B]. Valentinian I, in a law addressed to Damasus, the bishop of Rome, and read aloud in the churches of Rome in 370, attacked “ecclesiastics” who preyed on widows and fatherless female minors (ppillae) in the hopes of gaining benefits either by gift or in the women's will [Cod. Theod. 16.2.20]. Twenty years later, Theodosius I ruled that women could become Christian deaconesses only at the age of sixty, when they had had children to whom they were to give all of their worldly possessions [Cod. Theod. 16.2.27, 21 June, 390]. Like the widowed mothers in the laws above, deaconesses were to have only the usufruct of their property, so that they would not be vulnerable to ecclesiastical legacy-hunters (who were to be sent into exile if they were discov­ered to have extorted a bequest from a dying deaconess). However, Theodosius quickly rescinded his law, which had been intended only for the eastern half of the Empire, as the western church did not have an office of deaconess [Cod. Theod. 16.2.28, 23 August, 390].

By the mid-fifth century, female monasticism was widespread, and donations to the church from aristocratic female benefactors, often widows, had become frequent. Three years before Majorian's law, the eastern emperor Marcian had declared (in response to a particular legal case involving a wealthy woman who had made a priest her heir) that religious women could leave as much as they liked to churches, clerics or monastics, or the poor [Marcian Novel 5, 455]. Majorian's law attempted to regulate both the nubility and the wealth of young women, virgins and widows, whose fecundity he feared would be lost to Rome if they entered a monastic life too early. At the beginning of the law [in Chapter 2, Part II.B], he had condemned the practice of parents consigning their daughters to a life of virginity, and had decreed that women could not become consecrated virgins until they had reached the age of forty, by which time their child-bearing years would be over. In the following excerpt, which echoes Ammianus' and Jerome's depiction of frivolous women, he sets a similar rule for young widows.

Novel 6.5-8 of Majorian, 26 October, 458

(5)    Of course, we are moved by the obstinacy of widows, who having raised no offspring, condemn their own fecundity and the restoration of their family and have refused the repetition of marriage. They do not choose the solitary life so that they may serve chastity (pudicitia) from the love of reli­gion, but from the misfortune of their own childlessness, they choose the vain display of power, seeking out lascivious liberty of living, for which either the pretended religion of importunate persons or the admiration of the clever legacy-hunter applauds them to every license. Calling them back to the path of a more honorable life by an ancient arrangement, we decree by this ever-lasting law that a woman bereaved by her husband's death, (if she is) less than forty years old, as long as she is able to procreate children because of her age, is to marry within a period of five years. For that reason we bestow a grace period of the current five years, so that through the space of a legitimate time of mourning, having put aside her grief, she may have the power of choosing more honorable marriage. But if indeed, she has condemned a worldly life and completely hates the marriage torches, persisting in widowhood when the five-year period, as has been mentioned, has been completed, immediately she shall divide her own properties with her full brothers or sisters and their children or her parents or relatives, through whom the origin of the family is restored, or, if by chance these (relatives) are lacking, her patrimony shall be shared with the imperial fisc. She is to know that within the five-year period of that time which we have assigned for mourning and deliberation, she shall alienate nothing from the afore-mentioned six-twelfths, which Our Serenity has decreed is to profit her parents or relatives, (but) content only with the usufruct of living, she will then be able to prove that she has rejected second marriage by the zeal for chastity, since she has been generous toward her relatives.

(6) But the rule is different for those women, who rejoicing in offspring they have raised, for that reason do not move to a second marriage, in order to preserve the affectionate memory of their deceased husband with solici­tous sense of duty (pietas) in rearing and enriching their children. We release them from the condition of the pronouncement related above, and they have received the freedom of (re)marrying, if they have preferred this, in such a way that they look out for the children brought up from their former marriage — if however the party consisting of the children has wished this — and have provided a guarantor who promises with a clear guarantee that the entire body of their betrothal largesse will be safe. (7) Of course, to mothers of continuous widowhood we open up their power of choice to such a degree that they either furnish their children, who have been placed in the lap of their indulgence, with gifts in proportion to merit while they (the mothers) are still alive, or make them heirs by their final will.

(8) Of course, we abolish that part of the divine constitution by which it had been permitted to mothers that they have the free ability of conferring the greatest portion of the sum of their betrothal largesse on one child, if they wished.⁴³ In regard to which we order that children succeed without partiality, if indeed that gift is rightly numbered among the paternal prop­erty, which the husband brought to his wife at the time of marriage. But if an external heir and layer of traps has stealthily crept up on the mother, against the scruples of blood tie and the rule of family feeling (pietas), what­ever has been given by her or left or alienated and transferred with impious intent — without there being just reasons for disinheritance, which undoubt­edly the one who seems to be preferred to the children will have to prove — all that will be claimed by those same children.

Majorian's demand that childless widows remarry within five years was out of keeping with contemporary sentiment, as well as unenforceable. His successor in the west, Severus, repealed almost all of Majorian's long Novel 6. Severus ruled that whether or not she remar­ried, a mother had only the usufruct of her betrothal gifts, which were to be retained for her children. He did agree with Majorian that mothers were not to favor some of their children over others in bestowing their pre-nuptial gift. Mothers who chose to remarry did not have to provide a guarantee that the pre-nuptial property would remain safe, since, Severus said, such a requirement was difficult to enforce and the children already had sufficient legal means available to them to claim the pre-nuptial gifts [Severus, Novel 1, enacted at Rome, 20 February, 463].

In the east, the emperor Leo (reigned 457—474) also enacted legislation on remarriage. A law of 468 says that whether or not he remarried, a man had a right to the lifetime use (usufruct) of bona materna, property left by his first wife to their children. This overturned the law of Constantine that had penalized fathers who remarried [Cod. Theod. 8.18.3, see above].

Cod. Just. 6.60.4, 1 September, 468

Emperor Leo Augustus to Callicrates, praetorian prefect for Illyricum:

Cutting back all ambiguous confusion, we ordain by this clear and succinct law concerning the usufruct of maternal properties that there is no difference if a father has wished to remain in the former marriage, from which he had children, or has introduced a stepmother to his children. The laws which were enacted concerning bona materna have their own validity. (1) Therefore fathers, even if they have moved on to a second marriage, without a doubt ought to have the usufruct of maternal properties. Nor can any improper objection or accusation against the fathers lie open to the children or anyone acting on their behalf. Given on the Kalends of September in the second consulship of Anthemius Augustus.

Four years later, Leo restricted the amount that the spouse of a remarried parent (mother or father) could receive, so that no child of the prior marriage would receive less than the step-parent:

Cod. Just. 5.9.6 pr.-2, 27 February, 472

Emperors Leo and Anthemius Augusti to Erythrius, praetorian prefect:

By this edict that will endure forever we ordain that, if a father or mother has moved on to vows of a second or third or further repeated marriage, when there are children born from the previous marriage, it shall not be allowed to leave more to the stepmother or stepfather, by will, even without writing, or by codicils, or by right of inheritance or legacy, or by title of trust, or to confer, in the name of dowry or pre-nuptial gift or by a gift made in contemplation of death, nor by gifts drawn up between living spouses (which, though they are forbidden by civil law when the marriage is intact, however are accustomed to be confirmed for certain reasons upon the death of the giver⁴⁴) than to a son or daughter, if any has survived. (1) But if there are more children, with each having equal shares, it shall not at all be allowed that more be transferred to their stepfather or stepmother than what has come to each one of them. (2) But if, however, the above-mentioned possessions have gone over to the same children in unequal portions, then also it shall not be permitted for the testator to leave or to give or to confer under title of dowry or pre-nuptial gift more to their stepmother or stepfa­ther than the son or daughter has to whom the lesser portion has been left or given by last will. So also, the fourth part, which is owed to children by the laws, shall in no way be diminished except for those causes which rule out complaints of “undutiful will.”⁴⁵

[The rest of the law is not translated here]