Leo VI's Legislation of 907 Forbidding Fourth Marriages: An Interpolation in the "Procheiros

Nomos" (IV, 25-27)

Author(s): Nicolas Oikonomides
Reviewed work(s):
Source: Dumbarton Oaks Papers, Vol. 30 (1976), pp. 173+175-193
Published by: Dumbarton Oaks, Trustees for Harvard University
Stable URL: http://www.jstor.org/stable/1291394 .
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LEO VI'S LEGISLATIONOF 907

FORBIDDING FOURTH

MARRIAGES
AN INTERPOLATION IN THE
PROCHEIROS NOMOS (IV, 25-27)

NICOLASOIKONOMIDES
 AVING outlined the quarrel generated by Leo VI's fourth marriage
(p. 161ff.), I shall now concentrate on certain legal or legalistic aspects
of the problem.
It may be useful to begin by reminding ourselves that the Church Fathers
who condemned a third and also subsequent marriages in the most downright
manner seem to have been uncertain about the penances that should be
imposed in such cases.' Although they required "repentance by acts,'"2 they
never made it absolutely clear whether the dissolution of an illicit marriage
should be considered as a conditio sine qua non for receiving back into the
Church the person who had contracted it. And, finally, although they con-
stantly referred to third and subsequent marriages, which were tantamount to
"polygamy" in texts prior to the tenth century, they never mentioned a
fourth marriage expressis verbis.4
These loopholes in canon law had been exploited during the tetragamy
quarrel in order to find arguments to support Leo VI's fourth marriage. They
are all purely "legalistic" and, in the case of the tetragamy, both parties
basically agreed on the interpretation of the canonic legislation. The only
disagreement was as to whether or not a special dispensation (otxovopia)should
be granted to Leo VI in order to permit him to enter the church again without
requiring him to separate from his wife.5 But this particular question, and the
magnitude it reached, once again raised the whole problem of the individual's
right to remarry-a thorny issue over which canonical and civil legislation
were long in disagreement.6
Where did civil law stand on this issue?
1 St. Basil, canons 4, 50, 80; Council of Neocaesarea, canon 3; St. Gregory Nazianzenus, Oratio 37
(PG, 36, col. 292 B).
2 St. Basil, canon 4; Neocaesarea, canon 3.
3 Canonical collections are inconsistent in
respect to the degree of acceptability of third marriages.
One version of the hanonikon of John Nesteutes of a relatively late date stipulates that a third marriage,
although carrying a penance of five years, should not be broken, unless the partners had children from
previous marriages: G. A. Rhalles and M. Potles, X1vraypca Trv SecafV KxalepCV Kav6vcawv,
I-VI (Athens,
1852-59), vol. IV, p. 438; for the date, see E. Herman, "I1 pii antico penitenziale greco," OCP, 19
(1953), 70-127, esp. 108-9. On the other hand, an anonymous canon found in a 14th-century manu-
script requires the dissolution of all third marriages and orders a light penance: B. Bene'evid, "Monu-
menta Vaticana ad ius canonicum pertinentia," Studi Bizantini, 2 (1927), 129.
4 We should not take into consideration here the canon attributed to the Patriarch Nicephorus I
of Constantinople (806-15) formally forbidding fourth marriages: J. B. Pitra, luris ecclesiastici
Graecorumhistoria et monumenta, II (Rome, 1868), 340. It has been demonstrated to be a much later
text, probably of the 13th-14th
' century: M. Jugie, "Notes de litterature byzantine, III. Les canons
disciplinaires attribu6s Saint Nic6phore," EO, 26 (1927), 419-20.
6 See Nicholas I, Patriarch of
Constantinople, Letters, ed. R. J. H. Jenkins and L. G. Westerink,
DOT, II (Washington, D. C., 1973), 236; Nicholas Mystikos explains to the Pope that a dispensation
cannot be granted when a sinner (in this case, Leo VI) has not yet ceased from committing his sin. It
seems that this theory about dispensations (only post factum) constituted an important precedent in
legal thinking in the Eastern Church: P. Ral, "L'6conomie dans le droit canonique byzantin des ori-
gines jusqu'au XIe siecle," Istina, 18 (1973), 311.
6 J. Zhishman, Das Eherecht der Orientalischen Kirche
(Vienna, 1864), is the classic work on the
question of the right to remarry as conceived by the Eastern Church. Particular aspects of this question
have been developed by E. Herman, EOXil1rri Sty&pcov,OCP, 1 (1935), 467-89; idem, "De impedi-
176 NICOLAS OIKONOMIDES
The Testimony of Contemporaries
Before examining civil legislation as it has come down to us, it will be helpful
to look into some of the texts that are relevant to our purposes-texts written
in the heat of the quarrel, in particular by Arethas, archbishop of Caesarea,
who was not only a great scholar and humanist' but an authority on canon law
as well.8
A. In 906, Arethas was strongly opposed to the tetragamy. He wrote to
Leo VI with whom he was on fairly good terms and tried to convince him that
his fourth marriage should be dissolved. He stressed the lack of precedents for
such an affair stating that "a fourth marriage was unheard of,"9 and went on to
support his statement: "So I say that neither the Fathers, nor civil laws can
be cited for our purposes; which one of them has ever mentioned explicitly
a fourth marriage ? ... On the contrary, those who purged the old [laws]
condemned the third and thus completely rejected the following; and St.
Basil would not even give the name of marriage to any union after the second.
Is our Emperor going to commit for the first time an act shown to be most
improper by the Purification of the Civil Laws which insulted and rejected
the previous marriage . . ?"10
B. Sometime later in 906, Arethas addressed a second letter to the Emperor
on the same subject and used similar arguments, urging him to "respect, if

mentis matrimonialibus secundum codificationes iuris ecclesiastici recentes 'orthodoxorum,"'" OCP,

3 (1937), 247-48; idem, "De benedictione nuptiali quid statuerit ius byzantinum sive ecclesiasticum
sive civile," OCP, 4 (1938), 189-234; J. Darrouzes, Documents inddits d'ecclidsiologiebyzantine (Paris,
1966), 273 (a new text by the 11th-12th-century author Nicetas of Ancyra). One should also refer to
the recent synthetical work of K. Ritzer, Formen, Riten und religi6ses Brauchtum der Eheschliepung in
den christlichen Kirchen des ersten Jahrtausends (Miinster, 1962) (French trans. under the title: Le
mariage dans les Eglises chrdtiennes du ler au XIe si9cle [Paris, 1970]). Cf. also P. I. Panagiotakos,
III. T6 TOWV1KOV
'EKKv A tao-riKo0 AlKaiOv,
567-72;
iaiarilaa A{KaIOV T-ri 'EKKA1afaS (Athens, 1962),
and the detailed
tro T
bibliography in A. Christophilopoulos, AfKatov,
'ETA7=VK6v 'EKKATnatortK6V
II (Athens,
1954), 159-60. Scholars who wrote on the tetragamy quarrel have also studied the legal foundations
of the arguments of both sides; the most comprehensive study is by N. Itsines, Patriarch Nicholas
Mystikos and the Fourth Marriage of Leo VI, the Wise (doctoral dissertation, 1973). A detailed list of
second, third, and fourth marriages in Byzantium from the 10th to the 15th century is given by R.
Guilland, "Les noces plurales a Byzance," Byzantinoslavica, 9 (1947), 9-30 (reprinted in idem, EtByz
(Paris, 1959), 233-61. It is interesting for our purpose to remember that in the 8th century Con-
stantine V had married three times with no major problems arising from this fact, and that at the
end of the same century Constantine VI's marriage to Theodote had already created a turmoil inside
the Eastern Church: Theophanes, Chronographia, ed. C. de Boor, I (Leipzig, 1883), 443, 469-70; cf.
v. Grumel, Les regestes des actes du patriarcat de Constantinople, 1,2 (Istanbul, 1936), no. 368.
P. Lemerle, Le premier humanisme byzantin (Paris, 1971), 205-41.
8 Patricia Karlin-Hayter, "Arethas et le droit d'asile," Byzantion, 34 (1964), 613-17.
9 R. J. H. Jenkins and B. Laourdas, "Eight Letters of Arethas on the Fourth Marriage of Leo the
Wise," 'EAXTV1K&, 14 (1956), 356: text in Arethae archiepiscopi Caesariensis scripta minora, ed. L. G.
Westerink, 2 vols. (Leipzig, 1968, 1972), II, 73, line 30-74, line 1: 76b8 r-raprov o0 KaT& rrapotpfav oOrr'
6A7cp TwIl 76ycp TrpourrwopoPEvov.
10Jenkins and Laourdas,op. cit., 356. I give a more detailed English summary of the passage,
which can be found in the Greek in Arethae scripta minora, II, 75, lines 1-19: 'AXA&y&p dKptCS~ OKo-
. EV OIX lepol
oi v6pot -rroXrlTlKOI 1Sar&ypaTa yp(0v-
woUvrt.. o068 -rrEplTCrOV
TrpoKEtgIVV
TrovaVTifoV OvVo0
KAOc?'TOhT•Equ y rrarpes,
...
rES. y6p rTS AOV; TObs T6V W1Oato1s cva-
"ToO ri -ro Tro0'TIov0,1TOr5TraprTOV Korrcov6paatr
Ka3&paVTES 8iapoA' T6 X6PEVOVwr&prav &EcKOpKl0crv, BatlAdeico
l.v6,&
O•ip" ITrEpEK-
T"
SoKEI.8 otyapoiv Kal-WoA0rtK
V
eao6vra 6 pftpov Trj 8tyapfacoIKS t
TorpfTrov TO- yIlpOV OeapVW1vtv
Tn •oT UWpopl•pat'T cwaCe
&ve
v6po -r. rov01ipo1VyovpLvo1vy&pov O3pet Kald&mrorpfpetdrrowclST6aov ...-ro*-rov
=vcn&Sapot5
iKrrarp?t aof, Tr' =z3' ....
fjpa&5
'OnJoKp(rropt
 LEO VI'S LEGISLATION ON FOURTH MARRIAGES 177
not that Purification of the Civil Code effected before you [became emperor],
at least your own work, the noble and wise decisions which you yourself once
made on this subject.""
C. In February 907, after having banished Nicholas Mystikos and the metro-
politans, Leo VI urged Euthymius to become the new patriarch, for he knew
that Euthymius would not insist on his separating from Zoe. He managed to
overcome Euthymius' reluctance by means of a threat. With the support of
several learned men he intended to issue a new law allowing third and fourth
marriages which, if enacted, would be heresy since it would openly contradict
ecclesiastical legislation. It was in order to prevent this law being put into force
that Euthymius accepted the patriarchate.12
D. In 907, the Patriarch Euthymius and the metropolitans who gathered
around him declared to the Emperor that not only fourth marriages but
third ones as well were inadmissible and illegal, and thus prevented him from
issuing a decree permitting them.13 This declaration must have been promul-
gated not long after Euthymius became patriarch, since it was one of the con-
ditions under which he accepted the position.
E. Sometime after Euthymius became patriarch, probably in the third
trimester of 907, Arethas returned from exile to Constantinople and entered
into contact with the new Patriarch.4 This was a spectacular about-face for
the leader of those who had previously opposed any kind of dispensation,
and explanations presumably were demanded. Arethas first wrote privately to
his friends and former followers, to his own pupil Nicetas Paphlagon, for
example, taking a rather strong stand against the Emperor's fourth marriage,
and continued to express his opinion that a divorce followed by a penance
would be a fair solution. Obviously a dispensation had not yet been granted
to Leo.'5 This, however, was done eventually by a synod in which Arethas

11Jenkins and Laourdas, op. cit., 360. Text in Arethae scripta minora, II, 90 lines 24-27: aiScrel-rE,
ElKaiiip "-rihv
rrp601pcv&vao6&apoitv "-r-5i
TrrO~tKu-r
E
3CFlSaOC~Fa5, o6v ai',)-r-o0ro 7-6 41rATEpOV
d0A"' gpyovKai-ra&s
KOT' KETVOTrEpir TrV KaI ccbqpovas.
12 TPOKtPlVCOV yEvvaias &woqc&oFlt
Theophanes Continuatus, p. 371 wTrovrip6v); Symeon Magister, p. 709 (atpE rrtwoticratKai
Georgius Monachus, p. 866 (v61pov KKa ~KsTvatl);Vita Euthymii patriarchae CP, ed.
v61iov);
Patricia (apcpEtv v61oV
Karlin-Hayter (Brussels, 1970), p. 97, line 32 (KcapXpt alpcrEcosKxrav-r1crco); and Blastares,
Syntagma (see following footnote).
13 Grumel, Regestes, no. 626; J. Hajjar, Le synode permanent dans
l'dglise byzantine des origines au
XIe sicle (Rome, 1962), 112 note 144. Matthaios Blastares, Syntagma, F', chap. 4: Rhalles-Potles,
op. cit., VI (1859), 159: 85 Kai -r6v pacrtoia Ecrwricratipo6iEvov Kai pXpt TroJ e-rdp-rov p3ajSpo0 wapa-
-rivEcrSat -ro•S oAophvotS -r& ovvoiKyicrt, o0X Ka
Treai)
Elvatip-r&-rC)v rwArst6vcov
orroV-i,
81tEKC1vEcrEv,
"-ilv-r'mpayapav,
wcA a'dJ&
-ilv14
-rptylalfavC
&Sl-rov &pX'XEphcav tca-rv6p•voS.
Arethas was banished to Thrace on February 2, 907; there he found the time to compose a commen-
tary on a canonical corpus (codex Vallicellianus 79 [F 10]), in which a scholion, obviously referring
to his own exile, reads as follows: sE 5flS5oviv KarTEavfOTaTaatT-rCov Ka KaKCCrE1
&pXtEp~coV
Trpo-rCilcpeVot
Kiti6acrto(Vita Euthymii, 205). On this manuscript, see Anna Meschini, II codice vallicelliano di
Areta, Universita di Padova, Istituto di Studi Bizantini e Neogreci, Quaderni, 4 (Padua, 1972). The
Vita Euthymii, 103, also states that Arethas asked to return to Constantinople after the fame of
Euthymius' virtue had reached him; in other words, after Euthymius had given tangible proofs of the
policy that he meant to follow as patriarch.
15 Arethae scripta minora, I, 306-11, 312-14, 315-19. These letters of Arethas show
very well that
Leo was not granted a dispensation immediately after Euthymius' accession to the patriarchal throne.
Also, the Vita Euthymii, p. 109, lines 21-23, tells of Leo's admission into church not only after Arethas'
return to Constantinople, but also after the adventures of Nicetas Paphlagon, who quarrelled with
178 NICOLAS OIKONOMIDES

participated, and new explanations became necessary. Arethas wrote two

orations; in the first, and lengthier, he addressed the laymen; the second, read
shortly after the first, was addressed to the bishops on St. Michael's feast,
that is, on 6 September or 8 November 907.16 The arguments in both orations
are more or less the same, and parts of both texts are identical. One of the
arguments, repeated almost in the same words in both, reads as follows:17
"[Leo VI] openly descended to entreaty, attempting by every means to win
us with his prayers and in the most pathetic terms begging that his fault alone
be condoned, while promising to prevent others from doing similar deeds.
This, after all, was our main concern and for that reason we hastened to re-
strain and prevent this act [because we thought] that it would be a great
accusation against the ruler if he was believed to go as far as [to make] a law
for his subjects out of the work of the Almighty. But since this was his attitude
towards me, since this was what he was about to do and accomplish, what was
I to do next in the very interest of peace ? Drive him by my harshness to
despair and to some further irrevocable action? ..."
This is the text as it appears in the first oration. The second contains a
variant that is important for our purposes. Instead of the phrase "this was
what he was about to do and accomplish," we read in the second oration
"since this was what he promised and accomplished."'8sWe may thus deduce
that whatever Leo's promise was when the first oration was read, it was
fulfilled shortly afterward, before the second oration was delivered.
F. The next text we shall discuss was certainly written after Leo's death in
912, most probably after February 914.'9 Nicholas Mystikos, restored to the
patriarchate in 912 and regent since June 913, had been ousted from the

Arethas over the tetragamy issue and retired to a cave in Medeia, near the Black Sea. He was arrested
sometime thereafter by the strategos of Thrace, since he was thought to be about to desert to the
Bulgarians; brought to Constantinople, he was put on trial because of his writings against the Emperor.
He finally escaped imprisonment due to the personal intervention of Euthymius.
18 Arethae scripta minora, I, 1-12 and 13-18.
17I am quoting from the English translation of the first oration made by Patricia Karlin-Hayter,
Byzantion, 31 (1961), 288-90; however, I have modified parts of it in my efforts to follow the text
as closely as possible, often at the expense of style. An important change in the interpretation occurs
toward the middle of the quotation, which in Karlin-Hayter's translation reads as follows:
"...
while promising to keep the rest in restraint. This after all was our concern, to cut off [generalized
moral relaxation] as the most damning accusation that can be brought against a ruler, if, at least, one
believes that the ruler's job is to stand as law to his subjects." I am quoting here the Greek text
(Arethaescripta minora, I, p. 7, line 23-p. 8, line 5) with the addition of only one phrase from the second
oration (ibid., p. 16, lines 18-19, here in brackets), because I think that this sentence is necessary
for a better understanding of the text, and that it may have been omitted in the first oration by the
scribe because of the homoeoteleuton:wprp6 wrrpiptavc&dKEoKAK6Tra,
tK'reSliav 6 OTOtOi-
wTavroarrr lpa;
tIEVOVTas vTrE*(Faiv Kai 1Ta*Oav i9Eetvhjv &q4ra pcovhjv
tV rfhv rr'a*rr4i6viiv aruyyvcbp1vat-roOqav,-ro~s
r& Ka0 i s
[fK [pd6ftito-ra fis KasiW8V
K t'8 rwpriv vaxantriLewtv
5'6"d oous w1TXEtV rotarra wapeyyu1T
ytOarOV6V EIKSwKACtla -rt KorrpXovrn, t ye -r6-ro0 KpEfTTrovoS
c s pEvov" rhTv pyov
Kcd] VaSat
OTo-rT• KsrEo'tiE•O8asV, Kcd-raoOTra o K-rra-
sIS v6pov 1Tpo3aivetvy -rc@"rrK6co A'oirro -roTrov
TSTrorr
SK65,urata.
1 S-rf lpot 5taySvol•VOU gl6VOV aKATp~$s
-rE-rESEKFro&,riva Trp6 arr'S, yEvkSGat;cKAlrpbv
wp&daVTroS
9(pEaSat; Kals d6yvcoatvI Kc- TrlS 8pcaai TI-rvc"TVV SIp?ivrS
rrph v-ro'i0VTSv
ocOErT
aovVoSav v irt;
18Arethae " rK
scripta minora, I, p. 16, lines 23-24: Kc -roaT-ra Kd
m KcdKraTwp&gavTroS.
19 This latter date is proposed by Westerink in Arethae scriptaworayysitAakVOU
minora, I, 122. It may be added here
that the passage on p. 143, lines 14-16, is addressed ironically to Nicholas Mystikos who, because of
the general political circumstances, is adopting a more conciliatory attitude. Therefore, there is no
reason to assume that this text was written before Leo VI's death.
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 179

palace after Zoe's successful coup. He had written a pamphlet giving twenty-
nine reasons as to why the fourth marriage of Leo VI should not be condoned.
It is obvious that this pamphlet, written after Leo's death, was aimed at the
metropolitans who had granted the dispensation in 907. Arethas, who was one
of them, wrote a rebuttal that has come down to us. Nicholas' arguments are
quoted verbatim and are followed, each in turn, by Arethas' refutation.20
[IV 25. Nicholas] "To those who say that 'for the Emperor alone a fourth
wife has been condoned, while for other persons this has been forbidden, and
a law has been drawn up with fearful penalties,...,"21 Nicholas answers by
quoting from the New Testament suggesting that one should first judge and
discipline oneself before judging others. "If what the law says22 it says to
those who are within the law, either he who lays down the law cares for the
keeping of it, and then he too will be under the law and it will be necessary to
obey him; or he is the first to make a mockery of his own law by tossing its
command contemptuously aside, and then how can he fail to encourage his
subjects to transgress rather than to abide the law ?"23
[Arethas] You are a hypocrite. "If you convict of transgression the first
author of the law"'24 you should also convict Paul who condemned circum-
cision and yet circumcized Timothy. Among other things, you ignore "that on
occasion the beginning and origin of laws is nothing but circumstances looking
like something unlucky to the human way of life. As someone said, laws were
laid down because something not allowed was committed; that is to say, they
were meant to keep the citizens from the improper action henceforth, but
without altering what has already occurred.''25 Following are examples taken
from the Old Testament and from the Council of Trullo.
"But things being so, what reproach, if you are sensible, could you make to
the Emperor if he, ignoring what one should do, entered into something that
was not until then condemned, but debarred his subjects therefrom by means
of his law ?"26 You too are responsible for the Emperor's misdoing, because
20 This text was first published with an
English translation by Patricia Karlin-Hayter, "New Are-
thas Documents IV," Byzantion, 32 (1962), 387-487; and then by Westerink in Arethae scripta minora,
I, 122-77. I quote here Karlin-Hayter's translation, modifying it when necessary, and the Greek text
as established by Westerink.
21 Arethae scripta minora, I,
p. 171, lines 12-15: "Op-r rop6o MyovraS <dtrrl6vov PaaiMcosuovyKE-
-to5 TOtO
XcoPnralf~ Terr&prq yap-ri, w9- 5B 9opSp vrv &rri V EXCOV
9KT6$Eiran>. rr&vAomrrCv&TrEipil-ratwpoircb'crV Klc
V61pOs
22Ibid., lines 21-27: Eli 6era6 v6io MyEITroTSv -rT'v6pcp•aAET, EliV 6 -r6vv61iovrTi,9 "rfS tTOO v61iov
1rEqp6v-riKs go-rai Kl aiOrr6S rr6 r6v Kil &VayK1&dKOi5ElV CrOTO sEl6 ?pov T6
q,(5a~iS, v61iov p
1TpC'0roSa/-•rT6
to0 oIKSIOU V6pOU Trf-raypawoit-rai it 'CV rrap 9aaOV ppiyE r•Tv wTapayysAfav,T wCs oiX1 paWov iwp6s
rrcap&•atv 1 rrp6s auvTripqcrtvToO v6pov TrpoTrpkerresac rodis
23 A similar
argument is repeated by Nicholas in IV, &KpoaT•,;
26 (ibid., p. 124): if a fourth marriage is con-
doned for one emperor, it should be condoned for all emperors, and inevitably this unsound principle
will be followed by the people, the more so as the legislator himself does not abide by his law.
24 Ibid., p. 172, lines 2-3: s
wrrapapd•scosKp{ViSE7T6v rrpCO0'5
TAKTr•EiK6iTa T6V v6pov.
25Ibid., lines 13-19: 6-rT rITv v6pcov sr'6a-r
r.T &PX1 Kcd y vSosa oKa ,K6Aooii6v WX TrpaypT6rrcov
rspio-racots, Tr6
poip
"rrpoKO vlO Ir•i Ka-r'
v 0rrovopuo 1
' 4K y&p TOO rTi v oO
&vSpcb'rroUv
sicb'cc. rrp'rTTEo'Sai
TrpoO'PKEv (6 Etrrcvrrov)ol v6poi s
-rO r9av , iA&TrEroSai r6 6 T
6ija&i &rT roroiM
6s woTSU-rwo;Pboi
6SoiaarTEs?6-
AEsvoIt &dAXX' KaIT6 (p9•qa v Agq)avilOVrEs.
6 drraCflatov,
26
Ibid., p. 173, lineso1/XI
3-7: TrrSi6l
a-rara, riva El hvaTroA&Xo15Kcd alXai, sI
&A•A' rrp65 pipitv, acoppovoils,
r6 "rp6Too pih86?av TroTs qa*AotiSwrrrysEaSati
arOr6S pv &yvofa OBovros T~ 8' OmrrlK6CP
wrravsiAE-ro, it&-TO
v6pov o TaraTov 'oO
a-Tre-X•EO•V;
180 NICOLAS OIKONOMIDES
of the counsel you gave him. "Then can any reproach subsist against him,
and not rather the highest praise if, after recognizing how he himself was
caught-by your former counsels, that is to say-by law he protects his sub-
jects from the same reproach ?"27 You say that "not freed from his sin ... he
becomes law-giver! But know this, if he had relied on what you said and had
not enquired further of those who have gone into the matter more exactly and
more wisely than you did-those [same persons] whom you are now caught
to offend-even this [i.e., the law] would not have materialized. But, as it is,
he examined with wisdom the arguments of each, and, abominating your
harshness, for which there is no authority, and delighted with the mildness of
the others which conforms with the Truth and with the Fathers, he embraces
the mean, choosing cleverly from both. On the one hand, he does not repudiate
his wife, because there was no established reason compelling him to do so. But,
on the other hand, since some of the popularity hunters who are always glad
to attach themselves to vain innovations were scandalized, he draws up the
law for his subjects .
..."28
G. The last text we are going to quote is a poem, an alphabetos written in
memory of Leo VI, most probably in 912/913 shortly after Leo's death.29
Referring to the tetragamy quarrel, the anonymous poet writes:
Such strange pronouncement from on high
By Providence was rendered.
The child [Constantine VII] was born, but by this birth
Law's bounds were violated;
Thus Law was once suspended, but
Another was enacted,
And Leo let the Canon Law
Its judgment freely render.30
Let us now try to piece together the information contained in the above
texts concerning civil law's prescriptions about fourth marriages.
First, in 906, Arethas knew of no civil law that even mentioned a fourth
marriage (cf. text A).
27Ibid., lines 17-21: -riSo0v pcaos aOrr o 0AN'oOXI hytiaros Traivos,El rET&yvcoaiv ols
0TroAErETrrai,
a -rbs9L&co -raTIs 8riXa8
oaaTs v6pp
TroSiK'ais,
Trp6-rTEpov
aoSai Ti
9upivA -r6 TiKOOV TdmEipyEtph -roTs
61ofois
E05tvEc'Sat;
28Ibid., p. 173, line 24-p. 174, line 4: ... as pt•-roO papd&p-rou S
SSEv ... voposftllv
E El-roTsOots varrTEK&yT-rO &'drXaypvov a v
yv6pEvov; a" A6yois Tr ciTE-
io'Et, p•tSiV"rrAOVTO-Tc•v &VVvplKpTrap& oo0 Kal o'Oq-roTro
pov O15 aOTbS EISTiv rappoo'Gav &v lrrpayt
i~KptiCK6Tc•vW---V "ArrXirppA•cv
ov8ovivc~iet -roTsA6yots 1i1rparv.v
r
lKcTrrpcov
KcrrT•a&v--o~U8v
Kal Tb-pIv Ov &A&pTupOV S UoagxSEfS,
&wTTV& 6S
T-rb
rrpopfjvar
&AAcov pETd
T1rm1KiS TOO "dAileia oVV4tvWKal-rTO TSTrrrp&c Utv poS XcaPEiT rC'ovrpay-
rcV 0rrEpay&p•vos,
T"r K OVK 6T1pilST -rTV
r6b dowaOd&pAEVOs.Kal Tr6IpiV iSOS KaSEGTroT)KT6rOV
plTrov lKt-Trpou 8tEibrpTpov 8 T d&oaS-ratTa, "rts
ArrEI TlOI r')v BOOK6rcov K&6v8OaAOv~EeTrOfel, lXPOoVTcOV&E -rIS
roroi-O K-aT?7VyK•LE A6yos" ilKi-ttKVOs
KaiVOOyfaists ypq9l -rOTS0Tr6 XETpa T61vv6pov ..
TrpooYqfecSai,
29 Published with translation and commentary by I. Sevienko, "Poems on the Deaths of
English
Leo VI and Constantine VII in the Madrid Manuscript of Scylitzes," DOP, 23-24 (1969-70), 201-10;
for the date, see ibid., 222-25.
30 Translated by gevbenko, op. cit., 204-5. The crucial lines (45-46) of the Greek text read as follows:
'0 v6pos ElKai Tr&2v vopoStEtv
r'c lEpc KaV6VlfpyTcrY,
8-,Tir6 KpIVIV
Trape•xbpEi.
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 181

Second, he knew only of laws that condemned a third marriage and thought
that they should apply a fortiori to a fourth. They were: a law contained in the
"purification of civil laws," issued before Leo's accession to the throne (cf.
texts A and B); and a law issued by Leo himself (B).
Third, in 907 Leo was considering the idea of issuing a new law to allow third
and fourth marriages, although this would create open contradiction between
civil and ecclesiastical legislation (C). He was prevented by the Patriarch
Euthymius and the synod, who issued a declaration on this subject (D).
Fourth, in order to obtain a dispensation, Leo promised to prevent by law
anyone else from contracting a fourth marriage (E). Eventually he issued a law
"with fearful penalties," formally forbidding fourth marriages (E, F, G); in so
doing, he followed the advice of the Patriarch and the synod (F: the persons
who were offended by Nicholas Mystikos in 914): this is the document men-
tioned in our text D, and alluded to at the end of our text G. The new law
naturally had no retroactive power; consequently Leo was not compelled to
divorce his fourth wife, especially since the Church Fathers did not hold any
"established reason" for him to do so (F; cf. supra, p. 176).
From the above text it is easy to conjecture that a bargain was made in 907.
Euthymius and his partisans accepted the responsibility of Church administra-
tion provided the Emperor would ban fourth marriages in the future by means
of a law. This decree was eventually issued, undoubtedly before the Patriarch
agreed to crown Constantine VII coemperor (15 May 908). Thus, its issuance
can be dated with accuracy to the span of time between Arethas' first oration
of 907 (E: dispensation granted because Leo promised to issue a law) and his
second oration (the law had been issued) which was read on 6 September or
8 November in the year that can now be safely considered to have been 907.
In other words, Leo's novella against a fourth marriage had been issued
sometime in the second half of 907, certainly before 8 November. It seems to
me that the above texts E, F, and G are explicit enough to show that this law
of 907 had nothing to do with Leo's novella 90 against third marriages, issued
long before the tetragamy question had arisen.

Civil Legislation ConcerningSubsequentMarriages

I. Justinian's legislation adhering to the principle of Roman law that a
marriage is simply the result of the mutual consent of the parties concerned
contains no limitation as to the number of times an individual is allowed to
remarry. Its only concern is to regulate the rights of inheritance for children
of previous marriages.31
II. The Isaurian Ecloga, issued probably on 31 March 726,32 contains no
provisions concerning third or fourth marriages. Two chapters (II, 10 and 11)
31
Cod. Just. V, 9, 6; Just. Novella 22.
D. Ghines, 'O 0w'0ptS. 121 K~8i T is pov'•is'Ay. NiKxvopos (Z&P3op8as) Kal 8'o XpovoXoyiat: rT'IS
32

KalTo 1-TTpoXeipov
'EKXoyfisTrv 'IcraVpcov N6pou, in 'ETr.'ETr.BuvL.ITr.,
30 (1960-61), 351-52; and V. Gru-
mel, "La date de l'Eclogue des Isauriens: l'ann6e et le jour," REB, 21 (1963), 272-74. Cf. also the
general remarks of B. Sinogowitz, Studien zum Strafrecht der Ekloge (Athens, 1956).
182 NICOLAS OIKONOMIDES
deal with persons contracting a second marriage (SEuTEpoyatila) and are also
mainly concerned about the inheritance of the offspring of the first marriage.
In my view, the Isaurian legislator has codified in these chapters Justinian's
novella 22, since both texts contain similar provisions and both speak of ButrE-
poyapfabut often refer to "previous marriages" in the plural, allowing us to
assume that should be understood in the broader sense of "re-
S&TrEpoyapfa
marrying," not as referring strictly to a "second" marriage.33 Instead, the
omission of any direct reference to marriages after a second one was under-
stood by the Byzantines and by modern scholars to indicate silent condemna-
tion of third and subsequent unions.34
III. There is a novella attributed to the Empress Irene (797-802) which
can be summarized as follows: We must respect all that is written in the Holy
Scripture. Therefore, we have already confirmed what is said in the Second
Title [of the Ecloga], which mentions a second marriage and no other, for it
follows the teaching of St. Paul. "This is why we decree that nobody can
marry three times or more, because such a union is foreign to the Apostle's
teaching as well as to the Christian concept of marriage." It is also forbidden
to all, especially to those holding office, to take as their lawful wives their own
slaves. "If anyone contravenes the present [law], his marriage will be illegal
and the children born of it will be considered illegitimate."35
The attribution of this novella is doubtful. It is based on the fact that in
some manuscripts it follows another novella of Irene, and on a rubrica of
the table of contents of cod. Marcianus gr. 179 (13th century: the text of
the novella itself is not preserved in the Marcianus) it is attributed to
6 arr s paartMos,with reference to the previous item, which is a novella of
Irene. But this attribution is contradicted by an annotation in the same cod.
Marcianus which says that this novella "is earlier than the time of the Empress
Irene."36 Moreover, the twelfth-century compiler of the Ecloga ad Prochiron
mutata has thought it appropriate to attribute this same text (the "novella of
Irene") to Justinian37-an attribution that is certainly false. Be that as it
may, the preserved text of the novella shows that it is legislation posterior to

33 For this
reason, we should by no means emend the text of the manuscripts and correct wporpo-ripcov
ydiayv to wpo-ripovy&dpov,as has been proposed by D. Ghines, Ziyr•pacrdr -rva4iK -rjs 'EKAoyfi5 -rv
'klaipcov, in 'Err.'ETr.BuL.Xrr., 10 (1933), 42. This correction is based on how this law was understood
later; see following footnote.
3 Ghines, ibid., who cites an addition found in the codex Bodleianus 204 of the Ecloga, which states
that there is no law concerning third marriages and that one should refer to St. Basil on this question.
The novella attributed to Irene, which we are going to discuss infra, also states that "previous legis-
lation mentions only second marriages." See D. B. Mposdas, 'Epl -rooydpou. Xuvpo;?kEls -riv pEa•rv
Too ypOu KxaT r&riev 'EKrO•oV -rav (Athens, 1937), 47; and G. Cassimatis, "La notion du
'laripcov
mariage de l'Eclogue des Isauriens," Mvril6auvaHTawoAtia(Athens, 1934), 25-92.
3 Zepos, Jus, I, 49-50 = Rhalles-Potles, V, 252. Cf. F. D61ger, Regesten der Kaiserurkunden des
ostr6mischen Reiches, no. 359. The passages relevant to our purpose read as follows: ... Ai6 6pLoPEV
KI WKilva
-rntrrl Trpf-rTOvayVOiKi•YlIOV phEl yiVEa
ScOl,
cb &6-rTpita
T"I
3Ekx5 OarTroKMi581aTr&gEcaS KcXl va
-MriXptO riaVtKj$&yXtoaefTas.. .. 'E&v y&p rirppeaij d
-risrT6 -rtoorrap6vros, wrrap&vopovElvat -6 aUVOtKniOV
KalTOOSTI"TOVOjUS Av KTrOV ydmacpv v6ov TVy)(X&vE1v.
36 See the discussion inTOtO"rtTWV wTraaS
J. Mortreuil, Histoire du droit byzantin, I (Paris, 1843), 352-54.
37 Zepos, Jus, VI, 286.
 LEO VI'S LEGISLATION ON FOURTH MARRIAGES 183
the Isaurian Ecloga which it partly endorses and partly corrects ;38and, more-
over, it contains no explicit mention of a fourth marriage, although this is
obviously included in the expression "third ... or more" (iali nug1xva).
It should be added here that the provisions of this novella did not find any
place in the official legislation of the Macedonians;39 and, as we shall see,
they were later watered down by Leo VI. It may thus be assumed that this
novella, although it was not abolished, was not considered to be of prime
importance in the second half of the ninth century.40a
IV. The Procheiros Nomos, the first Macedonian code of civil law issued
sometime between 870 and 879, probably in 872, contains a paragraph formally
forbidding fourth marriages but saying nothing about third ones. Since I believe
that this paragraph is part of an interpolation, I shall discuss it later (p. 185).
V. Leo VI promulgated a law condemning third marriages: it is novella 90
addressed to Stylianos Zaoutzes and consequently datable before the latter's
death in mid-899-most probably considerably earlier and before the death
of Leo's first wife Theophano (t 896 or 897). The Emperor, having expressed
his disapproval of second marriages, condemns third ones: "[Human nature]
rushes into a third marriage after the second, knowing that there is no punish-
ment for this action; it does not take into account the penance attached to
the third [marriage], the more so since, I do not know why, civil law has not
sought to be in agreement with the Holy Spirit's decree, and does not condemn
those who were not content with a second marriage. Consequently, We,
following the teachings of the Holy Spirit, order that those who contract a
third marriage should be subject to the punishment decreed against them by
Holy Canon."'4
In spite of its strong language, Leo's novella is considerably milder than
the previous "novella of Irene," which it ignores. Leo "legalizes"-and thus
renders enforceable-the penance attached to third marriages by Canon Law;
but he contests neither the validity of the third marriage once celebrated,4 nor
the legitimacy of the children that may be born therefrom.43

38 The clause
concerning the marriage of slaves to free people contradicts Ecloga VIII, 3. The one
concerning third marriages completes what is written in Ecloga II, 10 and 11, and could have been
inspired by Constantine V Copronymos' third marriage.
3 The clause
concerning remarriage will be discussed below; that concerning marriage between a
free man and his own slave is contradicted in Procheiros Nomos V, 4, and Epanagoge XVI, 20, 25.
40 This may be the reason why the Nomokanon, as revised in
883, did not take this novella into
consideration when examining the right of individuals to remarry (XIII, 2, in Rhalles-Potles, op. cit.,
I, 275ff.; cf. H.-G. Beck, Kirche und theologischeLiteratur im byzantinischen Reich (Munich, 1959), 146;
and J. Gaudemet's article "Nomokanon," in RE, Suppl. 10 (1965), 417-29.
41
p. Noailles and A. Dain, Les novelles de Ldon VI le Sage (Paris, 1944), 297-99 (with French transla-
1 si Tp.Tov
tion): 9i) .Kwp6s
... y.IIov TOTO Tt 81KjV TrI
8EUOTpov Tp KCi
TrpO•yE-rTa- TO-TCT &raiT-jS vatC, T-_
TI C yE KdK vOV, Oi" ph pq)cOVv
KEijS.fVl - f-Trl•-lECOCA
TA)TP'fTCP KaTa(ppovo'aaaa,
O &XiaTaO' iTrOXlT-KO OU'K OTrcO,,
t.9 a6XX8&
lVE1j-raToS, iXpi "TrS8EuTrEpas VO,
yapiKisIplo'TpcvcTas
ccaavToS
"T"86y0lcrTl"TOO IpEC0S &tq~v-TOS
TOCIrs
KOivcOVias.Toiyapooiv iIEIETSTOiTSTC) VIVEaTlbc 8OKOv"aiv 6pi'LopEv El
KEOaa.lT~
" fKi", ? TrEpiaCrr&$v 6 !Ep6sKavovw wr61•voi "Tovs sTpyaptccav KaTaoT'-raVTa rr0o-
tEw+voxEv.
42
Leo VI himself in his novella 89 for the first time has made compulsory the ecclesiastical blessing
for all marriages. The modalities of such a blessing for second or third marriages have been studied by
Herman (see articles referred to supra, note 6).
43 Leo's novella 100 also tones down "Irene's novella" as far as marriages between free men and
slaves are concerned.
184 NICOLAS OIKONOMIDES
If for the time being we disregard the Procheiros Nomos mentioned above,
we can easily recognize the two laws condemning third marriages to which
Arethas refers in 906 (supra, pp. 176-77): they are the "novella of Irene" and
that of Leo VI which, in fact, condemn third marriages and do not explic-
itly mention a fourth marriage. According to Arethas' statement, the first
of these laws was issued before Leo's accession to the throne (i.e., before 886)
and was part of a "purification of civil laws." This is a very significant ex-
pression in its ninth-century context. It cannot but refer to the major legislative
effort undertaken by Basil, the Macedonian, Leo's father, to purge the volu-
minous legislation of contradicting laws and of laws that were no longer valid, and
to make the practice of laws simpler for everyday use.44Basil himself refers to
this &vax&Sapats in the prefaces to the Procheiros Nomos and the Epanagoge:
the traditional legislation being too complicated, and the Isaurian Ecloga
being abhorred (&woTp6o'ratos) and foolish (pXilvaqfas),he decided to renew and
correct it all; the laws that were abolished were collected in one volume (TreXos)
while those that remained valid were classified in detail (icros TWv v6 ov) in
a vast work consisting of sixty (or forty) books destined for the use of scholars.
For practical purposes, he issued the Procheiron, which contained in forty
"titles" only those laws that were necessary and in common use; that is to
say, it was a manual for everyday practice of law. It is important for our pur-
poses to stress that the scholarly avacx&Sapais-whichsupposedly constituted
the basis of the Basilica published by Leo VI-is clearly distinguished from
the Procheiron and the Epanagoge. Consequently, we do not have to look into
these two handbooks in order to find the law which, as Arethas says, was part
of the &vaodSapcis. On the contrary, we may assume that the "novella of Irene"
-which, incidentally, is a complementary correction of the Isaurian Ecloga-
could not but find a place inside the vast and scholarly "purification of the old
laws" ordered by Basil I.
It may be added here that Leo VI continued his legislative work along the
same lines as his father's, and that his collection of 113 novellae is placed under
the title at Trcv v6i.cov e'avop9oTrIKal &vaasap'oetS.46The novellae themselves are
mainly concerned with correcting or abolishing old laws, and with assigning
legal power to existing customs, thereby bringing them into the body of the
law. Thus, the task of "purifying" the old legislation continued under Leo.47
This ambiguous situation could explain the inconsistency in Arethas' references
to previous legislation forbidding third marriages: in text A he speaks only of
the &vacusapcn& (i.e., all the purification of the laws made until 906, including
Leo's legislation), while in text B, he distinguishes between the avaxd&apcn&
which preceded Leo and the laws which were issued by him. In any case, he

44Theophanes Continuatus, 262-63.

45 Zepos, Jus, II, 116, 117, 237.
48 Noailles and Dain, Les novelles de Ldon VI le Sage, 5.
4 The question of the &vaxdxSapois has been studied in detail by C. E. Zachariae von Lingenthal,
"O ITp6XEpos Imperatorum Basilii, Constantini et Leonis Prochiron (Heidelberg, 1837), LXXXIV-
N6pWoS,
xciv. Cf. also H. J. Scheltema, "Byzantine Law," in CMH, IV, 2 (Cambridge, 1962), 65ff., and
G. Ostrogorsky, History o/ the Byzantine State (New Brunswick, N. J., 1957), 212-19.
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 185
seems to ignore any law which specifically mentions a fourth marriage. In
other words, he ignores Procheiron IV, 25, which formally forbade a fourth
marriage, and which, as we shall try to demonstrate, is an addition made in
the early tenth century.

The Interpolation in the Procheiros Nomos IV, 25-27

My argument is based on internal as well as external evidence, which will
be examined separately.
INTERNAL EVIDENCE. As I have said before, the Procheiros Nomos is a code
of law issued between the years 870 and 879, probably in 872. The relevant
paragraphs are the last ones of title IV, numbered 25, 26, and 27. First, I
propose to translate them ;8 then, in the commentary, I shall try to point out
the elements in the text which induce me to consider it as belonging to Leo
VI's legislation of 907 concerning fourth marriages.
[Procheiron IV, 25] "A law was laid down by the ancients, and confirmed
by the most pious Justinian, whereby those who wished might extend cohabi-
tation as far as a fourth marriage; he had in mind, no doubt, that to many
persons it naturally happens that their partners in marriage die early when
they themselves are still youthful, and nothing can resist their natural desires;
so that it happens to such that they are debarred from chaste wedlock, and turn
to forbidden intimacies. We, who have been subject to the same nature and
48The Procheiros Nomos, issued under the names of the Emperors Basil, Constantine, and Leo,
should be dated between 6 January 870 (coronation of Leo as coemperor) and 3 September 879
(Emperor Constantine's death). According to a manuscript found by Ghines, 'O rw'&ptfs. 121 (supra,
note 32), it was first issued in the year 872. The text that I am quoting, first published by Zachariae
von Lingenthal ('O N6pos, 32-34), can be conveniently found in Zepos, Jus, II, 127-28.
9Tp6XsipoS
I quote, with minor changes, the English translation of paragraph IV, 25, by Jenkins and Laourdas,
'EXXA7ViK&, 14 (1955), 338-39; and, with considerable changes, the translation of paragraphs IV, 26
and 27, by E. H. Freshfield, A Manual of Eastern Roman Law. The Procheiros Nomos (Cambridge,
1927), 62-63. The Greek text of these paragraphs reads as follows: KE'"Hq p~y ivoTro? &pcXafois ykypac-ral
v6pos Ka Trp6OyETrap&TOO E o1 y&pov TrapEKTEi-
Kai PvXptTeTrdpTrov
oE3Eo-rT&TOVOvTlorviavO KEKipCT-rai,St'
veOSat Tir ovVOK•alta TOTs
3OVAOliVOis"
TCa5 KaTaa-roxaLop•vov, O;s TroTs EslK65TO1JO 3vvavE, T6
TO•Oio O'pl
rT OVVOlKOJV rp6cT-rOv alT o&TS rOf3-&7XXE•a, T" Kai VOUvs Ti TOJTO
Tra••v, Kai OO1iVV&vTfo-raoai
"raXwS
rrp6oS TIlS90aOES 6ppdS, TorotS ouvpp3aivevTArwv P v y•apov 8
51is
"rT•
Twva p(s 1da o-rEr o'opp6vwov dwo-rpiTrEoat, qo-rrOv
yop&Try sup.vas. )Xpriy 8U il 5's bS-THISav-
Ka (picbs TE Kai &$SEVdks KEKOWCv1K6-TaS &V TOITp
&d 6p'pEv $ETovv6pov
"roT•Traato
aioTppEvat
v6poi0" •lv; EispyovTa. 6Si TOJrTO lpMET-pa
T6yaXTv6T"S,
TraiS
vlapva t XtvaT S XaAtv6vy 3oXoVvopV, TrpO~Traprov
TApbvro
"rwv v•rtSvpati Ka "roo'Trov d&rayopE"Et-
oUVOwK~O'OV
q(pKkaOgaTIv&,
oo''TE
8EIS •X6&ras TOT
TrpirTOV Kav6otv.
oJv Tr arJT {iKalta rrpO3af vEiv TrO; s&KKXQtiao"TtKOTS
Kai & rraparrrr 'a'-rE
i TOJ TrpI'TOOV
Kai &T OUVOlKEOIOv, trI TOo'8EUrpov. EoTrovOv
C Y 1E rrp6 y6aPOV, o0
6rr6'aa
p6vov 6 "rraoi
Kar-rTaBov, •S
Tri
TOsroX~O
Tr•TaprTOv Tr6v y&pOV, X7SETv,
o*l
oCTreol & aiTrov -reX$v-rES TraiT5ETraiE5S
&V'r OEOSv6; rTOo0O"TOs
vOPlE6PEvos
ydp•O
d Kai
&7A
Xoyi•oSo'erat, yvo'tot yvopto'•oov-rat,
&'
TCEoYvaO'vpoIvco
"rat; TrovaiS;"rv To•l rTi• rropvelaS rvrd'apaO' Ka.v-UroP31•oS-e-rat,&drr'
d(Xofov S9Xov6r T"rwv
"roto"roo "rrpo'Grrcv 8 o'rap'vov.
'Err~ia -roT& v
Ks'. rap& TraXatoiTS EpoPEy Trv KOlVCOV aov T Trp6 Ti-r6VPov76pEvov
&la•EtpvYv 'rraX•aiKd•
OKn g 1pv&lViVp6vEUrTovi&o'at -r VOpO•SEiav, TIvap~ KaraXpafvraITai1'Pvrat f aCriT-
whrro7reia
KOWVAovETv, oe lS fT"iV T"v
yapoti s o0K KESeCiOpeVTI6 VOV vi ig y r&PXev, rraAAaKfSa ivr T 1MfA)
Ev"TrpETrkaoiv.
6.Ev "TOO PvlSevI " KaT"Xeiv"
plKp6V y&p O"1Io 8V tSia)peiV &Trro rropvEiaS 7XAEl aVTO 7 KOV0VEIV, OIK.)P
yaptK6V
T"fiT VOPf.oEv. el o0Xorrlo TrOIEfTI"
rrpoS auvv•AXaypa TOO'V6pOv aKpipElaV. VYTOly• E va iag KpfvorTO yVVaTKa
a"rr2v Ka'T" T"1V &
avtr"'po T"lJaTVY
ivvopov KEKaa• plISEpaiaVTrp6O KOVoIwVfav, 'a V TrOliOK•TO, Kal
alOThV
l K•T& a'vVOUOilaV v•CXT0
Xlyorroplv av &VO.aI, KpiVOTO acoq(p6vwos ito a-at, SiKTraiOV.A&
tp VrTOTO.
T.•
arvT
KEi. M18dIS pUO-rIK o XU'tT'e.e. &AAd. ilT
TrrAt6vov. 6 yap ToVroTroA
c ro -rTe(pavoia'ca,
S11Xov66rt To'0 cbs-rrap6v-rcov
v Trois A v apEpP36Xov-roS,
-rry
op'aa &py6ao'Sat
r&&Sd(iaS E o'oqppovt-
Trlpop1EvoS, lEp•os, el-
L.s zTTOPVOV &KKv &drrpe-rro'tv s0SvaS•
'Tpa K•T&T'"• Tv"O
Otao'trTKoV
Kav6voV 81Trragiv.
186 NICOLAS OIKONOMIDES

the same weaknesses, might well adhere to the ancient laws in this regard;
but we see that the sacred law prevents us [from doing so]. For this reason
Our Serenity, wishing to bridle the uncontrolled desires of those in love,
forbids anyone to proceed to a fourth marriage; so much so, that she orders
those who have proceeded to a third to be subject to the canonical penalties
of the Church; so that the same writ shall run in the case of a third marriage
as in that of a second. Let it now be absolutely clear to all that if any shall
dare to proceed to a fourth marriage, which is no marriage, not merely shall
such a pretended marriage be of no validity and the offspring of it be illegiti-
mate, but it shall be subject to the punishment of those who are soiled with
the filthiness of fornication, it being understood that the persons who have
indulged in it shall be separated from one another."
[ProcheironIV, 26] "Since we realized that the ancients permitted consorting
in concubinage to those who desired a concubine, we thought that we should
not ignore this legislation, lest our State should be degraded by such unseemly
unions. Wherefore, we decree that henceforward no one shall be permitted
to keep a concubine in his house, for we consider that such a proceeding is
very little-if at all-different from fornication. If, however, a man wishes to
live in common life with his concubine, let him marry her according to the exact
prescriptions of the law. But if he considers her unworthy to be called his
lawful wife, let him abandon any carnal relations with her and expel her
[from his house], and take another [woman] that he thinks suitable to him.
If, however, he prefers to live continently, we approve."
[Procheiron IV, 27] "No one shall enact the ceremony of marriage in secret,
but [shall do so] in the presence of several witnesses. Whoever shall dare such
an act shall be corrected by punishment: that is, the priest will be deservedly
punished according to the provisions of the ecclesiastical canons because he
took part in undue acts."
Paragraph IV, 25, is the first and only piece of civil legislation formally
forbidding a fourth marriage. According to what we know from Arethas, no
such law existed in 906, but in 907 Leo issued one. The obvious conclusion is
that Procheiron IV, 25, is part of Leo's novella of 907. This conclusion is
strongly supported by internal evidence. The legislator declares that his
initial intention was to ratify the ancient law permitting fourth marriages-
and we know that this was in fact Leo's intention at the beginning of 907. This
initial attitude is explained by the fact that he himself has been (KSKoivcov1-
K6TaSin the perfect tense) subject to human weaknesses-a carefully worded
reference to Leo's fourth marriage. But he is prevented (from ratifying the law
of the ancients) by the sacred law, in other words, by Patriarch Euthymius
and his synod who, in fact, issued a declaration on this subject, putting forth
the ecclesiastical point of view. The legislator reminds us that he himself has
ordered that a third marriage should be subject to the canonical penalties of
the Church: this is a direct reference to Leo's novella 90, which contains
exactly this provision; and the reminder may have been prompted by the
synod's declaration in which third marriages were also attacked. He ends by
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 187

formally forbidding fourth marriages and threatening "fearful penalties" for

contraveners, carefully stating that this prohibition should become clear to
anybody now. As was to be expected, his law possessed no retroactive power
and consequently did not create any legal or moral problems for those who
had already contracted a fourth marriage, including, most conveniently, Leo
himself. One could hardly expect a more complete concordance between the
contents of Procheiron IV, 25, and what we know of Leo's novella of 907
(supra, p. 176-81).
Paragraph IV, 26, is an essential supplement to the previous one and most
probably belongs to the same legislation of 907. This hypothesis is supported
by the fact that IV, 26 is always found in the manuscripts between IV, 25 and
IV, 27 (see infra), which undoubtedly belong to the legislation of 907. Following
the Roman tradition,49 Justinian had not forbidden concubinage. On the
contrary, a certain legal protection was granted by law to concubines and
their children,50in spite of the ChurchFathers' outcry against this institution.51
Leo VI had himself issued a watered-down prohibition sometime in the nineties
of the ninth century.52But paragraph IV, 26, of the Procheiron is much more
precise: it stipulates that a man should either legally marry his concubine or
else expel her and break his relations with her. This law is referred to in a
scholion, attributed in the manuscripts to Leo (VI), stating that "now a man
is compelled to expel his concubine whether or not he wishes to."53The formal
prohibition of concubinage was necessary in order to conform with canon law,
and also to give real meaning to the prohibition of fourth marriages. What
was the point in imposing separation on two persons, one of whom had con-
tracted a fourth marriage, if the man was allowed by law to keep his partner
as a concubine ?54
Paragraph IV, 27, cannot be earlier than the reign of Leo VI, since it is
based on the assumption that a marriage cannot but be religiously celebrated
and Leo VI was the first emperor to issue a law establishing the
(o-ErpavovioSco);

49 Cf. J. Plassard, Le concubinat romain sous le Haut Empire (Toulouse-Paris, 1921).

50oCIC, Dig., XXV, 7; CJ, V, 26; cf. C. St. Tomulescu, "Justinien et le concubinat," Studi in onore
di Gaetano Scherillo, I (Milan, 1972), 299-326. The Isaurian Ecloga (II, 8) seems to uphold this legis-
lation (cf. I. Tornarites, lTaXX7KEda,in 'APX.Bul.A1K.,
I, 2 (Athens, 1931), 404-5; a somewhat different
opinion in Cassimatis, "La notion du mariage" (supra, note 34). See also the Nomocanon of 883 (Ps.-
Photius) in Rhalles-Potles, op. cit., I, 301-9. Several Justinianic dispositions concerning concubi-
nage seem to have been omitted in the Basilica, presumably in view of Leo VI's first prohibition (infra,
note 52). Cf. C. E. Zachariae von Lingenthal, Geschichte des griechisch-r6mischenRechts (Berlin, 1892),
58 note 52.
s51Rhalles-Potles, op. cit., IV, 160, 216, 306, 430, 481. Cf. Ph. Koukoules, BuMvav-rivOv BioS Kai
II, 2 (Athens, 1948), 186-88.
52Novella
wo?,ioTp6S, 91: Noailles and Dain, "Les novelles de Leon VI le Sage," 298-301. Leo abolishes the
laws permitting concubinage, but does not provide any penalties for those who might contravene his
novella.
53 Scholion to
Epanagoge XVI, 27, repeated in the Epanagoge aucta XIV, 55: Zepos, Jus, II,
276-77 (scholion d); and Epanagoge VI, 96: ... aEraT'rIor6 T-Oy
vV8p6S, piv
TrcAXaKh •TO8ic• This scholion further "TOOs
KOTrto Leo's
Tracalovs
El YE O1AOl0TO4KEIVOS,KaT& E T6 VV Kai El pil O'AOlTo. refers
novella 89: Noailles and Dain, op. cit., 294 note 1.
54The same preoccupation seems to have inspired the simultaneous
promulgation of Leo's
novellae 90 and 91 (against third marriages; against concubinage): cf. Noailles and Dain, op. cit., 298
note 6.
188 NICOLAS OIKONOMIDES

religious celebration as a conditio sine qua non for a valid marriage.55It would
seem that this paragraph, too, was inspired by a concrete fact related to the
tetragamy: Leo's marriage to Zoe had been blessed "secretly" by a palace
priest, who was subsequently deposed by Euthymius for having dared to
pronounce this unseemly blessing without the consent of the Holy Synod.5
Rather than simply sanction by law a disciplinary measure already taken
by his Patriarch, Leo tried to avoid any future embarrassment that might
arise should a priest, out of real or feigned ignorance, agree to celebrate secretly
a marriage that was illicit. The limited importance of this article would account
for the fact that later juridical compilations tend to omit it.
It should be added here that the composition as well as the wording of these
three paragraphs strongly suggest that they were borrowed from novella-type
originals, either from three different novellae or from three paragraphs of the
same novella.57Paragraph IV, 25, preserves a rather long historical introduction
in which the Emperor speaks in the first person. This is typical of a novella
but quite uncommon in the stark articles that usually compose a code of law.
A shorter introduction survives also in paragraph IV, 26. Only in paragraph
IV, 27, is a stern admonition written in the imperative; it, too, could come
from a novella: Byzantine legal compilations usually reproduce only the
dispositio-or part of it-of the imperial novellae that were their sources.58
EXTERNAL EVIDENCE. What we know of the manuscript tradition of the
Procheiros Nomos does not contradict the hypothesis that paragraphs IV,
25-27, were added to this code at the beginning of the tenth century. The
earliest manuscript used by Zachariae von Lingenthal in his edition of Pro-
cheiron, cod. Paris. Coislin 209, contains those paragraphs and has been dated
only on paleographical grounds to the end of the ninth century; but it could
very well belong to the first decades of the tenth century, since the proposed
date is nothing more than an approximation based on the style of the script.59

5Novella 89: Noailles and Dain, op. cit., 294-97. This novella, with the two that follow it (90 and
91), constitute a group of laws tending to modify civil legislation about marriage to make it conform
to the prescriptions of canon law and the wishes of the Church. It could then be argued that novella 89
was issued at the same time as novellae 90 and 91. The gradual introduction of the religious celebration
of marriages into the Eastern Church has been studied by Herman (articles listed supra, note 6).
58 Vita Euthymii, 109-11, 113 (-rb6v wrrap&Kav6vawrrp&aVTra), 139 (bs TroAp•-rfav,cbS&vw ovvo8tKuS
ylqov Trp&dcavra). This priest was eventually reinstated by Nicholas Mystikos after 912. Cf. Karlin-
Hayter in Vita Euthymii, 222, and Grumel, Regestes, nos. 625, 629.
57According to Matthaios Blastares (14th cent.), Leo had issued 120 novellae (Rhalles-Potles, op. cit.,
VI, 30). We have a collection of 113 novellae (Noailles and Dain, op. cit.) together with four excerpts
from Leo's laws (ibid., 376-78) and a few more excerpts of dubious authenticity and attribution (Zepos,
Jus, I, 51-53). No conclusion is possible. We have seen (supra, notes 54, 55) that at different times Leo
issued three distinct novellae about subjects very similar to those treated in 907.
58Cf. A. Pezzana, "Note sulle novelle di Leone VI il Saggio," Annali di storia del diritto, 2 (1958),
333-44.
59R. Devreesse, BibliothdqueNationale. Catalogue des manuscrits grecs. II, Le fonds Coislin (Paris,
1945), 187-89. I do not think that one can follow J. A. B. Mortreuil, Histoire du droit byzantin, II
(Paris, 1844), 30, in dating the prototype of the cod. Laudianus 39 (73), containing the Procheiron, to
the year 901 or 902. The manuscript that we have was written in the 11th century (H. O. Coxe, Cata-
logi codicum manuscriptorum bibliothecae Bodleianae, I [Oxford, 1853], col. 520), and we have no way
of knowing from how many prototypes it was copied. A detailed description of the Laudianus 39 is
found in Zachariae von Lingenthal, 'O TTp6Xupos N6poS,323-28.
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 189
In any case the existence of this manuscript is sufficient evidence that para-
graphs IV, 25-27, were probably introduced into the Procheiron not later
than the first decades of the tenth century.
It has already been argued,60 on codicological grounds, that the last six
paragraphs of title IV (22-27, including those in which we are interested) may
constitute a later addition to this code of law. The reason was that these six
paragraphs, together with several others (XXXIII, 30-32; XXXIV, 17;
[XXXIX, 79, see infra, note 64]), are found separately in the so-called Epi-
tome Marciana under a heading qualifying them as novellae of Basil I.61Conse-
quently, they have been considered additions based on legislation issued by
this Emperor.62Mortreuil has even tried to show that this separate group of
paragraphs was the work of a compiler who drew all his information from the
Procheiron itself ;63 but this cannot be readily accepted. On the contrary, there
are reasons to suspect that the compiler of the Epitome Marciana had in front
of him documents other than the Procheiros Nomos.64
Let us now look more closely at these paragraphs of the Procheiron and
see whether they could have been added to this code of law after it was first
issued, probably in 872 and certainly before 879 (cf. p. 185 note 48). In order to
make our point, we shall compare it with other law books of roughly the same
period: first, with the Epanagoge, which was issued under the names of the
Emperors Basil, Leo, and Alexander, that is, sometime between the years
879 and 886, and which "is little more than a new, improved edition of the
Procheiron";65second, with the Epitome legum, a private collection of rules of
law from the year 908/9, or 913/14, or 921, which "gathers most of its materials
from sixth- and seventh-century commentaries"'66but also reproduces a

60
By Zachariae von Lingenthal: see Zepos, Jus, II, 126 note 36; 127 note 42.
e61Published by J. Leunclavius, luris Graecoromanitam canonici quam civilis tomi duo, ed. M. Freher
(Frankfurt, 1596), I, 86-87 (reprinted in Rhalles-Potles, op. cit., V, 253-54); II, 134-35.
62
J. S. Assemani, Bibliotheca juris orientalis canonici et civilis, II (Rome, 1762), 748-52; Zachariae
von Lingenthal, cf. supra, note 50.
63 Mortreuil, op.
cit., 279f.
64 E.g., in one paragraph published by Leunclavius
(op. cit., II, 135, ? 6) it is stated that "the
Emperor Basil the Macedonian, in a novella (veapd) established a mandatory death penalty for anyone
committing a premeditated murder, including those holding high imperial titles (the latter's lives had
been respected by previous legislation). Mortreuil (op. cit., 283-84) postulates that this paragraph
comes from Procheiron XXXIX, 79, although he recognizes that the text of the Epitome Marciana is
more developed than that of the Procheiron. It must be pointed out here that Procheiron XXXIX,
79, simply repeats a clause from the Isaurian Ecloga (XVII, 45) which does not say at all that capital
punishment should also be applied to murderers holding titles; and that this same paragraph is repeated
in the Epanagoge (XL, 85) and in the Epitome legum (XLV, 11). In other words, it is clear that the
compiler of the Epitome Marciana had in front of him a text different from that in the Procheiron-
most probably Basil's novella, in which this Emperor made clear his understanding that the death
penalty should be applied to all guilty of premeditated murders, including dignitaries. It may be
assumed that Basil's novella had not been in force for long, since the Basilica (LX, 39, 3) repeat the
traditional differentiation in penalties, based on the social rank of the murderer. In any case, the
legislation on premeditated murder was radically modified by Constantine VII (Novella XI: Zepos,
Jus, I, 232-35) and these new dispositions were generally applied in the 11th century: Peira, LXVI,
14, 24, 25, 27; scholion in Basilica, LX, 39, 3.
65 Scheltema, "Byzantine Law" (as in note 47 supra), 66. Text in
Zepos, Jus, II, 229-368. On the
character of the Epanagoge, see Ostrogorsky, History (as in note 47), 213-14 (with bibliography).
66
Scheltema, op. cit., 65. Text in Zepos, Jus, IV, 261-585.
190 NICOLAS OIKONOMIDES
selection of clauses from the Procheiron and takes into consideration the
legislation of Leo VI.67
Procheiron IV, 22-27: Since these are the last paragraphs of title IV, if
they were added after the Code was first issued, they would not affect the
numbering of the other paragraphs. It should be emphasized here that Pro-
cheiron IV, 1-21, is repeated in its entirety in the text of the Epanagoge;68
but paragraphs 22-27 appear only in some manuscripts of the Epanagoge,
either interpolated in title XVI with independent numbering, or as marginal
scholia,69or as an addition that is found independently between titles XV and
XVI ;7o Sometimes they are placed under the ambiguous heading roi a1erpou
f
[2Eaepo0S]Pam•oas
with no indication of the name of the emperor who issued
the law. Consequently, there is no doubt that they are additions which do not
belong to the original text of the Epanagoge.
67 The date of the collection is given with variants in its preface (Zepos, Jus, IV, 280). Most of the
manuscripts used for the edition of Zachariae von Lingenthal (reproduced by Zepos) assert that the
compilation was made ?v -r rrprcp- grei-ro0 orvXy(oo'P0coavo [PactMcoS-in the first year of the
reign of Romanus I Lecapenus, who was crowned, as we now know, on 17 December 920. Consequently,
the preface dates to the year 921 (the date of 920, repeated ever since Zachariae von Lingenthal pro-
posed it in the mid-19th century, is based on an erroneous calculation of Romanus' coronation: Zepos,
Jus, IV, 271). But in one manuscript used by Zachariae von Lingenthal, Laurentianus LXXX, 6, this
phrase is omitted and replaced with the following: &vrT'pcbrcp 6TC t o0 EOTV)(o0J SKcovo-rav-rfvov,
0TO
vlo0 AbovTros T0 E0 Epy&Trouv-in the first year of the reign of Constantine VII Porphyrogennetos, who
was crowned co-emperor on 15 May 908, and who began to reign alone on 6 June 913. One would tend
to discard the date 908/9, since the regnal year of Leo himself should be mentioned first in the date;
but another manuscript used by Zachariae von Lingenthal, Vaticanus graecus 640, places the preface
under the title -ro0warp6v'roS voipov -rucv -rptawvPactcov (Zepos, Jus, IV, 276 note 1), and this very
well accords with the dating of the collection to 908/9 since, at that time, there were in fact three
emperors, Leo, Alexander, and Constantine VII. And the mention of Constantine VII alone in the
preface could be considered as a compliment to his father, who had at last succeeded in producing a
male heir and elevating him to the throne. On the other hand, Leo is mentioned several times in the
preface (also in the text, cf. in/ra), always as a living person: 6 yaiiv6-rcrros Kaic wpc6rcrros ~apv
P~actNE's Akov (ibid., p. 279, lines 19-20) has revised and simplified the legislation and then issued it for
the benefit of all, 6 KaXAiVlKOSKal 4&v (ibid., p. 280, lines 7-8). The author of the
wp6-ra-'ros Pao•-?tes
compilation goes on to say that he introduced into his opus ancient laws that are still valid, as well as
those that were confirmed or first issued by "our Emperor" (ibid., p. 280, lines 12-15: -rcoiS8 iv
OalI'Epov ... VEvo•9o3ET1pjVOi5KCK Tai pEKpa7WJo0iVOlt -roT[var. v o01]Kcawap&O-rO &El 0
aEao-roOI vi cioh1os
' Kaix it is obvious that in this last phrase reference is made to Leo VI, who
islpijTI9c'ilv
mentioned four vopo•srT1••O1iv);
lines above. Consequently, one may imagine that the Epitome legum was first
"published" in 908/9; and that a new "edition" was made in 921 (with the appropriate change in the
dating clause), an "edition" from which come most of the manuscripts used by Zachariae von Lingen-
thal for his edition. In any case, what is important for our purpose, is that the Epitome legum was com-
posed before 921, and that its author asserts that he took into consideration the legislation of Leo VI.
61 This is the concordance of the paragraphs from Procheiron IV with those of the Epanagoge:
Proch. Epan. Proch. Epan. Proch. Epan.
IV, 1 XVI, 1 IV, 9 XVI, 9, 10 IV, 16 XVI, 19
2,3 2 10 22 17 12
4 3 11 7 18 15
5 13 12 4 19 14
6 26 13 16 20 XVIII, 9
7 6 14 11 21 XVI, 23
8 8 15 5
19 Cf. Zepos, Jus, II, 275 note 2.
70 Cod. Paris. suppl. gr. 1235, pp. 48-50: Ch. Astruc and Marie-Louise Concasty, Bibliothhque
Nationale. Catalogue des manuscrits grecs. III, Le Suppldment grec 3 (Nos. 901-1371) (Paris, 1960). This
is a 19th-century copy made by Mynas Minoide on a 13th-century manuscript belonging to a priest of
Giimiis-hane (Argyroupolis, in the Pontus). Caution is necessary when dealing with Minoide's copies:
cf. A. Dain, "Les manuscrits juridiques de Minoide Mynas," Actes du VIe Congrds International des
Etudes Byzantines, I (Paris, 1950), 355-58.
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 191
Procheiron IV, 22-23: Conditions under which a minor can be forced by
his father to marry. These two paragraphs are based on an imperial novella
(Kcra*
-r ap' c v&pTCvicS IECES VEVOiO.ErOiiva). They do not appear in the
original text of the Epanagoge, but are repeated in the Epitome legum (XXIII,
35, 36).
Procheiron IV, 24: Modalities to be followed by a woman over twenty-five
years of age if she wishes to marry the man of her choice and force her resentful
parents to give her her rightful dowry. Wording of a novella, with introduction
and dispositio (KaiTroTs Trp60T v vooSPT6rcs... 8SiaroiTroSTr-iToiOEv). Omitted in
the original text of the Epanagoge, which simply repeats (XVI, 5) the traditional
law as it appears in Procheiron IV, 15, which grants to adult women the
right to marry without paternal consent, thus ignoring the modalities required
for this practice contained in the paragraph of the Procheironunder discussion.71
Procheiron IV, 24, is introduced into the text of the Epitome legum (XXIII, 8,
cf. XXIII, 4) whereit is qualifiedas a "recent"disposition(ap-fris).It may be
added here that the author of the Epitome legum uses the word apTrioSin
another instance (XXIII, 21) where he refers directly to Leo VI's novella 23
8' 8i&TraisyE"yoVETrapcp
'rToE'EpEo3"r~rou iW $v
(&cp-rfcos 3xao'i7co AEovTroS...
Procheiron IV, 25-27: The three paragraphs which have been recognized
above to be excerpts of Leo VI's legislation of 907 against fourth marriages.
Their wording is that of a novella; they do not appear in the original text
of the Efanagoge; but two of them are quoted (IV, 26) or entirely reproduced
(IV, 25) in the Epitome legum XXIII, 32, 39-40. We should note here that
a scholion of the Epanagoge (cf. note 69) seems to put Procheiron IV, 26, in
relation with Leo VI's legislation.
It seems to me that the preceding information supports the conclusion we
have arrived at on the basis of the internal evidence contained in Procheiron
IV, 25-27: these three paragraphs may well be a later addition, obviously made
after the Efanagoge was issued (879-86); and there is no decisive evidence
against attributing them to legislation issued by Leo VI, provided we accept
that this new legislation had been introduced into the Procheiron before the
compilation of the Epitome legum. We have even found some external indica-
tions, admittedly very faint, that paragraphs 24 and 26 could be attributed to
Leo VI. Lastly, it can be argued that the title 70o TPETerpov O
[eoiEI3O-] 3a icoMs,
under which many of the paragraphs of title IV (22-27) appear as interpola-
tions or scholia in manuscripts of the Epanagoge, may indicate that the inter-
polator wished to differentiate between the emperor of his time (presumably
Leo VI) and the main author of the Epanagoge, who was Basil I. The informa-
tion, however, is scanty, and medieval legal compilers are sometimes erratic-
or, at least, not very easy for us to understand.72It is wise, for the time being,
to leave this treacherous ground.
71 On this
subject, see N. Matses, 'O ydqoS -ri OwTrovafcxas v i{Kcxlov, in
KxT- TOr BULaV-Btv
37 (1969-70), 34-54. 'EmTr.'ErT.
Bul.XIw,
72This is an old and thorny problem. See F. Wieacker, "Zur Technik der
Kompilatoren. Pramissen
und Hypothesen," Zeitschri/t der Savigny-Sti/tung fiir Rechtsgeschichte,Romanistische Abteilung, 89
(1972), 293-323.
192 NICOLAS OIKONOMIDES

CONCLUSION. Leo VI's legislation of 907, introduced first into the Procheiros
Nomos, then into the Epanagoge (in the form of scholia), and then into the
text of the Epitome legum, remained the standard civil legislation concerning
fourth marriages and concubinage until the fall of Byzantium. Paragraphs
25-27 of Procheiron IV reappear in the text of the Epanagoge aucta (tenth
century),73 of the Ecloga ad Prochiron mutata (twelfth century),'4 in the Pro-
chiron auctum,75and are still quoted in the fourteenth-century legal handbooks
of Matthaios Blastares76 and Constantine Harmenopoulos.77 Because of his
personal ordeal, Leo VI finally achieved unanimity between canon and civil
law on these issues by enforcing canonical penalties for a third marriage (no-
vella 90) and by forcefully dissolving any fourth marriage (Procheiron IV, 25).
Yet, his legislation was soon overshadowed by the Tomus Unionis of 920.78
I have tried to demonstrate that Procheiros Nomos IV, 25-27, are an inter-
polated addition to the original text of this code of law, made on the basis of
Leo VI's legislation of 907 against fourth marriages. This has been possible
because the tetragamy quarrel had become a cause cdlibre and considerable
documentation relating to it has survived. But this conclusion leads inevi-
tably to a question more important and more difficult to answer: namely, are
there any other interpolations in the text of the Procheiron? Although I
have not undertaken any systematic research on this point, there are reasons
to suspect that other paragraphs may also be later additions: XIV, 11,79
XXXIII, 30-32, XXXIV, 17,8o which occur at the end of the respective titles.
Moreover, paragraph XI, 4, although it is found in the middle of the title with
consistent numbering, could also be a later addition.8s This last case may be

7 Tit. XIV, ? 21, 22, 29: Zepos, Jus, VI, 92, 93, 94.
74 Tit. II, ?27: Zepos, Jus, VI, 235. Cf. J. de Malafosse, "L'Ecloga ad Prochiron mutata," Archives
d'Histoire du Droit Oriental, 5 (1950), 1-24.
75Tit. IV, ? 43, 54, 56: Zepos, Jus, VII, 30, 32, 34.
76Rhalles-Potles, op. cit., VI, 161.
77Constantini Harmenopuli Manuale legum sive Hexabiblos, ed. G. E. Heimbach (Leipzig, 1851),
532-34 (IV, 9, 33, and 34).
78 Cf. supra, p. 169. It goes without saying that the Tomus Unionis is quoted not only in all canoni-
cal, but also in civil legislation of the following centuries: e.g., Scholion to Basilica XXVIII, 4, 39;
Prochiron auctum IV, 55; Constantini Harmenopuli Manuale legum, 532.
79Wording of a novella (cf. Zepos, Jus, II, 154 note 35); does not appear in the text of the Epana-
goge but is added in the margin of one manuscript under the heading -ro0 [aatMas
(cf. ibid.,
311 note 2); appears in the Epitome legum XVI, 14. Procheiron XIV, 11,-0a3o0p constitutes a further step
in the direction that has already been traced in the Isaurian Ecloga (IX, 1): cf. N. Matses, 'Av6AKTraK
in 28
riT 'EkAo'yisrcv 'iaacpcov, 'Err.'ETr.Bv[.rw., (1958),
274-77.
so Paragraphs XXXIII, 30, 31, 32, and XXXIV, 17, appear in this sequence in two independent
copies, where they are said to belong to a novella of Basil I (Zepos, Jus, II, 198 note 152; 202 note 69).
They are omitted in the text of the Epanagoge but appear in the form of marginal scholia in one manu-
a
script under the heading -ro0 ptaahcoS (Zepos, Jus, II, 344 note 7; 350 note 10). Wording of
novella which presumably dealt with problems related to inheritance ab intestat. On XXXIV, 17, see
rpT~rpov
E. F. Brunk, "Kirchlich-soziales Erbrecht in Byzanz. Johannes Chrysostomus und die mazedonischen
Kaiser," Studi in onore di S. Riccobono, III (1933), 377-423.
s81Wording of a novella. It stipulates that a marriage can be dissolved by common consent only
if
both parties (aKrr4pcov) embrace the monastic life. This paragraph does not appear in the text of the
Epanagoge, which, on the contrary, repeats (XXI, 1) the provisions of Justinian's novella 117, according
to which marriage is dissolved if one of the parties (S&drpov)retires to a monastery. But one manu-
script of the Epanagoge XXI, 1, preserves a significant scholion (Zepos, Jus, II, 300, schol. a): "One
should know that the present law has been renewed by our pious Emperor; this is how his decision
on
(86ypa) reads," followed by the word-for-word copy of the dispositio contained in Proch. XI, 4,
LEO VI'S LEGISLATION ON FOURTH MARRIAGES 193
an extremely important indication that the Procheiron not only was inter-
polated, but may also have undergone at least one systematic revision. After
all, interpolations or "revisions" are only too natural in a code of law published
and transmitted in manuscript form and meant to regulate human behavior;
they reflect the continually developing needs and concepts of a society alive
and therefore ever changing. The need for detailed investigation of the manu-
script tradition of Byzantine legal texts is all the more apparent.82
the requirement that both parties embrace the monastic life. On the other hand, Procheiron XI, 4,
is found in one manuscript under the heading -rfi vEapas8ta-rr&co BamAdfov,AoVTrosKal 'A (&v8pou
(Zepos, Jus, II, 146 note 27), "from a novella of Basil, Leo, and Alexander," i.e., a novella issued
after Alexander's coronation (September-November 879); but we have already seen that the Pro-
cheiron was certainly published before 879. It may therefore be deduced that the provisions contained
in Procheiron XI, 4, were first part of a novella issued between 879 and 886 (Basil's death), probably
after the publication of the Epanagoge; these provisions were later introduced into the Procheiron in
the form of paragraph XI, 4. Placed in the middle of the title, without any irregularities in numbering,
this paragraph must have been added on the occasion of a revision of the Code, a revision that certainly
preceded the composition of the Epitome legum, in which Procheiron XI, 4, is reproduced (XXIV, 4).
82This is not a new problem. See V. Benegevi6, "Corpus scriptorum iuris Graecoromani tam canonici
quam civilis," Izvestija na Bilgarskija Arheologi6eski Institut, 9 (1935) (= Actes du IVe CongrdsIntern.
des Et. Byz., I), 137-44; Th. Zielinski, "Projet de la cr6ation d'un Corpus scriptorum iuris Graecoro-
mani tam canonici quam civilis (en abr6g6 CSJ)," SBN, 5 (1939) (= Atti del V Congr. Intern. di Studi
Biz., I), 735-40; J. de Malafosse, "Le probleme de l'6dition des textes du Jus Graeco-Romanum,"
Actes du Ier Congrdsde la Fdddration Internationale des Associations d'Etudes Classiques (Paris, 1951),
251-54; C. A. Maschi, "Lo stato attuale della storia e delle fonti del diritto bizantino," Te-rrpayp•va
00 e' AieSvo BvLavrtvoXoytKOi eGeaaaXOViKfS(Athens, 1956), II, 33-48. Some important works
in this direction have appeared Xvvo5poV
since then: Basilicorum libri LX, ed. H. J. Scheltema, D. Hol-
werda, N. Van der Wal (in progress); N. Svoronos, La Synopsis Major des Basiliques et ses appendices
(Paris, 1964); idem, "Remarques sur la tradition du texte de la novelle de Basile II concernant les
puissants," ZVI, 8-2 (1964), 427-34; idem, "Histoire des institutions de l'empire byzantin," Ecole
Pratique des Hautes Etudes, IVe Section, Annuaire (1969-70), 331-46; W. Waldstein and D. Simon,
"Neuentdeckte Bruchsticke der Epanagoge cum Prochiro composita," JOB, 23 (1974), 145-78;
W. Waldstein, "Zur Epanagoge cum Prochiro composita," Zeitschri/t der Savigny-Sti/tung fiir Rechts-
geschichte, Romanistische Abteilung, 91 (1974), 375-83.