A Repeal of the Augustan penalties on celibacy
In 320, the emperor Constantine repealed the penalties on the unmarried and childless enacted by Augustus more than 300 years earlier [Chapter 2, Part I.B].
Constantine’s motives for enacting this law have been much discussed. Given the early date of the law, it is likely that he intended mainly to benefit the upper classes of Rome (especially the senatorial aristocracy), who had always hated the restrictions of the Augustan law, rather than Christian adherents of asceticism (self-denial and sexual abstinence), who were still very rare in the western Empire in 320. Christian ascetics would also have benefited, however, and this law may have contributed to the growing popularity of asceticism in the fourth century [see Evans Grubbs 1995, 103-39].Cod. Theod. 8.16.1, 31 January, 320
Emperor Constantine Augustus to the People:
Those who were considered celibate under the ancient law are to be freed from the threatening terrors of the laws and are to live in such a way as though they were among the number of married (and) were supported by the bond of matrimony, and all are to have an equal condition of taking whatever each one deserves. Moreover, no one is to be considered childless: the penalties proposed for this name shall not harm him. (1) We determine this matter also in regard to women and we release from everyone indiscriminately the commands of the law which were placed on their necks like yokes.
(2) But the usurpation of this benefit will not lie open to husbands and wives between themselves, whose false blandishments very often are scarcely even contained by the opposing rigor of the law; but the ancient authority of the laws shall remain among those persons.
Given at Serdica on the day before the Kalends of February (Jan.
31); posted at Rome on the Kalends of April (April 1) in the sixth consulship of Constantine Augustus and the consulship of Constantine Caesar.24Although Constantine removed the restrictions on the right of celibate and childless men and women to inherit from those outside their circle of close relatives, he did not repeal another provision of the Augustan law which said that childless couples could not inherit more than 10 percent of each other’s property. His refusal to do so, and his disparaging reference to the “false blandishments” spouses might use on each other, adhere to traditional Roman concerns that spouses would be mercenary or over-indulgent toward each other (cf. the ban on gifts between spouses during the marriage in Part I.E). The restrictions on the right of childless spouses to inherit from each other's will were not repealed until the early fifth century, but individuals could petition the emperor for the ius liberorum (“right of children”), which would enable spouses to inherit from each other by will.25
In the eastern Empire, the nine-year-old emperor Theodosius II abolished the provision of the Augustan legislation (here called the “Papian law”) which had limited those without the ius liberorum to taking only 10 percent of each other's property by will. Both of the following excerpts26 bear the same date and are addressed to the same official, indicating that they were originally part of the same law, which was later divided in two by the compilers of the Theodosian Code [cf. Cod. Theod. 3.5.4. and 5 in Part II.B].
Cod. Theod. 8.17.2 and 3, 4 September, 410
Emperors Honorius and Theodosius (II) Augusti to Isidorus, prefect of the city (of Constantinople):
(8.17.2) We decree by this law for perpetuity that the policy of (inheritance of) 10 percent between husband and wife according to the Papian law is ended, and, though they have no children, they can inherit in full from their wills, unless by chance another law has reduced what can be left behind.
Therefore, after this, husband and wife may leave to each other just as much as their surviving love has required. class=a5 style='margin-left:0cm;text-indent:18.0pt;line-height:105%'>(8.17.3) No one shall seek the ius liberorum from us after this, because by this law we have conveyed it to everyone.Given on the day before the Nones of September in the consulship of Varanes, v.c.27
Eighteen years later, however, Theodosius II reiterated the traditional Roman rule that spouses did not inherit from each other by intestate succession when they had surviving kin.28 But it was not until the publication of the Theodosian Code in 438 that Theodosius' legislation of 410 became law in the western Empire (which was ruled by Theodosius' uncle Honorius from 394 until 423 and then by his nephew Valentinian III until 455). Even then, it appears that some childless couples did not realize they could make each other heir by will. In 446, a law of Valentinian III specially addressed the case of a certain Leonius, a man of high rank who had petitioned the emperor to allow him to inherit in full from his wife Jucunda. The couple had made a properly witnessed joint will to this effect, and had previously petitioned for the grant of the ius liberorum, but Leonius was still unsure of his right to inherit.29 Despite the repeal of the Augustan legislation and the tendency of spouses even in the classical period to pool resources [see Part I.E] and despite the fact that husbands in late antiquity took on more of the functions of the classical tutor [Chapter 1, Part III.E], the legal idea that husbands and wives were not kin to each other and did not have mutual inheritance rights continued throughout antiquity.30