7 Nomination of the Jews to the Curias A General Law of Constantine the Great 11 December 321
This law, given by Constantine the Great on 11 December 321, was known to the editors of Codex Theodosianus from the text originally sent to the decurions of Colonia Agripinensis (Cologne).
At that time Constantine ruled over the Western half of the Empire: Britain, Gaul, Spain, Africa, Italy, Ilyricum, and the Balkans with the exception of the diocese of Thrace, which had remained in Licinius’ hands since 314.The editors placed this law (CTh 16:8:3) in the Code after a later law, from 29 November 330 (CTh 16:8:2), a chronological error that was probably committed by the editors already in the stage of compiling the Code.
Constantine decreed in this law that Jews could be nominated to the Curia, while recognizing that this constituted a departure from the “ancient custom.” A considerable body of evidence proves, however, that this “ancient custom” was not adhered to everywhere, not even in the West. When Jews alleged the “ancient custom” they probably referred to their exemption from liturgies involving transgression of their religion (see above, Nos. 2 and 4). Constantine allowed, however, in order to soften the impact of this law, that two or three Jews in every curia should always enjoy exemption from all functions. Some historians interpret this privilege as a grant of exemption to two or three Jews in every city, but such a privilege would have been meaningless, for the decurions’ class represented a minority in every city, and it was certainly never identical with the entire Jewish community of any given city. Archi’s claim that this exemption was given to men of religion only, or Reichardt’s suggestion that it was reserved to representatives of the community, are both unsupported by the evidence.
It is one of the earliest laws in a legislative campaign designed to secure and regulate the recruitment of the curias and their functioning.1 The bulk of this campaign, some thirty out of the forty extant texts, was issued after Constantine’s victory over Licinius in 324, but our law shared with the other laws the same determination to secure the recruitment of the curias even at the expense of previously privileged groups, such as the Jews, the veterans and their sons, and even the Christian clergy.
According to Archi, Constantine’s policy on the curial service of Jews was formulated in two separate laws, which served as points of departure to two different legal practices, each of them peculiar to one of the two parts of the Empire. While the West maintained a rigid policy, founded on our law, the East evolved a milder and more tolerant policy, based on CTh 16:8:2 and CTh 16:8:4.Codex Theodosianus, 16:8:3, ed. Mommsen, p. 887
IDEM A.· DECURIONIBUS AGRIPPINENSIBUS
Cunctis ordinibus* generali lege concedimus ludaeos vocari ad curiam.* Verum ut aliquid ipsis ad solacium pristinae observationis* relinquatur, binos vel ternos* privilegio perpeti* patimur nullis nominationibus oc- 5 cupari.
DAT. Ill ID. DEC. CRISPO II ET CONSTANTINO II CC. CONSS.·
THE SAME AUGUSTUS2 TO THE DECURIONS OF COLONIA AGRIPINENSIS
We grant to all the curias3 in a general law, that the Jews shall be nominated to the curia.4 But in order to leave them something of the ancient custom5 as a solace, we allow them in a perpetual privilege6 that two or three in every curia7 shall not be occupied through any nominations whatever.
GIVEN ON THE THIRD DAY BEFORE THE IDES OF DECEMBER, IN THE CONSULATE OF THE CAESARS, CRISPUS FOR THE SECOND TIME AND CONSTANTINE FOR THE SECOND TIME.8
NOTES
1. J. Gaudement, “Constantin et les curies municipales,” lura, II (1951), pp.
44-75; D. Liebs, “Privilegien and Standezwang in den Gesetzen Konstantins,” RIDA, XXIV (1977), pp. 297-351.2. “Augustus” refers to Constantine the Great, who stayed that year in Illyricum, mainly in Sirmium. See Seeck, “Zeitfolge,” pp. 226-229.
3. Curias: the terms ‘senatus’ and ‘ordo decurionum’, shortened to ‘ordo’, and in Greek βουλή, designated the municipal councils in self-governing cities granted Roman or Italian rights, i.e., ‘municipiae’ and ‘coloniae’. It corresponded to the term ‘ordo amplissimus’, the Roman senate. While the term ‘ordo’ was commonly employed throughout the cities of the Empire since the first century b.c., the term ‘curia’ became predominant since the first century a.d., gradually replacing the term ‘senatus’. The legislator hesitated in 381 (CThstyle='font-size:8.5pt;font-style:normal'> 12:1:85) to employ the term ‘curiae senator’ (suae, si sic dici oportet, curiae senatorem), but Majorian’s seventh Novel from 458 opened with the unqualified declaration: ‘Curiales nervos esse rei publicae ac viscera civitatum nullus ignorat; quorum coetum recte appelavit antiquitas minorem senatum’. “No one ignores that the decurions are the nerves of the State and the entrails of the cities, and their assembly was rightly called in ancient times a little senate” (Mommsen-Mayer, ed., p. 167). Our law employs both ‘ordo’ and ‘curia’ to designate the municipal council. See H. Kiibler, PW, 1:8, 1901, s.v. Decurio, Cols. 2319-2352.
4. Nomination to the curia was expressed by various formulae, such as ‘vocare ad curiam’ and ‘nominare ad curiam’. In our text, however, the term ‘nominatio’ seems to refer to the nomination of decurions to offices and functions, rather than to nomination of citizens as decurions.
The association of this term with the verb ‘occupari’ certainly points in this direction. Compare also the phrasing of a regulation from 323 (CTh 12:1:8): ‘Decuriones ad magistratum vel exactionem annonarum ante tres menses vel amplius nominari debent’. “It is necessary that decurions be nominated to a magistracy or corn-tax collection three months or more prior (to their entry into function).”5. For the sense of ‘observatio’ as “custom,” “common usage” see Ulpian: ‘si non secundum legitimam observationem divortium factum sit’, “if a divorce was not carried out according to the legal usage” (Dig. 24:1:35); likewise Gellius: ‘Huius moris observationisque multa sunt testimonia atque documenta in antiquitatibus perscripta’. “Numerous testimonies and examples exist in ancient documents about this custom and usage” (Noctes Atticae, 5:13:3, ed. P. K. Marshall, Oxford 1968). See also ‘ager... finitur secundum antiquam observationem fluminibus, fossis, montibus...’, “a field is delimited, according to ancient custom, by rivers, ditches, mountains...” (lulius Frontinus, De Agrorum Qualitate, ed. C. Thulin, Leipzig 1913, p. 2). For additional meanings of the term in legal sources see H. Kübler, “Bemerkungen über den Sprachgebrauch der Kaiserkonstitutionen im Codex Justinianus,” ALL, XI (1900), pp. 459-461. On the relation between the concepts ‘consuetudo’, ‘ratio’, and “the common good” in the legislation of Constantine and Julian see R. Martini, “ ‘Consuetudo’ e ‘ratio’ nella costituzione di Costantino C. 8,52(53), 2 e nella patristica,” Atti dell’Accademia Romanistica Con- stantiniana (1 Convegno Internazionale, 1973), Perugia 1975, pp. 163-183.
6. Perpetual privilege: compare the use of this term in a law issued by Theodosius I in 393: “We wish the privileges of the doctors...
to be preserved in their entirety and to retain their perpetual force (perpetem firmitatem)," (CTh 13:3:15). A privilege was a special right, granted to persons or groups in a legislative act. Its only source was the Emperor’s good will, and it signified the exclusion of persons or groups from the common law sphere through grants of special immunities and rights. For a detailed discussion of the evolution of this term consult R. Orestano, “Ius singulare e privilegium in diritto romano,” Annali della R. Università di Macerata, XII-XIII (1939), pp. 5-106. The question of the duration of the privilege’s validity was extensively studied. Mommsen was of the opinion that privileges became void upon the death of the emperor who had granted them, and that their continued validity depended on a confirmation—actually a renewal—by the new emperor. This opinion is no longer unanimously accepted. Orestano demonstrated that the validity of privileges did not terminate with the death of the grantor, and that they were assumed to stand—in principle—indefinitely. Confirmations of old privileges by new emperors, consequently, are to be explained by purely practical considerations, not by any legal theory. See R. Orestano, “Gli editti imperiali—Contributo alla teoria della loro validità ed efficacia nel diritto romano classico,” BIDR, NS XLIV (1937), pp. 219-331; idem, “La durata della validità dei ‘privilegia’ e ‘beneficia’ nel diritto romano classico,” Studi Riccobono, III, Palermo 1936, pp. 470-487. Orestano’s conclusions were confirmed by various papyrological studies. See R. Taubenschlag, “Die kaiserlichen Privilegien im Rechte der Papyri,” ZSSRG, RA, LXX (1953), pp. 292-298. Godefroy interpreted our law as a recognition by Constantine of an existing “perpetual privilege,” although on a more limited scale than before.7. Although it is possible to translate here “two or three in any time,” we prefer to link ‘binos vel ternos’ with ‘ipsis’, and as the word ‘ipsi’ refers to the future decurions, it seems that “two or three in every curia” is the best translation.
The meaning of the privilege remains the same, either way.8. Given... time: 11 December 321. That year’s consulate was held by the two Caesars, Crispus and Constantine II, Constantine’s sons. As it was not recognized in the East, ruled at that time by Licinus, legal documents drafted during that year in the East were dated “In the consulate of the consuls nominated by our masters the Augusti.” The full subscription of our law provides therefore an additional indication of its western origin. One can safely assume that its validity was limited to the West until Licinius’ defeat in 324 and the subsequent reunification of the Empire under Constantine. See O. Seeck, “Neue und alte Daten zur Geschichte Diocletians und Constantins,” RhMus, LXII (1907), pp. 532-535.
BIBLIOGRAPHY
Godefroy, VI: 1, p. 242; Seeck, “Zeitfolge,” p. 229; Juster, II, p. 259; Seeck, Regesten, pp. 61, 171; Ferrari dalle Spade, “Privilegi degli Ebrei nell’impero romano cristiano,” Wenger Festschrift, II, Munich 1944, pp. 272-273 (= Scritti giuridici, III, 1956); Seaver, p. 29; Dörries, p. 184; A. Kober, “Coin,” Germania Judaica, I (1963), pp. 69-70; Noethlichs, pp. 34-35; Μ. Nuyens, Le statuì obliga- toire des décurions dans le droit constantinien, Louvain 1974, pp. 93-94; Linder, pp. 102, 110-111 (in Hebrew); Avi-Yonah, p. 163; Archi, pp. 63-70, 109-110; Reich- ardt, pp. 20-21; Vogler, pp. 43, 64.