3 On a Legacy to the Jews of Antioch A Rescript of Caracalla
30 June 213
This rescript of Caracalla from 30 June 213 was addressed to Claudius Tryphoninus, concerning a legacy left by Cornelia Salvia to the Jews of Antioch.
Its text has been preserved in Justinian's Code (CJ 1:9:1), whence it was accepted in the Basilica (Bas. 1:1:37). It was probably drafted by Arrius Menander, who served as Caracalla’s secretary about that time.1 Caracalla decided that this legacy was not to be executed through the court, although he did not invalidate the testament, probably because the legatee— the Jews of Antioch—was not named clearly and precisely, as the Roman law demanded, but designated in an imprecise and vague formula. But this decision could also be interpreted as a general prohibition to Jewish communities to receive legacies, and as such it contradicts the commonly accepted idea that the Jewish community was a legal organization, legally qualified to receive legacies, according to a senate’s decision from the reign of Marcus Aurelius—reported by Paul (Dig. 34:5:20)—which recognized this right to legally recognized organizations (collegia licitd). Various explanations were offered by historians puzzled by this apparent contradiction. Some maintained that the Antioch community was not legally recognized, unlike the other communities. Others held that the Jews of Antioch were organized in several Jewish communities, or that the testator was gentile, and for this reason her legacy to the Jewish community could not be executed through the court, or that Justinian’s editors perverted the original text by inserting in it the word ‘non’, thus inverting a positive into a negative decision. Others suggested, finally, that the reception of the Roman citizenship by the diaspora Jews in 212 was devoid of any practical significance, because the Jews lacked political organization and special laws.The problem raised by Cornelia Salvia’s legacy originated in the different positions maintained in regard to this type of legal action by the two legal systems relevant to the Jews of Antioch at that particular time, the Roman and the halachic.
While the drafting of Cornelia Salvia’s testament was inconsistent with the demands of the Roman law, it was completely regular from the halachic point of view, for Talmudic law does not invalidate arrangements ‘mortis causa’ because of doubts concerning the identity of the beneficiary. It can be seen as a typical example of the difficulties encountered by the Jews, who became Roman citizens in 212, and were expected to conform to Roman legal norms and practices, but continued to follow, in practice, their traditional legal norms and usages. Caracalla’s rescript should be seen, consequently, as dealing with the specific case of Cornelia Salvia’s legacy, rather than with the rights and status of the Antioch community in particular, or of the Jewish communities in general. The reception of this rescript into the Justinian Code invested it with a completely new significance. By the sixth century the term ‘universitas’ acquired a clear, precise legal meaning, that of organizations legally recognized as having a “juridical personality.” Furthermore, the editors expunged from the text all details referring to the specific circumstances of Cornelia Salvia’s legacy, thus transforming a rescript dealing with a specific question into a general prohibition, which amounted to denying the Jewish communities recourse to the courts in execution of legacies made in their favour.Codex Justinianus, 1:9:1, ed. Kruger, p. 61
IMP. ANTONINUS A. CLAUDIO TRYPHONINO*
Quod Cornelia Salvia universitati ludaeorum,* qui in Antiochensium civitate* constituti sunt,* legavit,* peti non potest.
D. PRID. K. IUL. ANTONINO A. IIII ET BALBINO CONSS.·
class=31 align=left style='text-align:left;text-indent:18.0pt;line-height: 145%'>EMPEROR ANTONINUS AUGUSTUS TO CLAUDIUS TRYPHONINUS2What Cornelia Salvia left as legacy3 to the community of the Jews,4 who dwell5 in the city of the Antiocheans,6 cannot be claimed in court.
GIVEN ON THE DAY BEFORE THE CALENDS OF JULY, IN THE CONSULATE OF ANTONINUS AUGUSTUS—FOR THE FOURTH TIME—AND BALBINUS.7
NOTES
1. T.
Honore, “ ‘Imperial’ Rescripts a.d. 193-305—Authorship and Authenticity,” JRS, LXIX (1979), p. 63.2. Claudius Tryphoninus was a Roman jurist, and a member of Septimius Severus’ council. If he is identical with the addressee of our rescript, then it is to be assumed that he acted in this matter either as the community’s lawyer, in a private capacity, or officially, as a public official serving in Antioch. See Jörs, PW, 1:6, 1899, s.v. Claudius Tryphoninus, Cols. 2882-2884; E. Groag & A. Stein, Prosopo- graphia Imperii Romani, II, Berlin 1936, pp. 255-256.
3. The legacy (legatum) was a part of the inheritance (hereditas) left by the testator to one who was not the heir (heres). This term appeared in Jewish sources in Hebrew transcription, as ptxfr or ptXPb. See for example: “For it is written, ‘And Abraham gave all that he had unto Isaac. But unto the sons of the concubines which Abraham had Abraham gave gifts’ (Gen. 25:5); if a father made ‘legaton’ to his children in his lifetime...” (BT Sanh. 91:1).
4. The community of the Jews: the term ‘universitas’ here had no legal significance; it did not indicate a corporate entity recognized by law prior to Justinian. This is probably a translation of a Greek term lacking legal precision which appeared in the original testament, such as “The Jews” (οί ’Ιουδαίοι). See Schnorr von Carolsfeld, pp. 78, 81; C. Saumagne, “Corpus Christianorum—Essai sur la notion juridique de corpus,” RIDA, Series 3, VII (1960), pp. 437-478.
5. Who dwell: the expression ‘constituti sunt’ is very similar to a formula known from numerous inscriptions from the Balkans, dating from the second century.
‘Cives Romani consistentes in...’ was used to indicate a community (conventus) of Roman citizens inhabiting towns lacking self-government or alien towns. For a discussion of this problem and numerous examples see V. Velkov, “Eine neue Inschrift über Laberius Maximus und ihre Bedeutung für die ältere Geschichte der Provinz Moesia inferior,” Epigraphica, XXVII (1965), pp. 90-109, especially pp. 97-99. The expression ‘constituti sunt’, however, conveys a stronger sense of an established, legal organization. Compare, however, the text of the reconstructed inscription from Castel-Porziano: ‘[Universitas] ludeorum [in col(onia) Ost(iensium) commor]antium’. “The community of the Jews who stay in the colony of the Os- tians” (CIJ, I, No. 533). This expression indicates a certain measure of instability, yet it served to designate communities of Romans in the above-mentioned situations. See, for example, a dedication-inscription to Germanicus, mentioning ‘cives Romani qui Suo morantur’, from the Tunisian Hanshir-Mara (AE, 1937, No. 71). On the assumption that Caracalla’s text transmitted a Greek term in a Latin translation, it is probable that Cornelia Salvia employed the expression οί κατοικούντες Ιουδαίοι, or a similar one, commonly used in regard to Roman citizens living in Greek towns, e.g., in Apamea. W. H. Buckler & W. M. Calder, Monumenta Asiae Minoris Anti- qua, VI, Manchester 1939, Nos. 177, 180, and 183; Synnada, ibid., No. 372; and Pelenna, AE, 1934, No. 163.6. City of the Antiocheans probably meant Antioch in Syria. On its Jewish population see C. H. Kraling, “The Jewish Community of Antioch Up to a.d. 600.’’ Journal of Biblical Literature, LI (1932), pp. 130-160; W. A. Meeks & R. L. Wilken, Jews and Christians in Antioch in the First Four Centuries of the Common Era, Missoula 1978.
7. Given...
Balbinus: 30 June 213.BIBLIOGRAPHY
Juster, I, pp. 432-434; L. Schnorr von Carolsfeld, Geschichte der juristische Person, Munich 1933, pp. 69-81; E. Schönbauer, “Reichsrecht, Volksrecht und Provinzialrecht,” ZSSRG, RA, LVII (1937), pp. 342-343; idem, “Deditizier, Doppel-Bürgerschaft und Personalitäts-Prinzip,” Journal of Juristic Papyrology, VI (1952), pp. 64-65; A. Berger, “Some Remarks on Caracalla’s Rescript CJ. 1:9:1 and its ‘Universitas ludaeorum’,” Iura, VIII (1957), pp. 75-86; J. J. H. Μ. Hanenburg, “De ‘Rechtspersoon’ in de Justiniaanse Wetgeving,” Tijdschrift voor Rechtsgeschie- denis, XXXI (1963), pp. 206-208; R. Yaron, “Reichsrecht, Volksrecht und Talmud,” RIDA, Series 3, XI (1964), pp. 281-298 = “Reichsrecht, Volksrecht and Talmud,” Studies in Roman Law, Jerusalem 1968, pp. 197-198, (in Hebrew); Ra- bello, “Tribute,” pp. 229-230; Langenfeld, p. 46; Alon, Jews, II, p. 690.