54 Policy in Regard to Jews, Samaritans, Pagans, and Heretics

Theodosius II (with Valentinian III)

31 January 438

This law, given by Theodosius II in his name and in that of Valen­tinian III at Constantinople on 31 January 438, was addressed to Florentius, Praefectus Praetorio of the East.

Justinian’s editors divided it into three separate texts, and com­pleted the original and incomplete subscription by three different Western consulates, all of which corresponded to three different Eastern consulates of Theodosius II. They preserved the correct number (XVI) of Theodosius H’s consulate only in CJ 1:5:7, and only there were they able to complete it successfully with Faustus’ name, the Western consul for that year. In CJ 1:7:5, on the other hand, they introduced a wrong consulate number—XV, dated it accordingly to 435, and completed it, erroneously again, by the fourth consulate of Valentinian III.

Nau and Demougeot date this law to 439, and believe that it reflects Eudocia’s anti-Jewish sentiments after her return from Je­rusalem, where she got involved in a conflict between Jews and militant monks. They are wrong, however, for our law was prom­ulgated prior to Eudocia’s return from Jerusalem. Her sentiments and opinions could have no bearing on the issue of this law. It seems to reflect the strong piety that reigned in the court on the return of the relics of Johannes Chrysostomus to Constantinople and their public inhumation in the church of All the Apostles on 27 January 438.

The law dealt with three groups: (a) Jews and Samaritans; (b) pagans; (c) heretics. The chancellery employed the traditional tri­partite division when dealing with these groups (see, for more examples, Nos. 48 and 49 from 423). The association of Jews and Samaritans in one group conformed, again, to a well established usage of the chancellery, documented in laws issued in 390, 404, and 426 (see above, Nos. 19, 33, 52). This law did not innovate in any way in regard to the Jews, it rather repeated previous legisla­tion on this subject, a clear indication that these laws were not observed in practice when the present law was drafted and issued.

The measures enunciated in regard to Jews and Samaritans are as follows:

(A) Prohibition to serve in the Imperial administration or to hold offices of dignity in the municipal government. They are only permitted to serve as decurions or Cohortalins. Those still serving in the prohibited offices were to be dismissed.

(B)  Prohibition to construct new synagogues, accompanied by a permission to repair the old ones. This represented a reiteration of laws from 415 and 423 (see above, Nos., 41, 49).

(C)  Prohibition to proselyte slaves as well as free persons, willingly or by force. On this point the legislator repeated legisla­tion from 415, 417, and 423 (see above, Nos. 41, 44, 48). The punishment imposed for circumcising Christians, death and confis­cation of property, was harsher than that decreed on 9 April 423, namely banishment for life and confiscation of property.

The Visigothic Commentary summarized, briefly and faithfully, those measures that concerned Jews and Samaritans, and ignored the measures that dealt with Pagans and heretics. A similar ap­proach to this law was adopted by Justinian’s editors. By their reception of the executive clause in regard to the Jews alone, however, they invested it with a scope greater than it had in the original law. CJ 1:9:18 repeated, without important changes, the prohibition on employment of Jews in government, adding to the specified offices that of ‘pater civitatis’, and the prohibition on construction of new synagogues and proselyting. CJ 1:7:5 reiter­ated the prohibition on proselyting Christians and broadened its scope to include all conversions of Christians to another religion or sect, while CJ 1:5:7 repeated the obligation of Jews and Samari­tans to serve in the curias, broadening its scope, again, so as to apply to all ‘sects’.

Evidence on the application of the clause concerning vindication of new synagogues to the Church was provided in Theophanes’ account of the construction of a new synagogue by the Jews of the Constantinopolitan quarter of Chaicopratea, in collusion with the Prefect of the City, in 442.

Theodosius II, Novella, 3 ( = Breviarium,style='font-weight:normal'> 3), ed. Meyer & Mommsen, pp. 7-11

IMPP. THEOD(OSIUS) ET VALENT(INIANUS) AA. FLORENTIO* P(RAEFECTO) P(RAETORI)O

Inter ceteras sollicitudines, quas amor publicus pervigili cogitatione nobis indixit, praecipuam imperatoriae maiestatis curam esse per- 5 spicimus verae religionis indaginem; cuius si cultum tenere potuerimus, iter prosperitatis humanis aperimus inceptis. Quod usu longae aetatis ex­perti* piae mentis arbitrio ad posteros usque perennitatis iure fundare decrevimus caerimonias sanctitatis. Quis enim tam mente captus, quis tam novae feritatis inmanitate damnatus est, ut, cum videat caelum io divinae artis imperio incredibili celeritate intra sua spatia metas tem­porum terminare, cum siderum motum vitae commoda moderantem, dotatam messibus terram, mare liquidum et inmensi operis vastitatem finibus naturae conclusam, tanti secreti, tantae fabricae non quaerat auctorem?* Quod sensibus excaecatos ludaeos Samaritas paganos et 15 cetera haereticorum genera portentorum audere cognoscimus. Quos si ad sanitatem mentis egregiae lege medica revocare conemur, severitatis culpam ipsi praestabunt, qui durae frontis obstinato piaculo locum veniae non relinquunt. Quam ob rem cum sententia veteri desperatis morbis nulla sit adhibenda curatio,* tandem, ne ferales sectae in vitam, 20 inmemores nostri saeculi, velut indiscreta confusione licentius evagen- tur, hac victura in omne aevum lege sancimus neminem ludaeum, neminem Samaritam neutra lege constantem* ad honores et dignitates accedere, nulli administrationem patere civilis obsequii, nec defensoris fungi saltem officio.* Nefas quippe credimus, ut supernae maiestati et ²⁵ Romanis legibus inimici ultores etiam nostrarum legum subreptivae iurisdictionis habeantur obtentu et adquisitae dignitatis auctoritate muniti adversum Christianos et ipsos plerumque sacrae religionis an-

tistites velut insultantes fidei nostrae indicandi vel pronuntiandi quod velint habeant potestatem: illud etiam pari consideratione rationis 30 arcentes, ne qua synagoga in novam fabricam surgat, fulciendi veteres permissa licentia quae ruinam praesentaneam minitantur.

INTERPRETATIO

Haec lex specialiter iubet, ut nullus ludaeus, nullus Samaritanus ad nul­lum militiae aut administrationis honorem possit accedere neque defen­soris officium nulla ratione suscipere neque carceris esse custodes, ne forsitan sub specie cuiuslibet officii Christianos vel etiam sacerdotes sub quacumque occasione iniuriis audeant fatigare, ne supra scripti qui inimici legis nostrae sunt legibus nostris aliquos aut condemnare aut iudicare praesumant. Nullam denuo audeant construere synagogam. Nam si fecerint, noverint hanc fabricam ecclesiae catholicae profuturam et quinquaginta pondo auri auctores fabricae esse multandos. Sed hoc sibi sciant esse concessum, ut ruinas synagogarum suarum debeant reparare. Hoc etiam specialiter in hac lege conprehensum est, ut nullus

ludaeus servum aut ingenuum Christianum audeat quacumque per­suasione in suam legem transferee. Quod si fecerit, amissis facultatibus 105 capite puniatur. De reliquo vero haec lex damnat sectas, quae nominatim in hac lege continentur insertae.

THE TWO EMPERORS AND AUGUSTI THEODOSIUS AND VALENTINIAN TO FLORENTIUS,² PRAEFECTUS PRAETORIO

Among the other duties which our love of the common weal indi­cates to us in an ever vigilant consideration, we perceive the search for the true religion as the Imperial Majesty’s foremost care. If we could maintain its cult, we shall open the way of prosperity to human endeavor. Experienced by a long life³ and piously resolved, we have decreed, therefore, to establish the ceremonies of holiness to posterity, even unto eternity. Is there a person so arrested in mind, so damned by the monstrosity of the new savagery, as to see the sky determining time-limits within its space in incredible speed under the government of the divine science, the movement of the stars which controls life’s benefits, the earth plentiful with harvests, the watery sea, that vastness of the immense work enclosed within the boundaries of nature, and not search for the author of such a vast mystery, of such a vast fabric?⁴ This, we know, the blindly senseless Jews, Samaritans, pagans, and the other kinds of mon­strous heretics dare to do. If we endeavour to recall them to the sanity of an eminent mind by a healing law, they themselves shall bear the responsibility for its severity, they, who do not leave room for mercy by their obstinate crime of an obdurate front. For this reason, although according to the ancient maxim no cure should be applied to the desperately ill,⁵ nevertheless, lest the abom­inable sects proliferate wantonly in indiscriminate confusion in our lifetime, oblivious of the quality of our times, we decree in this law—that shall stand forever—that no Jew, and no Samaritan, nor any one constant in either of these laws,⁶ should accede to honours and dignities, to none of them shall be opened an administration with public obedience, neither shall he serve as Protector.⁷ For we consider it impious, that the enemies of the Supreme Majesty and of the Roman laws shall be considered as avengers also of our laws by seizing stolen jurisdiction, and armed with the authority of an ill-gotten dignity shall have the power to judge and pronounce sentence against Christians, very often even against priests of the sacred religion, to the insult of our faith. This too we prohibit on a similar consideration, that no synagogue shall be erected in a new building, granting leave to prop up the old ones which threaten immediate ruin. We add to these, that whoever shall transfer a slave or a freeborn, against his will or with a punishment-meriting persuasion, from the cult of the Christian religion to an abomi­nable sect and rite, shall be punished by death and confiscation of property, and he who shall take the office insignia⁸ shall not main­tain the ill-gotten dignities, and he who shall construct a synagogue shall know that he had laboured for the benefit of the Catholic Church. Indeed, he who shall steal into offices of honour shall be considered, as before, of the lowest condition, even though he had obtained an honourary dignity. And he who began building a syna­gogue not in order to repair it, shall be deprived of his work and fined fifty gold pounds. Furthermore, let him who overcame another man’s faith with a perverse doctrine know, that he shall be sentenced to confiscation of his property and to the death penalty. And since it is appropriate that the Imperial Majesty should take care in all things that the public weal shall not be harmed in anything, we order that the curials of all the cities as well as the Cohortalins,⁹ indeed those obligated by property and personal li­turgies to the onerous and diverse duties of the State’s service, shall adhere to their curias, no matter to whatever sect they be­long, lest we be seen to grant the privilege of exemption to men execrable with reprehensible ambition, whom we wish condemned by this constitution’s authority. With the exception, however, that the Apparitors¹⁰ who belong to the above-mentioned sects shall execute judge’s sentences in private cases only, neither shall they be in charge of prison, lest Christians—as frequently happens— suffer double imprisonment¹¹ when they are thrown before hostile gaolers, and sometimes it is even doubtful whether they have been legally incarcerated. Our clemency perceives, therefore, that we must also maintain vigilance against the pagans and the Gentile savagery, who depart from the path of the true religion in their inborn insanity and license and scorn to perform the nefarious rites of sacrifices and the errors of the deadly superstition in a certain manner in deserted places, but wish their crimes to be made known in a sort of declaration to the injury of the Supreme Ma­jesty and the contempt of our times. Those who are not restrained by the myriad terrors in the promulgated laws and by the imposed penalty of banishment, although they are incapable of improve­ment, shall learn at least to avoid the mass of crimes and the sacrifices’ filth. Yet crimes are indeed committed with such an audacity of madness, and our patience is assailed by such ventures of the wicked, that even if it wished to forgive, it could not ignore. Therefore, although the love of religion can never be secure, and though the pagan madness exacts the rigors of all the punishments, we remember nevertheless our innate lenity and decree, in a firm order, that if someone shall be caught sacrificing with polluted and contaminated intentions in any place whatsoever, our wrath shall rise against his property and against his life.¹² It is proper that we offer the better sacrifice and the altar of Christianity kept intact. Shall we bear for long the change of seasons in the wrath of heaven’s harmony, which, exasperated by the pagans’ perfidy, can­not keep nature’s weights? Why did summer hungry for harvest defraud the industrious peasant’s hope for grain? Why did winter’s intemperate ferocity damn earth’s fertility with penetrating cold and sterile injury? Surely nature transgresses the decree of its own law in punishment of impiety. In order that we shall not be forced to bear this longer, it is necessary, as we have said, that the Ven­erable Majesty of the Supreme Deity be propitiated by a peace­making punishment. It remains now that what has been legislated in innumberable constitutions against the Manichaeans eternally odious to God, against the Eunomians instigators of the heretical fatuity, against the Montanists, Frygii, Fotinii,¹³ Priscilianists, Ascodrogi,¹⁴ Hydroparastati,¹⁵ Borborits,¹⁶ and Offits¹⁷ shall be put to swift execution without any idleness, Florentius, dearest and loving father. Your illustrious and magnificent authority, always entirely intent on obeying the divine as well as the Imperial orders shall, therefore, make known to all what we have decreed out of boundless honour for the Catholic religion, in edicts of your Excel­lence officially published, and shall order that the governors of the provinces shall be informed, and that what we have decreed by necessity shall be made clear to all the cities and provinces by their like diligence.

GIVEN ON THE DAY BEFORE THE CALENDS OF FEBRUARY AT CONSTANTI­NOPLE, IN THE CONSULATE OF OUR MASTER THEODOSIUS AUGUSTUS FOR THE SIXTEENTH TIME AND OF HIM WHO SHALL BE ANNOUNCED.¹⁸ COMMENTARY

This law orders in particular that no Jew and no Samaritan shall attain any honour of State government or administration, and that on no account shall they receive the office of Protector, nor be prison guards, lest perchance they dare molest Christians, or even priests, under pretext of any office, and lest the above mentioned, who are enemies of our law, presume to condemn people or judge them under our laws. They shall not dare to construct anew any synagogue. For it they shall do so they shall know that this building shall benefit the Catholic Church and the builders of that building shall be fined fifty in gold weight. But let them know that this is allowed them, that they should repair the ruins of their synagogues. This, however, is particularly comprehended in this law, that no Jew shall dare transfer to his law a Christian, slave or freeborn, by any persuasion whatsoever or be punished by death and loss of property.

Codex Justinianus, 1:9:18, ed. Krüger, p. 62

IDEM AA. FLORENTIO PP.

Hac victura in omne aevum lege sancimus neminem ludaeum,* quibus omnes administrationes et dignitates interdictae sunt, nec defensoris civitatis fungi saltem officio nec patris* honorem adripere concedimus, ⁵ ne adquisiti sibi officii auctoritate muniti adversus Christianos et ipsos plerumque sacrae religionis antistites velut insultantes fidei nostrae iudicandi vel pronuntiandi quamlibet habeant potestatem. Illud etiam pari consideratione rationis arguentes praecipimus, ne qua ludaica synagoga in novam fabricam surgat, fulciendi veteres permissa licentia, io quae ruinam minantur. Quisquis* igitur vel infulas ceperit, quaesitis dignitatibus non potiatur, vel si ad officia vetita subrepserit, his penitus repelletur, vel si synagogam extraxerit, compendio catholicae ecclesiae noverit se laborasse: et qui ad honores et dignitates inrepserit, habeatur, ut antea, condicionis extremae, etsi honorariam illicite promeruerit ¹⁵ dignitatem: et qui synagogae fabricam coeperit non studio reparandi, cum damno auri quinquaginta libraram fraudetur ausibus suis. Cernat praeterea bona sua proscripta, mox poenae sanguinis destinandus, qui fidem alterius expugnavit perversa doctrina.

D. PRID. K. FEBR. CONSTANTINOPOLI THEODOSIO A. XVII ET FESTO

20 CONSS.*

THE SAME TWO AUGUSTI TO FLORENTIUS, PRAEFECTUS PRAETORIO

We decree in this law—that shall stand forever—that no Jew,¹⁹ to which all administration and dignities are prohibited, shall perform even the office of City Protector, nor do we grant that he shall seize the honour of Father,²⁰ lest, armed with the authority of an ill-got­ten office, they shall have the power to judge and pronounce sen­tence against Christians, very often even against priests of the sa­cred religion, to the insult of our faith. This too we order, deducing from a similar consideration, that no Jewish synagogue shall be erected in a new building, while granting leave to prop up the old ones which threaten to fall down. Anyone,²¹ therefore, who shall take the office insignia shall not maintain the seized dignities, or if he shall steal into prohibited offices, he shall be entirely expelled from them, or if he shall construct a synagogue he shall know that he had laboured for the benefit of the Christian Church; and he who shall steal to honours and dignities shall be considered, as before, of the lowest condition, even though he had illegally obtained an hono­rary dignity; and he who shall begin to build a synagogue not in order to repair it shall be deprived of his work and fined fifty gold pounds. Furthermore, let him who overcame another man’s faith with a perverse doctrine know that he shall be sentenced to confis­cation of property and to the death penalty.

GIVEN ON THE DAY BEFORE THE CALENDS OF FEBRUARY AT CONSTANTI­NOPLE, IN THE CONSULATE OF THEODOSIUS AUGUSTUS FOR THE SEVEN­TEENTH TIME AND OF FESTUS.²²

Codex Justinianus, 1:7:5, ed. Krüger, p. 60

IMPP. THEODOSIUS ET VALENTINIANUS AA. FLORENTIO PP.

Eum, quicumque servum seu ingenuum, invitum vel suasione plectenda, ex cultu Christianae religionis in nefandam sectam ritumve traduxerit, cum dispendio fortunarum capite puniendum censemus.

5 D. PRID. K. FEBR. CONSTANTINOPOLI THEODOSIO A. XVI ET FAUSTO CONSS.*

THE TWO EMPERORS AND AUGUSTI THEODOSIUS AND VALENTINIAN TO FLORENTIUS, PRAEFECTUS PRAETORIO

We order that any person, whoever he shall be, that shall transfer a slave or a freeborn, against his will or with a punishment-meriting persuasion, from the cult of the Christian religion to an abominable sect and rite shall be punished by death and confiscation of property. GIVEN ON THE DAY BEFORE THE CALENDS OF FEBRUARY AT CONSTANTI­NOPLE, IN THE CONSULATE OF THEODOSIUS AUGUSTUS FOR THE SIX­TEENTH TIME AND OF FAUSTUS.²³

Codex Justinianus, 1:5:7, ed. Krüger, pp. 51—52

IDEM AA. FLORENTIO PP.

Curiales omnium civitatum, onerosis quin etiam militiae seu diversis officiis facultatum et personalium munerum obligatos suis ordinibus, cuiuscumque sectae sint, inhaerere censemus, ne videamur hominibus 5 exsecrandis contumelioso ambitu immunitatis beneficium praestitisse, quos volumus huius constitutionis auctoritate damnari.

D. PRID. K. FEBR. CONSTANTINOPOLI THEODOSIO A. XVI ET FAUSTO CONSS.

THE SAME TWO AUGUSTI TO FLORENTIUS, PRAEFECTUS PRAETORIO

We order that the curials of all the cities, indeed those obligated by property and personal liturgies to the onerous and diverse duties of the State’s service shall adhere to their curias no matter to whatever sect they belong, lest we be seen to grant the privilege of exemption to men execrable with reprehensible ambition, whom we wish con­demned by this constitution’s authority.

GIVEN ON THE DAY BEFORE THE CALENDS OF FEBRUARY AT CONSTANTI­NOPLE, IN THE CONSULATE OF THEODOSIUS AUGUSTUS FOR THE SIX­TEENTH TIME AND OF FAUSTUS.

NOTES

1.        Χρονογραφία, ed. C. de Boor, I, Leipzig 1883, pp. 102, 248.

2.        Florentius was an orthodox Christian who served as Prefect of the City of Constantinople in 422, Praefectus Praetorio of the East in the years 428-429, and consul in 429. He was nominated again as praefectus praetorio for a second tenure of office, and is documented in this capacity between 31 January 438 and 26 November 439. He obtained the title of Patricius between 444 and 448. See Haehl- ing, pp. 84-85; PLRE, II, s.v.; O. Seeck, PW, 1:12, 1909, s.v., Cols. 2758-2759.

3.        Life: Theodosius II was bom in 10 April 401. He was therefore 37 years old when this law was promulgated.

4.        Fabric: The first part of this paragraph paraphrases a passage in Cicero’s De Natura Deorum:style='font-size:8.5pt;font-style:normal'> ’Quis enim hunc hominem dixerit, qui, cum tam certos caeli motus tam ratos astrorum ordines tamquam inter se omnia conexa et apta viderit, neget in his ullam esse rationem... an... cum autem impetum caeli cum admi­rabili celeritate moveri vertique videamus constantissime conficientem vicissitudines anniversarias cum summa salute et conservatione rerum omnium, dubitamus quin ea non solum ratione fiant sed etiam excellenti divinaque ratione?’ (2:38, ed. O. Plasberg & W. Ax, Leipzig 1933, p. 88). “Who would not deny the name of human being to a man who, on seeing the regular motions of the heaven and the fixed order of the stars and the accurate interconnexion and interrelation of all things, can deny that these things possess any rational design... when therefore we behold the whole compass of the heaven moving with revolutions of marvellous velocity and executing with perfect regularity the annual changes of the seasons with absolute safety and security for all things, how can we doubt that all this is effected not merely by reason, but by a reason that is transcendent and divine?” (Trans. H. Rockham, London 1933, pp. 217-219).

5.        Desperately ill is a reference to a maxim attributed to Hippocrates. See Περί τέχνης, ed. Μ. P. E. Littré, VI, Paris 1849, pp. 4-6, 26.

6.        Laws: this passage is not entirely clear. It was omitted, probably for that reason, from the text received by Justinian’s editors in CJ 1:9:18. Some historians interpreted it as a revocation of those laws in force in both parts of the Empire which allowed Jews and Samaritans to take office in the State and the municipal administration. Others interpreted correctly the term ‘lex’ as synonymous to ‘reli­gio’, and believed that this passage concerned Samaritans, who rejected both Chris­tianity and Judaism. See Juster, II, p. 245.

7.         The office of ‘defensor civitatis’, “City Protector,” was originally created

in order to protect the lower strata of the urban population against oppression by the Imperial and the municipal administration. The authority of the ‘defensor’ expanded gradually, particularly in the late fourth century and in the early fifth century. He was assigned powers and duties in civil and criminal jurisdiction, police activities, control of the administration, and in the fight against heresies and pagan­ism. After 409 only Orthodox Christians were eligible to this office. The election was entrusted to a body comprised of clergymen, former magistrates, and men of property. The status of the ‘defensor’ was further strengthened by Justinian’s Novel No. 15 from 535; his term of office was fixed for a duration of two years, and he could not be dismissed by the governors of the province. He was held responsible, in the absence of the governor, for the provincial adminstrative personnel stationed in his city. See H. Leclercq, DACL, IV: 1, 1920, s.v. Defensor Civitatis, pp. 406­427; W. Liebeschuetz, “The Origins of the Pagarch,” BZ, LXVI (1973), pp. 40, 43. This office is mentioned in Gen. R. in the Greek term έκδικος transmitted in Hebrew transliteration DIpHAK: “R. Yudan the Patriarch asked R. Shemuel b. R. Nahman, namely:... what is the meaning of ‘Extol Him that rideth upon the skies, be-Yah is his name’ (Ps. LXVIII, 5)? He told him there is not a single place which has not someone in charge of its ‘bia’, thus the ‘Egdicos’ is in charge of the ‘bia’ in a city” (12:10, Theodor-Albeck ed., p. 108). ‘Bia’ is the Greek term βία, meaning “violence, oppression.” See I. Wartski, “The Usage of the Greek Words βια—βιος in Midrashic Literature,” Tarbiz, XXXVI (1967), pp. 239-240 (in Heb­rew); S. Lieberman, “The Words       ,ΟϋΟΠΠΛΧ ,ΟϋΟΠ ΠΠΙΚ,” ibid., p. 401

(in Hebrew); Sperber, pp. 31-32, 68-69, 209-210.

8.        Insignia: the ‘infulae’ were woolen bands, white or purple, worn by Emperors and magistrates upon the forehead, as a symbol of their office. Compare the following passage in Theodosius H’s law from 425: ‘Nemo sibi praesumat mod­eratorum provinciarumque rectorum sub quibuscumque infulis potestatis quem­quam patrimonii universis privare subsidiis’. “None of the Moderators or the Province­Governors shall dare deprive a man of all the help of his property under the pretext of any office whatsoever” (CTh 9:41:1).

9.        Cohortalins were public administrative functionaries of the lower rank, of a very low status, and subject to various disabilities. Serving usually under the authority of the provincial governors, they were bound to their office by their person as well as by their property. See Premerstein, PW, 1:7, 1900, s.v. Cohor­tales, Cols. 357-359.

10.      The term of Apparitors was largely identical to that of Cohortalins, though Apparitors usually served magistrates of a higher rank than that of provin­cial governors. See Premerstein, ibid.

11.      Double imprisonment: this passage is not entirely clear, probably be­cause of an omission or corruption of several words. It seems to signify “a harsher imprisonment,” suffered by the Christian prisoner at the hands of Jewish prison­guards. This prohibition conformed to the general policy of keeping Jews out of offices with power and capability to put pressure on Christians. Imprisonment was not recognized in Roman criminal law as a penalty but as means of enforcing the authority of the magistrate in the framework of carrying out his powers of ‘coer­citio’. It was usually employed by the authorities to maintain law and order or to assure the immediate availability of persons charged with criminal offences.

12.      Life: this clause stands in clear contrast to the preceding sentences, which seem to introduce some measure of clemency. It is possible that the legislator distinguished, originally, between life and property penalties, abolishing the former and maintaining the latter, and that the word ‘non’, employed in connection with the harsher penalty, was later omitted, either intentionally or accidentally.

13.      Fotinii belonged to a heretical sect, founded by Fotinus, bishop of Sir­mium, between 346 and 351. Though never a popular heresy, it was still in exist­ence in the fifth century. See G. Bardy, DTC, XII, 1935, s.v. Photin de Sirmium, pp. 1532-1536.

14.      Ascodrogi: A heresy known by various pejorative names, it is positively documented only in Galatia during the second half of the fourth century. It was usually associated with the Montanists, either because of the geographical proxim­ity or because of the close similarity between the ecstatic rituals of these two sects. See H. C. Puech, Reallexikon, I, 1950, s.v. Ascodrutae, Cols. 731-735.

15.      Hydroparastati: A heresy which rejected the use of wine in the Eucha­rist, replacing it with water. Its rejection of wine, considered as a diabolical and corrupting element, derived from a particularly rigorist attitude to matter, which was shared by other sects as well and is documented even among the Orthodox. It was usually associated with the name of Tatian. See G. Gentz, Reallexikon, 1,1950, s.v. Aquarii, Cols. 574-575.

16.      Borborits: A gnostic sect, whose opponents described it as characterized by immorality and vice. It was still in existence in the fourth and the fifth centuries. See L. Fendt, Reallexikon, II, 1954, s.v. Borborianer, Cols. 510-513.

17.      Ofits: A gnostic sect, whose ritual and myth accorded a central role to the snake. See E. Amann, DTC, XI, 1932, s.v. Ophites, pp. 1063-1075.

18.      Given... announced: 31 January 438.

19.    Jew: this passage is certainly corrupt, for it opened in singular (neminem ludaeum) and terminated in plural (quibus). This corruption resulted from the omis­sion of the two words ‘neminem Samaritam’, which appeared in the original text of Theodosius H’s Novel (see above). It seems that the corruption originated subse­quently to Justinian’s codification, for the translators of the Basilica still used the correct version, though they too employed the plural number: πάσιν Ίουδαίοις και πασι Σαμαρείταις (Bas. 1:1:47). It probably emerged in the manuscript-transmission of Codex Justinianus.

20.      “Father” was a municipal office known after the middle of the fifth century. The city’s Father was probably in charge of the city’s independent reve­nues. Sometimes this office was held simultaneously by several persons. On the creation of this office and its nature consult C. Rouech6, “A New Inscription from Aphrodisias and the title πατήρ τής πόλεως,” Greek, Roman and Byzantine Studies, XX (1979), pp. 173-185.

21.      Anyone: Justinian’s editors replaced here the original ‘quisque’ by ‘quis­quis’, although ‘quisque’ conformed to the current usage of employing this word in the meaning of ‘quilibet’ or ‘quicumque’. See Grupe, XV, p. 336.

22.      Given... Festus: 31 January 439.

23.      Given... Faustus: 31 January 438. The subscription given in Halo- ander’s edition, however, dates this law to 435. See Kriiger’s apparatus there.

BIBLIOGRAPHY

Godefroy, VI:2, pp. 9-15; Juster, I, 470-472; II, pp. 245 n. 2, 261-262; Seeck, Regesten, p. 367; F. Nau, “Deux episodes de 1’histoire juive sous Theodose II (423 et 438) d’aprös la Vie de Barsauma le Syrien,” REJ, LXXXIII (1927), pp. 205­206; Browe, pp. 117-118, 124-125; Seaver, pp. 78-81; Demougeot, “Th6odose II,” pp. 97-100; Avi-Yonah, p. 215; Rabello, “Tribute,” p. 260 n. 5; Langenfeld, pp. 102-104; Η. H. Anton, “Kaiserliches Selbstverständnis in der Religionsgesetzge­bung der Spätantike und päpstliche Herrschaftsinterpretation im 5. Jahrhundert,” Zeitschrift für Kirchengeschichte, LXXXVIII (1977), pp. 63-66; Reichardt, pp. 37­38.