Early Christian Writings as Sources for Reconstructing Roman Law
But let us read what the Emperor Antoninus [Caracalla] has established concerning this question: he was certainly not a Christian... The following are the words of the Emperor mentioned above, as they appear in the Codex Gregorianus...
(Augustine, On Adulterous Marriages 2.8.7)
This section briefly surveys early Christian writings as extra-legal sources for Roman legal texts, for jurisprudential writings and substantive legal principles, and for legal documents.
It also discusses the extent to which early Christian writings can help us to reconstruct Roman law principles and administrative/legal procedures, particularly with respect to the later Roman (postclassical) period. As noted above, Rotondi's 1922 ‘Index' gives an extensive list of promising references to Roman law in ‘extralegal' Latin sources from the fourth to seventh centuries - although not all of these references are as direct or technical as the Roman legal scholar might hope. We should also note that there is no index comparable to Rotondi's for extra-legal sources written in Greek or Syriac. My intention here is not to repeat Rotondi's list; nor is that possible, given the sheer breadth and range of early Christian texts in Greek, Latin and other languages, to provide anything that would even remotely approximate a complete overview of either the literature or the complexities involved. This section aims only to provide the reader with a general sense of the range and potential of early Christian writings as extra-legal sources for Roman law.There are a handful of passing mentions to specific Republican leges, plebiscita and senatusconsulta in early Christian writings, as well as more detailed references such as Jerome’s note on the lex Falcidia or Augustine’s discussion of the S.C.
de Bacchanalibus.30 There are also a few allusions to the edicta of various magistrates, including the urban praetor at Rome.31 Early Christian writings have played a more significant role, however, in the modern construction of palingenesiae of imperial constitutions, where they are used alongside legal sources and non-Christian literary texts, as well as epigraphic, papyrological and numismatic evidence, in order to reconstruct imperial texts as they appeared in the editions from which the surviving fragments were extracted.32 As noted in Section 1, the Accademia Romanistica Constantiniana has sponsored a major and long- running initiative to produce palingenesiae of imperial constitutions: ‘normative’ rescripts, mandata, edicta, letters and other communications issued by imperial chancelleries between the ages of Constantine I and Theodosius II. Alongside 20 international conferences to date, the Accademia’s series ‘Materiali per una Palingenesi delle Costituzioni Tardo-Imperiali’ includes volumes on Roman law in the writings of Ambrose of Milan and the letters of Pope Leo the Great, as well as palingenesiae of imperial constitutions for the reigns of Constantine; Constantine II, Constantius II and Constans I (337-361); and Valentinian and Valens (364-375) - all of which cite Christian sources as and when relevant.33Turning now to a brief chronological overview of early Christian writings as sources for later Roman imperial constitutions, we begin with the reign of Caracalla (AD 211-217). Coriat identifies three fourth- and fifth-century Patristic texts that contain an echo of the celebrated constitutio Antoniniana of AD 212, though none go beyond a level of general knowledge.34 In contrast, Augustine’s treatise ‘On Adulterous Marriages’ (de coniugiis adulterinis) cites a rescript issued by Caracalla, lacking the inscriptio and subscriptio but quoted in some detail from the Codex Gregorianus (a semi-official collection of imperial constitutions from the reign of Hadrian up to May 291, compiled under the First Tetrarchy).
Ulpian cited the same rescript in the second book of his commentary Ad legem Iuliam de adulteriis (D. 48.5.14.5).35 The compiler of the late-fourth- century lex Dei (or Collatio Legum Mosaicarum et Romanarum) also apparently worked from a copy of the Codex Gregorianus, as well as the Codex Hermogenianus. The lex Dei reproduces the famous Diocletianic rescript against the Manichees, probably issued in 302, in addition to an edict against close-kin marriage given at Damascus on 1 May 295.36Christian sources for imperial orders relating to anti-Christian ‘persecutions’, on the other hand, can be notoriously tricky to evaluate as historical documents.37 Many Christian martyr acts take the form of records of judicial proceedings, but their accuracy is much debated. It should not be assumed, however, that all imperial constitutions quoted in extra-legal Christian sources are necessarily suspect. In his Ecclesiastical History Eusebius of Caesarea (c. 260-339) quotes some 250 original documents in full and summarizes a further 100 or so. Two of these documents are Greek rescripts of the emperor Gallienus - it is impossible to establish whether Eusebius translated the texts himself or whether they were in fact circulating in official Greek translations, but there is no reason to doubt their genuineness.38 In fact, books eight to ten of Eusebius’ Ecclesiastical History, as well as his Life of Constantine and other writings, are crucial - albeit contested - sources for imperial pronouncements throughout the Tetrarchic and Constantinian periods - as are Lactantius’ On the Deaths of the Persecutors and The Divine Institutes. The writings of both Eusebius and Lactantius are ‘rich in texts and translations of original documents, since there was a strong need for authentic imperial documents to illustrate and bolster their argument or narrative’.39 Other Christian sources that provide us with otherwise unattested early-fourth century imperial communications relate to the North African Donatist schism: in particular, Optatus of Milevis’ Appendix to his work Against the Donatists, c.
370 (ten documents, of which six are imperial letters) and polemical works by Augustine of Hippo.40Roman emperors addressed rescripts and letters to Christian ecclesiastics before the early fourth century, as the involvement of the emperor Aurelian (270-275) in the case of Paul of Samosata demonstrates.41 The fourth-century establishment of the Christian Church as an institution under imperial patronage, however, meant that later Roman emperors frequently legislated on and responded directly to ecclesiastical affairs. Two volumes in the modern series Sources Chretiennes conveniently collect together excerpts from imperial constitutions issued between AD 312 and 438 that relate to religious matters and were included in the Theodosian Code, the Sirmondian Constitutions and Justinian’s Code.42 Alongside these legal sources, there are also a number of late Roman imperial constitutions, some of which are otherwise unknown, reported in extra-legal Christian sources (see the modernpalingenesiae noted above). The Collectio Avellana contains 244 communications dating from AD 367 to 533 - some written by emperors as well as addressed to them - of which over two hundred are preserved only in this collection.43 The Collectio Avellana itself was probably compiled in the mid-sixth century, by a clerical notary who had access to the archives of the bishopric of Rome. The AD 411 ecclesiastical conference of Carthage, held at the command of the Emperor Honorius and under the presidency of the ‘tribunus et notarius’ Flavius Marcellinus, also had many legal documents read into its record, including the imperial sanctio for the conference itself and other imperial mandata, as well as a number of magisterial edicta.44 In fact, the record from this council, recorded by both ecclesiastical and imperial stenographers, provides a wealth of information on later Roman forensic procedures and practices.
Conciliar Acts, proceedings and related documents from the fourth- to sixth-century regional and ecumenical councils of the church, are an important source of otherwise unattested imperial communications45 - in particular the documents and texts transmitted as part of the Acts of the Council of Ephesus (431), the second Council of Ephesus (449, the so-called ‘robber council’ at which Eutyches was tried for various crimes), the Council of Chalcedon (451) and the Council of Constantinople (553).46 When using ecumenical conciliar Acts as extra-legal sources we need to remember that the emperors themselves were part of the original intended audience and that the Acts are by no means simply disinterested records of events.
As the nineteenth-century scholar Eduard Schwartz warns: ‘One can, indeed one must, regard all the manuscript collections of council acts as propaganda.’47 The later copying of imperial constitutions and other legal texts by ecclesiastical notaries and copyists should perhaps be seen from a similar perspective: the Roman imperial texts copied into the Collectio Avellana, for example, were assembled with mid-sixthcentury (Roman) controversies in mind. Likewise ‘the Sirmondian constitutions’, as the text has been referred to since the seventeenth century, was copied by ecclesiastical scribes and appended to a collection of canons from Gallic church councils; the choice of these specific 16 imperial constitutions, dating from AD 333 to 425, dealing for the most part with ecclesiastical matters, undoubtedly reflects the contemporary concerns of the copyists themselves.48Finally, with respect to early Christian writings as sources for later Roman imperial constitutions, we should also note the three fifth-century Greek historians of the church: Socrates, whose Ecclesiastical History dates to 439; Sozomen, a practising advocate in Constantinople, who completed his history around 443; and Theodoret of Cyrrhus, writing c. 449. All three wrote after AD 438 and each, like their models Eusebius and to a lesser extent Rufinus, ‘included a large number of original documents, letters of bishops, synods, and emperors, especially Constantine and Constantius II. Yet they virtually ignore the almost two hundred laws included in Book 16 of the Theodosian Code.’49 The constitutions excerpted in the Theodosian Code are, of course, in Latin, whereas Sozomen cites (existing) Greek translations of imperial letters, possibly sourced via his own forensic practice. From at least the mid-fifth century, then, Christian sources from the East can be used as direct witnesses to what Fergus Millar has termed ‘A Greek Roman Empire’.50
Moving on to early Christian texts as sources for juristic writing and substantive Roman legal principles, this type of evidence can be particularly difficult to evaluate.
Arnobius, Ambrose, the ‘Ambrosiaster’, Jerome and Augustine all refer to the postclassical Roman distinction between leges and iura, where iura refers specifically to juristic writings (rather than to ‘law’ or ‘rights’ in the more general sense of droit, diritto, Recht, etc.).51 But direct references to particular jurists or works of jurisprudence are relatively rare. Tertullian’s ‘On the Crown’ (de Corona) 4.6, for instance, is clearly related to the jurist Julian’s celebrated definition of custom (D. 1.3.32) but does not name it as a source.52 Lactantius, on the other hand, evidently had access to Ulpian’s On the Office of the Proconsul and his Commentary on the Edict, as well as perhaps his Commentary on the Provincial Edict and treatise On Adultery.53 Scholars have identified a number of other references to Roman juristic texts in early Christian literature, including allusions to Marcian in Ambrose and Ulpian in Augustine, in addition to excerpts from the writings of Gaius, Papinian, Ulpian, Paul, and Modestinus (possibly with postclassical emendation) in the lex Dei.54 Modern scholars have suggested numerous references to substantive principles of Roman law — including rules concerning property, inheritance, intestacy, trusts, dowries, donations, loans, sales, pledges, and so forth - in the writings of Minucius Felix, Cyprian, Arnobius, Lactantius, the ‘Ambrosiaster’, Ambrose, Jerome, Augustine, Isidore ofPelusium, Asterius of Amasea, Peter Chrysologus and various monastic texts.55 Some are more convincing than others. As Gaudemet states: ‘Searching for law in extralegal works is not without danger. If it is not absent, it may appear only incidentally, often in a veiled or imprecise way.’56 In fact, many of the references to legal principles in later Roman Christian texts should perhaps be understood in terms of dynamic argument, rather than legal doctrine. We will return to this point in Section 3.Some early Christian texts can be used as sources for the reconstruction of various kinds of legal documentary evidence, including acta from civil, ‘criminal’ and ecclesiastical trials as well as legal petitions. Alongside the much-debated evidence from Christian martyr acts, Optatus and Augustine reproduce legal acta, copied from municipal and imperial bureaucratic archives, relating to the ‘Donatist’ controversy.57 In his 405/06 treatise against the works of the ‘Donatist’ layman and grammarian Cresconius, for instance, Augustine inserts what he claims to be ajudg- ment of the proconsul Aelianus from almost a century earlier and then advises his audience that: ‘If you wish to read all the verbal acts take yourself to the archives of the Proconsul’.58 We also have documents associated with ecclesiastical and imperial hearings against Athanasius of Alexandria, Priscillian of Avila and Damasus of Rome, amongst others.59 Early Christian writings also cite the texts of legal petitions addressed to emperors and magistrates, as well as those intended for use in legal processes internal to the church. Optatus, for instance, apparently cites a petition of AD 313 from a group of North African bishops to Constantine, forwarded by Anullinus, the Proconsul of Africa, and also gives an extract from the imperial rescript issued in response (1.22.2 and 1.23.1). Letter 2 of the Collectio Avellana is a Latin petition from two priests addressed to the emperors Valentinian, Theodosius I and Arcadius (AD 383 or 384); Letter 2a is the imperial response, addressed to the PPO Cynegius.60 Letter 17 of the Collectio Avellana is also a petition drafted on behalf of Christian priests, this time to the emperors Honorius and Theodosius II (AD 419); Letter 18 gives the corresponding rescript. Collectio Avellana Letter 232a is the copy of a petition dating to almost a century later (AD 520), addressed to the Emperor Justin I from Syrian monks, clergy and possessores. The texts of six petitions, some in summary form, are preserved via the Acts of the Church Council of Ephesus (431); with nine from the Acts of the Council of Chalcedon (451), three with corresponding imperial rescripts; and five from the Acts of the Council of Constantinople (553). 1 Finally, with respect to legal documents, there are a number of early Christian writings that provide evidence for the documentary forms of various kinds of (written and oral) contracts and testamentary dispositions.
Conciliar records, ecclesiastical documents and other early Christian writings also provide evidence for various Roman legal and administrative procedures and processes, at both the municipal and the provincial levels. The writings of elite Christian bishops such as Ambrose of Milan, the provincial governor of Aemilia and Liguria before his episcopal consecration as well as a former advocate and assessor (legal advisor) in the praetorian prefect’s court at Sirmium, often draw sharp contrasts between the administrative functions of imperial bureaucrats and the pastoral, liturgical and ascetic functions of clerical offices. These contrasts can also include distinct attitudes towards judicial torture and penal condemnation, as well as expectations of justice.62 Nonetheless, late Roman bishops also made use of Roman legal and administrative models to frame their episcopal activities: Gregory, bishop of Nazianzus, for instance, models his Oration 42 - a logos apologetikos (‘plea in his defence’) - on the formal rendering of accounts required from imperial officials when they left military command, the government of a province or a financial office.63 The influence of late Roman law is particularly evident, however, in the procedural rules and regulations that were developed with reference to synodal or conciliar tribunals. For example, a synodal disciplinary hearing usually opened with a personally presented libellus of complaint from the plaintiff, through which a demand was made that the defendant be summoned - the granting of the summons by the synod was thus to be understood as an official act, analogous to the same procedure in a late Roman civil cognitio.64 Other legal procedures referred to in early Christian writings include slave manumissions conducted in Christian churches, as well as records relating to concrete cases of mediation, formal arbitration and (delegated) legal judgment undertaken by Christian clerics.65
In Section 2 our focus has been on early Christian writings as extralegal sources for Roman imperial law and legal concepts, in addition to their value as sources for legal practice in the sense of providing evidence for documentary texts and concrete legal procedures. In Section 3, however, we turn more explicitly to Christian writers and ecclesiastics as concrete actors within the late Roman legal sphere.
3.