For Procopius, the very fact that Justinian chose Theodora for his wife was evidence of his unfitness for power. His assessment of the marriage followed an extended discussion of Theodora’s depravity. In addition to chronicling her onstage activities as an “actress” in pornographic detail, Procopius accused Theodora of ending a series of pregnancies with abortions. It was against this backdrop that he launched the following attack on Justinian. Also included here is the law, passed at Justinian’s insistence, legalizing his marriage to Theodora. As you read the two documents, ask yourself what connections Procopius made between Justinian’s choice of bride and his conduct as emperor. What does the marriage law tell you about how Justinian might have countered Procopius’s attack?

Procopius on Justinian’s Choice of Theodora

The thought never occurred to her husband that his choice was an outrage, given that it was possible for him to have selected a spouse from the whole of the Roman Empire, to have married a woman who was the most well-born among all women and had been raised outside the public gaze, who had learned the ways of modesty and lived discreetly; moreover, she could have been exceedingly beautiful and still a virgin and even, as they say, with perky breasts. But no, he had to take for his own the common stain of all mankind and was not put off by any of the facts that I have stated. He took as his wife a woman adorned with many great abominations, to say nothing of the infanticide that she had regularly practiced in her voluntary abortions. I do not think it necessary to say anything else about the man’s character. This marriage suffices to highlight all the many vices of his soul: it became the interpreter, witness, and chronicler of his personality. Whoever disregards the shame of past deeds and is unconcerned if he is known as a disgusting character, well, every path of lawlessness will be open to such a man. As if the word “shamelessness” were written prominently on his forehead, he casually and unscrupulously advances to the most abominable actions.

A Law for the Marriage of Justinian and Theodora

Believing that it is a peculiar duty of Imperial beneficence at all times not only to consider the convenience of Our subjects but also to attempt to supply their needs, We have determined that the errors of women on account of which, through the weakness of their sex, they have chosen to be guilty of dishonorable conduct, should be corrected by a display of proper moderation, and that they should by no means be deprived of the hope of an improvement of status, so that, taking this into consideration, they may the more readily abandon the improvident and disgraceful choice of life which they have made. For We believe that the benevolence of God and His exceeding clemency toward the human race should be imitated by Us as far as Our nature will permit. God is always willing to pardon the sins daily committed by man, accept Our repentance, and bring us to a better condition. Hence, We should seem to be unworthy of pardon Ourselves were We to fail to act in this manner with reference to those subject to Our empire.

Therefore, just as it would be unjust for slaves, to whom their liberty has been given, to be raised by Imperial indulgence to the status of men who are born free and, by the effect of an Imperial privilege of this kind, be placed in the same position as if they had never been slaves, but were freeborn; but that women who had devoted themselves to theatrical performances and, afterward, having become disgusted with this degraded status, abandoned their infamous occupation and obtained better repute, should have no hope of obtaining any benefit from the Emperor, who had the power to place them in the condition in which they could have remained if they had never been guilty of dishonorable acts, We, by the present most merciful law, grant them this Imperial benefit under the condition that where, having deserted their evil and disgraceful condition, they embrace a more proper life and conduct themselves honorably, they shall be permitted to petition Us to grant them Our Divine permission to contract legal marriage when they are unquestionably worthy of it. Those who may be united with them need be under no apprehension, nor think that such marriages are void by the provisions of former laws; but, rather, they shall remain valid and be considered just as if the women had never previously led dishonorable lives, whether their husbands are invested with office, or, for some other reason, are prohibited from marrying women of the stage, provided, however, that the marriage can be proved by dotal contracts reduced to writing. For women of this kind having been purified from all blemishes and, as it were, restored to the condition in which they were born, We desire that no disgraceful epithet be applied to them and that no difference shall exist between them and those who have never committed a similar breach of morality.

Children born of a marriage of this kind shall be legitimate and the proper heirs of their father, even though he may have other lawful heirs by a former marriage; so that such children may also, without any obstacle, be able to acquire the estates of their parents, either from an intestate or under the terms of a will.

If, however, women of this description, after an Imperial Rescript has been granted them in accordance with their request, should defer contracting marriage, We order that their reputations shall, nevertheless, remain intact, as in the case of all others who may desire to transfer their property to anyone; and that they shall be competent to receive anything bequeathed to them, in accordance with law, or an estate which may descend to them on the ground of intestacy.

We also decree that such of these women as have obtained a privilege from the Emperor shall occupy the same position as those who have obtained some other benefit which was not bestowed by the sovereign but was acquired by them as a voluntary donation before their marriage; for, by a concession of this kind, every other stigma on account of which women are forbidden to contract lawful marriage with certain men is absolutely removed.

To this We add that when the daughters of women of this kind are born after the purification of their mother from the disgrace of her former life, they shall not be considered as the children of females belonging to the stage or be subject to the laws which forbid certain men to marry such women. Where, however, they were born before that time, they shall be permitted to petition the Utterly Unconquered Emperor for a Rescript, which should be granted without any opposition, by means of which they may be permitted to marry just as if they were not the daughters of actresses; and those men shall not be prohibited from marrying them who are forbidden to take as wives girls belonging to the stage, either on account of their own rank or for some other reason, provided, however, that in every instance dotal instruments in writing are executed by the parties concerned.

If, however, a girl born of a theatrical mother who practiced her profession until the time of her death should, after her mother’s decease, petition for Imperial indulgence and obtain it, she shall be freed from the blemish of her mother’s reputation and herself be granted permission to marry; and she also can without the fear of former laws be united in matrimony with those who not long ago were prohibited from marrying the daughter of an actress.

Moreover, We have thought that what was prescribed by former laws (although this was somewhat obscure) should be abolished, namely, that a marriage contracted between persons of unequal rank shall not be considered valid unless dotal instruments with reference to it were executed. When, however, this does not take place, such marriages shall still be absolutely valid, without any distinction of persons, provided the women are free and freeborn and that no suspicion of any criminal or incestuous union arises, for We, under all circumstances, sever criminal and incestuous unions as well as those which were especially prohibited by the provisions of former laws, with the exception, however, of such as We authorize by the present decree and direct shall be considered legal, in accordance with the rights of marriage.

Therefore these matters having been settled in this manner, by this general law which must hereafter be observed, We order that any such unions which have subsequently been made shall be regulated in accordance with the aforesaid provisions; so that where anyone has married a wife of this kind during Our reign (as has already been stated) and has children by her, they shall be legitimate and be entitled to succeed to their father if the latter was intestate as well as under a will, and the wife, as well as any children hereafter born of her, shall also be considered legitimate.

Source: Prokopius, The Secret History with Related Texts, ed. Anthony Kaldellis (Indianapolis: Hackett Publishing Company: 2010), pp. 47, 133–136.

QUESTIONS TO CONSIDER