41 Demotion of Gamaliel VI and Restriction of His Authority (Honorius with) Theodosius II
20 October 415
This law, given by Theodosius II in his name and in the name of Honorius at Constantinople on 20 October 415, was addressed to Aurelian, Praefectus Praetorio of the East.
Its text has been preserved in Codex Theodosianus (CTh 16:8:22), with one sentence adapted and received into Codex Justinianus (CJ 1:9:15).Aurelian was informed, in this law, that Patriarch Gamaliel had been demoted from the rank of Illustrious Honorary Praefectus Praetorio, and his authority and powers restricted, due to some unspecified actions he had taken. The legislator enumerated the restrictions to be imposed in the future on the patriarch, but this list does not prove that all the items it enumerated were already prohibited by law. Only the last two items on the list are specifically designated here as illegal. The restrictions are as follows:
(A) Prohibition was placed on the foundation of new synagogues. Such a prohibition is not documented before 415. The first law on this subject was promulgated by Theodosius II after 15 February 423 (see below, No. 47).
(B) Synagogues in deserted places were to be destroyed, provided that this could be accomplished without causing riots.
(C) The patriarch was stripped of any right to judge Christians. This restriction could be seen as a logical result of the law of 3 February 398 (see above, No. 28), which regulated the judicial rights of the patriarchs and their officials over the Jews. That law, however, did not prohibit the patriarchs expressely from judging Christians, and, furthermore, it rendered their authority in civil cases conditional upon the agreement of both parties.
Evidence from Palestine proves, in fact, that non-Jews did apply to Jewish courts in the Late Byzantine period, and that they were required to present an arbitration document (compromisum) in order to be accepted by these courts.1 Our law should be interpreted, therefore, as a prohibition on Christians from applying to the patriarch’s court.(D) Trials between Jews and non-Jews should be held in the courts of the governors of provinces.
(E) If the patriarch, or any other Jew, should convert a nonJew to Judaism, whether freemen or slave, he was to be punished.
(F) Christian slaves held by the patriarch should be transferred to the ownership of the Church.
Justinian’s editors rephrased the fourth item to make it correspond to a situation in which patriarchs were no longer in existence; they replaced the term “Patriarch” with that of “Elders of the Jews,” the common Jewish authorities in the diaspora during the sixth century.
Our law testifies to an important demotion in the personal rank of Gamaliel VI. Laws from 17 April 392, 24 April 396, and 1 July 397, referred to the patriarch, probably Juda IV, with the title of “Illustrious.” Gamaliel VI, his successor, had a right to the comparatively inferior title of ‘Spectabilis’ in a law dated 3 February 404, but this reflects, probably, the rank he was entitled to immediately after his ascension on the patriarchal throne rather than a hypothetical disgrace. In effect, between this date and 415 he was granted the superior title of “Illustrious,” linked with the honorary title of praefectus praetorio. As a consequence of his disgrace and demotion he reverted to his former rank of ‘Spectabilis’.2
Codex Theodosianus, 16:8:22, ed.
Mommsen, pp. 892-893IDEM AA.· AURELIANO P(RAEFECTO) P(RAETORI)O II·
Quoniam Gamalielus* existimavit se posse inpune delinquere, quo magis est erectus fastigio dignitatum, inlustris auctoritas tua sciat nostram serenitatem ad virum inl(ustrem) mag(istrum) officiorum* 5 direxisse praecepta, ut ab eo codicilli* demantur honorariae praefecturae,* ita ut in eo sit honore, in quo ante praefecturam fuerat constitutus ac deinceps nullas condi faciat synagogas et si quae sint in solitudine, si sine seditione possint deponi, perficiat, et ut inter Christianos nullam habeat copiam iudicandi; et si qua inter eos ac ludaeos sit contentio, a rectoribus* provinciae dirimatur. Si Christianum vel cuiuslibet sectae hominem ingenuum servumve ludaica nota* foedare temptaverit vel ipse vel quisquam ludaeorum,* legum* severitati subdatur. Mancipia quoque Christianae sanctitatis si qua aput se retinet, secundum Constantinianam legem* ecclesiae mancipentur.
15 DAT. XIII KAL. NOV. CONSTANT(INO)P(OLI) HONORIO X ET THEODOSIO VI AA. CONSS.·
THE SAME TWO AUGUSTI3 TO AURELIAN, PRAEFECTUS PRAETORIO FOR THE SECOND TIME4
New Roman">Since Gamaliel5 supposed that he could transgress the law with impunity all the more because he was elevated to the pinnacle of dignities, Your Illustrious Authority shall know that Our Serenity has directed orders to the Illustrious Master of the Offices,6 that the appointment documents7 to the honorary prefecture8 shall be taken from him, so that he shall remain in the honour that was his before he was granted the prefecture; and henceforth he shall cause no synagogues to be founded, and if there are any in deserted places, he shall see to it that they are destroyed, if it can be done without sedition.
He shall have no power to judge Christians; if any contention shall arise between them and Jews it shall be settled by the governors of the province.9 If he himself, or one of the Jews,10 shall attempt to defile a Christian or a member of any sect whatsoever, slave and freeman alike, with the Jewish mark of infamy,11 he shall be subjected to the laws’ severity.12 If he holds slaves who partake of the Christian sanctity, they shall be handed over to the Church according to the law of Constantine.13GIVEN ON THE THIRTEENTH DAY BEFORE THE CALENDS OF NOVEMBER AT CONSTANTINOPLE, IN THE CONSULATE OF THE TWO AUGUSTI, HONORIUS FOR THE TENTH TIME AND THEODOSIUS FOR THE SIXTH.14
Codex Justinianus, 1:9:15, ed. Krüger, p. 62
IDEM AA. AURELIANO PP.
Si qua inter Christianos et ludaeos sit contentio, non a senioribus ludaeorum, sed ab ordinariis iudicibus* dirimatur.
D. XIII K. NOV. CONSTANTINOPOLI HONORIO X ET THEODOSIO VI AA. CONSS.
THE SAME TWO AUGUSTI TO AURELIAN, PRAEFECTUS PRAETORIO
If any contention shall arise between Christians and Jews, it shall not be settled by the elders of the Jews but by the ordinary judges.15 GIVEN ON THE THIRTEENTH DAY BEFORE THE CALENDS OF NOVEMBER AT
CONSTANTINOPLE, IN THE CONSULATE OF THE TWO AUGUSTI, HONORIUS FOR THE TENTH TIME AND THEODOSIUS FOR THE SIXTH.
NOTES
1. Legal practice in Palestine was reflected in Sefer ha-Maasim li-vnei Eretz-Israel, which dealt with the question of a Gentile applying to a Jewish court. According to the opinion of R.
Akiva on the law to be applied in that case, this work determined and specified that “... provided that he shall write a KD^OTlDIp (compromisum) in order to receive judgement” (Mann’s edition, Tarbiz, XI:3 (1929/30), p. 8). Compare R. Yohanan’s definition recorded in the Palestinian Talmud: “Arbitration documents: R. Yohanan said pOWlDDIp” (Moed-Katan, 3:3).2. On the chronology of the patriarchs consult S. Safrai, Encyclopaedia Judaica, II, Jerusalem 1971, s.v. Amor aim, Col. 871.
3. Augusti: Honorius and Theodosius II.
4. Time: Aurelian held numerous government posts after the late fourth century. He served as Praefectus Praetorio of the East for the second time in 414416. See Haehling, pp. 79, 82-83; PLRE, I, s.v.
5. This probably referred to Gamaliel VI. The evidence on both Gamaliel V and Gamaliel VI was indiscriminately assembled in O. Seeck, PW, 1:13, 1910, s.v. Gamaliel, Col. 690.
6. Master of the Offices: This office was held between 30 November 414 and 19 August 427, by Helion. See PLRE, II, s.v.; Seeck, Regesten, p. 455.
7. An appointment document was issued by the emperor to an office or to a title. Appointment documents to the highest offices, such as the office of praefectus praetorio, were delivered in bindings of gold and ivory. See O. Seeck, PW, 1:7, 1900, s.v.
Codicilli, Cols. 179-183.8. Honorary Prefecture: it had become customary, from the fourth century, to grant titles of offices devoid of actual duty, yet accompanied by all the honours and privileges peculiar to these offices. Holders of nominal offices (honorarii) were considered inferior to actual office-holders (vacantes). These two groups were distinguished, in 440/41, in that the ‘vacantes’ were granted their office with a military belt (cingulum), while the ‘honorarii’ were granted their title with appointment document (codicilli) and insignia (insignia). A further distinction related to the manner of appointment, whether in the emperor’s presence or through a messenger. Assuming that all these criteria were regularly applied in 415, Gamaliel VI had a right to the third-grade rank, with the ‘honorarii’ who received their title from the emperor in person in an appointment document, or to the fourthgrade rank, with the ‘honorarii’ who were granted their title not in the emperor’s presence and had the insignia sent to them. As honorary praefectus praetorio he had a right to the highest rank in each of these two groups, outranking all holders of lower offices in all the two other groups. See Jones, Empire, p. 535; B. Kiibler, PW, 11:14, 1948, s.v. Vacantes, Cols. 2024-2026.
9. Province: Mommsen corrects here to “governor (rector) of the province.”
10. Or one of the Jews: Sollazi believes that this clause was added by Theodosius’ editors, in order to weaken the law’s personal character and strengthen its general scope. See Solazzi, p. 399; M. A. de Dominicis, “Registro delle alterazioni (glossemi ed interpolazioni) nelle costituzioni del Codice Teodosiano e nelle novelle posteodosiane segnalate dalla critica,” BIDR, NS, LVII-LVIII (1953), p. 436.
11. “Jewish mark of infamy” referred to circumcision.
style='font-size:8.5pt;font-style:normal'>12. Laws’ severity: conversion to Judaism, mainly of slaves, was prohibited by the following pre-415 laws: (a) a law of Constantine from 21 October 335 (see above, No. 10); (b) a law of Constantine II from 13 August 339 (see above, No. 11); (c) a law of Theodosius from September 384 (see above, No. 17); (d) a law of Honorius from 1 April 409 (see above, No. 39).
13. According to Eusebius, Constantine prohibited the possession of Christian slaves by Jews. See Εις τον βίον τοΰ μακαρίου Κωνσταντίνου βασιλεως, IV:27, ed. L. A. Heikel, GCS, VII, 1902, p. 127. This law, not extant in the Codes, was probably given after 335, for Constantine prohibited on that year the conversion to Judaism of Christian slaves by their Jewish masters. Their possession by Jews, therefore, was still legal. A fragment of a law given by Constantine II in 13 August 339 (see above, No. 11) prohibited explicitly, for the first time, the acquisition by Jews of non-Jewish slaves, and in particular of Christian slaves. It is quite possible that our law refers to this law, and if this is the case, it proves that this prohibition was attributed in 415 to Constantine the Great or to Constantine II. A similar prohibition was enacted by Theodosius I (see above, No. 17).
14. Given... sixth: 20 October 415.
15. “Judges” referred to the governors of the provinces in their judicial role. See A. Berger, Encyclopedic Dictionary of Roman Law, Philadelphia 1953, s.v. Iudex Ordinarius. On the use of the construction ‘non... sed’ by Justinian’s editors consult Honore, p. 221.
BIBLIOGRAPHY
Godefroy, VI: 1, pp. 262-263; Juster, I, pp. 164 n. 1, 397, 470; Seeck, Regesten, p. 331; Browe, pp. 118, 120 n. 54; Solazzi, “Fra norme,” pp. 397-399; Stein, la, p. 562 n. 119; Seaver, pp. 71-72; Demougeot, “Honorius,” pp. 285-287; Avi-Yonah, pp. 227-228; Langenfeld, pp. 70-77, 89-94; Reichardt, pp. 22, 36; Vogler, pp. 57-58, 70.