12 Confiscation of the Properties of Christian Proselytes
Constantius II
3 July 353
This law was given by Constantius II at Milan, and was addressed to the Praefectus Praetorio Thalassius.
Its text has been preserved in the Theodosian Code (CTh 16:8:7), and interpreted in the Visigothic Commentary. The text transmitted by Codex Theodosianus was later received by the editors of the Breviarium (Brev. 16:3:2) as well as the editors of Codex Justinianus (CJ 1:7:1).Theodosius’ editors dated this law to 3 July 357, but this date is manifestly wrong, for the law’s addressee, Thalassius, was dead by then. He served as Praefectus Praetorio in the East by the side of Gallus Caesar, and died in 353, or in the beginning of 354. In 357 the office of Praefectus Praetorio of the East was held by Strate- gius Musonianus, who was appointed to it after Domitian’s assassination in 354. Furthermore, on 3 July 357 Constantius II did not stay in Milan, for on 22 May of that year he celebrated his Vicennial in Rome, left for Trient on 29 May, and then returned eastwards to the Balkans. The law was issued, consequently, before 353/354. Another error was introduced into the law’s inscription when Julian was designated as Caesar, for he obtained this title on 6 November 355.1 Mommsen dates this law to 352,2 Seeck and Ensslin to 353.3 However, as Constantius II arrived at Milan in the winter of 352, the law was probably issued on 3 July 353, prior to his departure to Gaul against Magnentius, or shortly afterwards.
The text of CTh 16:8:7 indicates that Constantius II issued this law in two separate texts. The first text was addressed to the public, either the entire population or more restricted groups, whether Christians or Jews.
The second text, which was directed to the Praefectus Praetorio of the East, referred to the first text in its allusion to Christians who converted to Judaism after the promulgation of the first text, using the past tense (iussimus). Issuing two texts of the same law, one addressed to the public and another to key officials in the administration, is known from other laws as well, e.g., the two complementary documents from 330 (see above, No. 9).The imposition of confiscation to the Treasury of the property of Christian proselytes represents a partial return to the legal rule established at the end of the third century, namely that Roman citizens who converted to Judaism were to be punished by exile and by property confiscation (see above, No. 6). Our law was applicable to Christians only, and it omitted the exile penalty. Its scope was consequently more limited than the law of the third century.
Justinian’s editors suppressed all allusion to the first text, with the result that their version represents a law seemingly unrelated to a previous text. The inscription omitted Julian’s name, either because they emended the text of the Codex Theodosianus, or because they had at their disposal a better text than that transmitted in the manuscript-tradition of the Theodosian Code.
Codex Theodosianus, 16:8:7, ed. Mommsen, p. 888
IDEM A. ET IULIANUS CAES. AD THALASSIUM P(RAEFECTUM) P(RAETORIX)
Si quis lege venerabili constituta* ex Christiano ludaeus effectus sacrilegis coetibus adgregetur,* cum accusatio fuerit conprobata, 5 facultates eius dominio fisci iussimus vindicari.
DAT. V NON. IUL. MED(IOLANO) CONSTANTIO A. VIIII ET IULIANO CAES. II CONSS.·
Ista lex interpretatione non eget.
THE SAME AUGUSTUS AND JULI AN CAESAR TO THALASSIUS, PRAEFECTUS PRAETORIO
If someone shall become Jew from Christian and shall be joined to sacrilegious assemblies4 after the venerable law had been established,5 we decreed that his property shall be vindicated to the fisc’s dominion once the accusation were proven.
GIVEN ON THE FIFTH DAY BEFORE THE NONES OF JULY AT MILAN, IN THE CONSULATE OF CONSTANTIUS AUGUSTUS FOR THE NINTH TIME AND OF JULIAN CAESAR FOR THE SECOND TIME.6
size=1 color=black face="Times New Roman">This law does not require a commentary.
Codex Justinianus, 1:7:1, ed. Krüger, p.
60IMP. CONSTANTIUS A. AD THALASSIUM PP.
Si quis lege venerabili constitutus ex Christiano ludaeus effectus sacrilegis coetibus adgregetur, cum accusatio fuerit comprobata, facultates eiusdem dominio fisci iubemus* vindicari.
5 D. V NON. IUL. MEDIOLANO CONSTANTIO A. VIIII ET IULIANO C. IICONSS.
EMPEROR CONSTANTIUS AUGUSTUS TO THALASSIUS, PRAEFECTUS PRAETORIO
If someone established in the venerable law shall become Jew from Christian and shall be joined to sacrilegious assemblies, we decree7 that his property shall be vindicated to the fisc’s dominion once the accusation has been proven.
GIVEN ON THE FIFTH DAY BEFORE THE NONES OF JULY AT MILAN, IN THE CONSULATE OF CONSTANTIUS AUGUSTUS FOR THE NINTH TIME AND OF JULIAN CAESAR FOR THE SECOND TIME.
NOTES
1. Stein, I, p. 143.
2. See the apparatus criticus to this text in Mommsen’s edition, p. 888.
3. W. Ensslin, PW, 11:9, 1934, s.v. Thalassios, Col. 1200.
4. Assemblies: proselytism is conceived here as consisting of two elements, the proselyte’s adherence to, and his acceptance by the Jewish community.
5. Law...
established: Justinian’s editors, as well as at least one of the copyists of Codex Theodosianus, Godefroy and Browe, understood the term ‘lex’, “law” here to designate the Christian religion, and consequently emended the word ‘constituta’ so as to express the idea that the proselyte’s conversion constituted a repudiation of the Christian “Law.” Such emendations are unnecessary once the term ‘lex’ is seen as a reference to the public instrument of this law, issued prior to our text.6. Given... time: 3 July 357. For Constantius H’s visit to Rome in that year consult R. O. Edbrooke Jr., “The Visit of Constantius II to Rome in 357 and Its Effect on the Pagan Roman Senatorial Aristocracy,” American Journal of Philology, XCVII (1976), pp. 40-61; R. Klein, “Der Rombesuch der Kaisers Konstan- tius II im Jahre 357,” Athenaeum, LVII (1979), pp. 98-115.
7. We decree: Grupe saw the replacement of perfect tense in this Theodo- sian text by present tense in the Justinian adaptation as a typical example of inconsistency in the editors’ treatment of Imperial legislative decisions. See Grupe, XV, pp. 331-332. One should note, however, that this inconsistency is not always due to the later treatment of the texts by Justinian’s editors, for it can be found in the Theodosian Code.
BIBLIOGRAPHY
Godefroy VI: 1, pp. 244-245; Juster, I, pp. 260-261; Seeck, Regesten, pp. 46, 199; Browe, p. 119; Seaver, p. 33; Noethlichs, pp. 71-72; Avi-Yonah, p. 175; H. H. Anton, “Kaiserliche s Selbstverständnis in der Religionsgesetzgebung der Spätantike und päpstliche Herrschaftsinterpretation im 5. Jahrhundert,” Zeitschrift für Kirchengeschichte, LXXXVIII (1977), p. 49; Reichardt, p. 26; Vogler, pp. 52, 65.