16 Interdiction on Christians from Participating in Pagan, Jewish and Manichaean Cults

Gratian (with Valentinian II, Theodosius)

21 May 383

This law, given on 21 May 383 at Padua by Gratian in his name and in the names of Valentinian II and Theodosius, was addressed to Hypatius, Praefectus Praetorio of Italy.

Only one manuscript (MS E) transmitted this text in its entirety, though not without corruptions. The Breviarium (Brev. 16:2:1) preserved a truncated version, consisting of the law’s first part and its subscription. Justinian’s editors may have interpolated a short fragment from it into CJ 1:7:2. It is identical to the version of MSE.

The law dealt explicitly with Christians who took part in non­Christian cults, and implicitly with apostate Christians. It thus lent the support of the State apparatus to the canonical legislation from the early fourth century,¹ and to the vigorous propaganda from the second half of that century, which combatted syncretistic currents within Christianity, and more particularly, the theurgical practices attached to them.² A similar law was passed, simultaneously, in Constantinople. Its text, addressed to the Praefectus Praetorio Postumianus, is preserved in CTh 16:7:2.

This law consists of the following measures:

(A) Christians who took part in pagan, Jewish, or Manichaean cults were to be punished. Those who turned to pagan cults were to lose their right to bequeath their property in a testament; par­ticipants in Jewish cults were to suffer unspecified punishments, while partakers in Manichaean cults were to be punished according to a law passed by Valentinian I on 2 March 372, probably CTh 16:5:3.

(B)  Identical or heavier penalties were to be imposed on the instigators of these activities, whether pagans, Jews, or Manichae- ans.

(C)  Appeals against the validity of testaments on these grounds had to satisfy two conditions: (1) legal proceedings were to be opened within five years of the testator’s death, and they were to follow the procedure usually applied in “avoidance of duty” cases; (2) the claimant had to prove that he opposed these activities of the testator when he was still alive.

Justinian’s editors received only the clause limiting the dura­tion for opening legal proceedings to five years, and omitted any reference to the Manichaeans. Their version pointed more clearly in the direction of apostasy rather than mere participation in non-Christian cults. They dated this law to 18 May, three days earlier than the date transmitted in the Codex Theodosianus, but their date is probably the more accurate.

Our law resembles those laws that allowed accusations against deceased persons on various grounds, such as high treason and heresy, but it also differs from them in at least one respect. It presupposes that the testator’s religious activities rendered him totally or partially incapable of bequeathing property in a testa­ment. His relatives could therefore contest such a testament in the “avoidance of duty” procedure. Deceased found guilty of high treason or of heresy, on the other hand, were deemed punishable from the time they initiated their illegal activity in full knowledge of its punitive sequels. The usual penalties reserved to these crimes, namely damnation of memory, invalidation of legal acts, and confiscation of property in the State’s favour, were therefore imposed retroactively, to cover the entire span of time commenc­ing with the beginning of the criminal design.

Codex Theodosianus, 16:7:3 (= Breviarium, 16:2:1), ed. Mommsen, pp. 884-885

IDEM AAA. AD HYPATIUM P(RAEFECTUM) P(RAETORI)O

Christianorum ad aras et templa migrantium negata testandi licentia* vindicamus admissum. Eorum quoque flagitia puniantur, qui Christianae religionis et nominis dignitate neglecta ludaicis semet pol- 5 luere contagiis. Eos vero, qui Manichaeorum nefanda secreta et scelerosos aliquando sectari maluere secessus, ea iugiter atque perpetuo poena comitetur, quam vel divalis arbitrii genitor Valentinianus adscrip- sit* vel nostra nihilo minus saepius decreta* iusserunt. Auctores vero persuasionis huius, qui lubricas mentes in proprium deflexerant consor- 10 tium, eademque reos erroris huiuscemodi poena comitetur, quin etiam graviora plerumque pro motibus iudicum et qualitate commissi extra or­dinem promi in nefarios sceleris huius artifices supplicia censemus. Sed ne vel mortuos perpetua vexet criminationis iniuria vel hereditariae quaestiones temporum varietate longorum prorsus emortuae in 15 redivivos semper agitentur conflictus, huiuscemodi quaestionibus metam temporis adscribimus, ut, si quis defunctum violatae atque desertae Christianae religionis accusat eumque in sacrilegia templorum vel in ritus ludaicos vel ad Manichaeorum dedecus transisse contendit eaque gratia testari minime potuisse confirmat, intra quinquennium iuge, quod 20 inofficiosis actionibus constitutum est,* proprias exerat actiones futuri­que iudicii huiuscemodi sortiatur exordium, ut eodem in luce durante, cuius praevaricatio* criminanda est, flagitii huius et sceleris praesens fuisse doceatur publica sub testificatione testatus, probet indicium, ne­que enim eam superno nomine tacitus praestitisse perfidiam sceleribus 25 adquiescens praevaricationem deinceps tamquam ignarus accuset.*

DAT.

THE SAME THREE AUGUSTI TO HYPATIUS, PRAEFECTUS PRAETORIO

style='font-size:9.0pt;line-height: 105%;font-style:normal'>We punish the crime of Christians passing over to altars and temples by abrogating their power to bequeath in testament.⁵ Also those who despised the dignity of the Christian religion and name and polluted themselves with the Jewish contagions shall be punished for their disgraceful acts. Those, however, who preferred, at any time, to frequent the Manichaeans’ execrable hideouts and their abomi­nable retreats, shall be visited always and perpetually by the punish­ment established by our father Valentinian⁶ in his divine decision, and decreed not less frequently⁷ in our verdicts.⁸ Indeed, the instiga­tors of this persuasion, who misled slipping minds to their peculiar fellowship, shall be visited by the same punishment as those guilty of such a deviation, moreover, we order that the nefarious perpetra­tors of this crime shall suffer generally harsher penalties than usual, according to the decision of the judges and to the nature of the crime. We establish, however, a time limit for trials such as this, in order that the deceased shall not be disturbed by the perpetual injury of an accusation, and that inheritance trials definitely settled with the passage of time shall not be revived into eternally inflamed conflicts. If someone shall accuse a deceased person of a desecration and desertion of the Christian religion and maintain that he passed over to the sacrileges of the temples or to the Jewish rites or to the Manichaeans’ infamy, and claim that on these grounds he was on no account capable of bequeathing in testament, he shall prefer private charges and obtain the opening of the future trial of this kind within five consecutive years, as is established in cases of ‘dereliction of duty’.⁹ On condition that it should be demonstrated—he shall testify in public and prove his accusation—that during the lifetime of the person whose transgression is the cause for accusation he was present¹⁰ of this crime and offence; and let him not accuse for this transgression as though he was ignorant of it, he who tacitly acqui­esced, in the supreme name, with perfidy¹¹ and treacherously con­sented to crimes.

GIVEN ON THE TWELFTH DAY BEFORE THE CALENDS OF JUNE AT PADUA¹² IN THE CONSULATE OF MEROBAUDES FOR THE SECOND TIME AND OF SATURNINUS.¹³

After “contagions”: The other part of the law, which dealt with the Manichaeans, is not copied, because it is found in greater clarity in the Novels.¹⁴—This law requires no commentary.

Codex Justinianus, 1:7:2, ed. Kruger, p.

IMPPP. GRATIANUS VALENTINIANUS ET THEODOSIUS AAA. AD HYPATIUM PP.

Si quis defunctum violatae atque desertae Christianae religionis accusat eumque in sacrilegia templorum vel in ritus ludaicos transisse contendit 5 eaque gratia testari minime potuisse confirmat, intra quinquennium iuge, quod inofficiosis actionibus constitutum est, proprias exserat actiones futurique iudicii huiuscemodi sortiatur exordium.

D. XV K. IUN. PATAVI MEROBAUDE II ET SATURNINO CONSS.·

THE THREE EMPERORS AND AUGUSTI GRATIAN VALENTINIAN AND THEODO­SIUS TO HYPATIUS, PRAEFECTUS PRAETORIO

If someone shall accuse a deceased person of a desecration and desertion of the Christian religion and maintain that he passed over to the sacrileges of the temples or to the Jewish rites, and claim that on these grounds he was on no account capable of bequeathing in testament, he shall prefer private charges and obtain the opening of the future trial of this kind within five consecutive years, as is estab­lished in cases of dereliction of duty.

GIVEN ON THE FIFTEENTH DAY BEFORE THE CALENDS OF JUNE AT PADUA, IN THE CONSULATE OF MEROBAUDES FOR THE SECOND TIME AND OF SATURNINUS.¹⁵

NOTES

1.        See, for instance, the decisions of the council of Eliberti, ca. 300, canons 1, 2, 49, and 59, as well as the decisions of the council of Ancyra from 314, canon 24.

2.        See M.

3.        The term ‘doctores’ probably designates here the διδάσκαλοι who were second only to the άρχήγος, “the leader,” in the Manichaean hierarchy. See H. J. Polotsky, PW,style='font-size:8.5pt;font-style:normal'> Suppi. VI, 1935, s.v. Manichaismus, Col. 262.

4.        For the evolution of this type of procedure based on charges against deceased persons consult E. Volterra, “Processi penali contro i defunti in diritto romano,” RIDA, III (1949), pp. 485-500.

5.        Testament: this prohibition goes back, in fact, to a law promulgated in the names of Gratian, Valentinian, and Theodosius I on 27 February 380. That law established a rhetorical distinction between “Catholic Christians” and ‘reliquos vero dementes vesanosque’, “the others, namely the demented and the insane” (CTh 16:1:2), but taken literally such a distinction could lead to designating them as persons incapable of bequeathing in testament or witnessing a testament. The same category includes also the ‘infami’, for a law from 8 May 381 specified that the Manichaeans, being 'infami’, are incapable of bequeathing in testament or act in Roman law (CTh 16:5:7). One observes a considerable expansion of legislation abrogating the right to bequeath in testament since 381, until it was extended to all heretics, Manichaeans, and Christian apostates. See Kaser, RPR, II, p. 486. Claim of insanity is known in classical law as an argument adduced by disinherited sons pleading a case of dereliction of duty. It was a rhetorical ‘color’ (color insaniae), according to the testimony of Marcellus: ‘resque illo colore defenditur apud iudi- cem, ut videatur ille non sanae mentis fuisse, cum testamentum inique ordinaret’, “and the matter is justified before the judge using this argument, in order that that person shall be seen as one who was not sane when he made the testament in an iniquitous manner” (Dig. 5:2:5). Marcian notes, however, that the claim of insanity should not be taken literally, for this would result in the complete invalidation of the testament (Dig. 5:2:2). Gratian’s legislation on this subject clearly reveals to what extent it was inspired by legal rhetorics.

6.        The law against the Manichaeans given by Valentinian on 2 March 372 (CTh 16:5:3). On this law, as well as the other laws passed against the Manichae­ans, consult E. H. Kaden, “Die Edikte gegen die Manichäer von Diokletian bis Justinian,” Festschrift H. Lewaid, Basle 1953, pp. 55-68.

7.         Not less frequently: a reference to “always and perpetually.”

8.        Verdicts given by the emperor sitting in judgment formed one of the types of the Imperial ‘constitutiones’. Though not binding on the judges in similar cases, nevertheless they had the authority of a precedent. They acquired a binding force similar to that of the Imperial edicts once they were officially published. See Hesky, PW, 1:8, 1901, s.v. Decretum, Cols. 2289-2291.

9.        Dereliction of duty: the legislator employed here a procedure evolved in cases concerning the validity of testaments which omitted the obligatory heirs, namely the testator’s relatives, or did not leave them the obligatory portion, i.e., the portion required by the testator’s moral duty towards his relatives. A complaint that a testa­ment was in dereliction of duty (querela inofficiosi testamenti) had to be presented within a year of the entry of the heir, and it was not allowed if it was not presented within five years. See also the contemporary law given on 28 May (CTh 2:19:5).

10.size=1 face="Times New Roman">      Present: the text, as transmitted, is undoubtedly corrupt in this place. It should be emended, and a short clause added to it, in order to arrive at a reason­able reconstruction. The following translation is based on the reconstruction sug­gested by Mommsen: “... cause for accusation he opposed this crime and of­fence; for if it were demonstrated that one tacitly acquiesced with someone who went against the supreme god and thus perfidiously consented to crimes, let him not accuse for this transgression as though he was ignorant of it.” This emendation is inspired by a similar condition in a law from 426 (see below, No. 52).

11.      Perfidy: compare the definition offered at that time by Ambrosius: ‘Recte praevaricator dicitur, qui discedit a Domino, denique Graece a discedendo Apostata nominatur’. “Praevaricator is rightly called one who leaves God; indeed he is designated Apostata in Greek, from leaving”; see In Psalmum CXVIII Expo- sitio, Sermo 15, ed. F. du Frische & N. Le Nourry, PL, XV, Cols. 1421-1422. For the evolution of the term ‘praevaricatio’ from the strictly legal meaning of lawyer’s perfidy against his client to the religious context of perfidy in regard to the law, namely religion, see E. Levy, “Von den römischen Anklägervergehen,” ZSSRG, RA, LIII (1933), pp. 177-211.

12.      Padua: genitive is the usual case employed with the name Patavium in the legal texts, although the ablative is not unknown. See P. Krüger, “Beiträge zum Codex Theodosianus, IV: Über den Gebrauch von Genetiv und Ablativ in den Ortsangaben der Subskriptionen,” ZSSRG, RA, XXXVII (1916), p. 101.

13.      Given... Satuminus: 21 May 383.

14.      Novels: an explanatory note appended by the editors of the Breviarium, as to their reason for omitting the second part of the law. They refer to Valentinian Ill’s second Novel.

15.      Given... Satuminus: 18 May 383.

BIBLIOGRAPHY

Godefroy, VI: 1, pp. 227-229; Juster, I, pp. 261-262; G. Ferrari dalle Spade, Osservazioni sulla trasmissione diplomatica del Codice Teodosiano e sulla interpreta­tio Visigotica, Padua 1915 = Scritti giuridici, II, Milan 1954, pp. 249-250; Seeck, Regesten, p. 262; Browe, p. 119; Seaver, p. 47; Noethlichs, pp. 108-110, 117; Rabello, Legal Condition, pp. 402-403 n. 124.