48 Policy towards Jews, Pagans, and Heretics (Honorius with) Theodosius II 9 April 423
This law, given by Theodosius II in his name and in that of Honorius on 9 April 423 at Constantinople, was addressed to Asclepiodotus, Praefectus Praetorio of the East.
Its text has been preserved in four fragments, all of them in Codex Theodosianus. Their order in the original law can be reconstructed, on the basis of the Theodosian formulae “and other matters” and “after other matters,” as well as on grounds of their subject matter, as follows:(A) CTh 16:8:26. This fragment ended with “and other matters.” It contained the preamble and the first part of the legislation concerning the Jews.
(B) CTh 16:9:5. This fragment opened with “after other matters” and terminated with “and other matters.” It dealt with the Jews.
(C) CTh 16:10:22. It opened with “after other matters” and terminated with “and other matters.” It concerned the pagans.
(D) CTh 16:5:59. This fragment opened with “after other matters.” It dealt with heretics.
Only the last sentence of CTh 16:5:59 was received into Codex Justinianus (CJ 1:9:16). The legislator reaffirmed the law of 15 February (see above, No. 47), and prohibited attacks against Jews as well as occupation and putting synagogues on fire. He also renewed the prohibition on the circumcision of Christians and on the purchase of Christian slaves by Jews. The clauses that referred to pagans and heretics reaffirmed the exisiting interdictions in their regard.
Our law, together with the Syrian version of the biography of Symeon Sty lites, throws some light on the struggle that preceded the publication of this law.
Militant Christians reacted sharply to the law of 15 February, and tried to obtain its repeal, but were outmaneuvered by the Jews, who were able to exert influence in the court through bribery and the help of Asclepiodotus, and finally obtained the confirmation of that law. The legislator affirmed, in effect, that he confirmed it in response to the “supplications” of the Jews. The insulting language adopted in their regard, like the reference to the interdictions obligatory on the Jews, the pagans, and the heretics should be seen, probably, as a diversory measure, intended to soften the expected negative reaction of the militant Christians to this law, which was, in essence, favourable to the Jews.Justinian’s editors selected only the prohibition on circumcision of Christians from this law.
Codex Theodosianus, 16:8:26, ed. Mommsen, p. 894
IDEM AA.· ASCLEPIODOTO P(RAEFECTO) P(RAETORI)O
Nota sunt adque omnibus divulgata nostra maiorumque decreta,* quibus abominandorum paganorum, ludaeorum etiam adque haereticorum spiritum audaciamque conpressimus. Libenter tamen repetendae s legis occasionem* amplexi ludaeos scire volumus, quod ad eorum miserabiles preces nihil aliud sanximus, quam ut hi, qui pleraque inconsulte sub praetextu venerandae Christianitatis admittunt, ab eorum laesione persecutioneque temperent utque nunc ac deinceps synagogas eorum nullus occupet, nullus incendat Tamen ipsi ludaei et bonorum io proscribtione et perpetuo exilio damnabuntur, si nostrae fidei hominem circumcidisse eos vel circumcidendum mandasse constiterit. Et cetera. DAT. V ID. APRIL. CONSTANTINOP(OLI) ASCLEPIODOTO ET MARINIANO CONSS.·
THE SAME TWO AUGUSTI1 TO ASCLEPIODOTUS, PRAEFECTUS PRAETORIO Known and divulged to all are our decrees2 and those of our ancestors, in which we suppressed the arrogance and the audacity of the abominable pagans, as well as of the Jews and the heretics.
We want the Jews to know, however, that we take with pleasure the occasion3 of the repetition of the law, and in answer to their pitiful supplications we have but legislated that those who usually commit wrong unadvisedly under cover of the venerable Christianity, shall abstain from injuring and persecuting them, and that from now on no one shall occupy their synagogues, and no one shall set them on fire. However, these Jews shall be condemned to confiscation of property as well as to perpetual exile, if it shall be established that they have circumcised a man of our Faith or ordered him to be circumcised. And other matters.GIVEN ON THE FIFTH DAY BEFORE THE IDES OF APRIL AT CONSTANTINOPLE, IN THE CONSULATE OF ASCLEPIODOTUS AND MARINI ANUS.4
Codex Theodosianus, 16:9:5, ed. Mommsen, p. 897
IDEM AA. ASCLEPIODOTO P(RAEFECTO) P(RAETORI)O
Post alia: Christiana mancipia ludaeorum nemo audeat comparare. Nefas enim aestimamus religiosissimos famulos impiissimorum emptorum inquinari dominio. Quod si quis hoc fecerit, statutae poenae abs- 5 que omni erit dilatione obnoxius. Et cetera.
DAT. V ID. APRIL. CONSTANT(INO)P(OLI) ASCLEPIODOTO ET MARINIANO CONSS.
THE SAME TWO AUGUSTI TO ASCLEPIODOTUS, PRAEFECTUS PRAETORIO
After other matters: None of the Jews shall dare to buy Christian slaves. For we consider execrable that the most religious slaves be defiled by the mastery of the most impious buyers. If someone shall do it, he shall be subjected to the statutory punishment without any delay.
And other matters.GIVEN ON THE FIFTH DAY BEFORE THE IDES OF APRIL AT CONSTANTINOPLE, IN THE CONSULATE OF ASCLEPIODOTUS AND MARINI ANUS.
Codex Theodosianus, 16:10:22, ed. Mommsen, p. 904
IDEM AA. ASCLEPIODOTO P(RAEFECTO) P(RAETORI)O
Post alia: Paganos qui supersunt, quamquam iam nullos esse credamus, promulgatarum... iam dudum praescripta conpescant. Et cetera.
DAT. V ID. APRIL. CONST(ANTINO)P(O)L(I) ASCLEPIODOTO ET
5 MARINIANO CONSS.
THE SAME TWO AUGUSTI TO ASCLEPIODOTUS, PRAEFECTUS PRAETORIO
After other matters: The remaining pagans, although we would like to believe that there are none, shall be restrained by the regulations ... promulgated a long time ago. And other matters.
GIVEN ON THE FIFTH DAY BEFORE THE IDES OF APRIL AT CONSTANTINOPLE, IN THE CONSULATE OF ASCLEPIODOTUS AND MARINIANUS.
Codex Theodosianus, 16:5:59, ed. Mommsen, p. 876
IDEM AA. ASCLEPIODOTO P(RAEFECTO) P(RAETORI)O
Post alia: Manichaei* et Fryges, quos Pepyzitas sive Priscillianistas vel alio latentiore vocabulo appellant,* Arriani* itidem Macedonianique* et Eunomiani,* Novatiani* ac Sabbatiani* ceterique haeretici sciant 5 universa sibi hac quoque constitutione denegari, quae illis generalium sanctionum interdixit auctoritas, puniendis, qui contra generalium constitutionum interdicta venire temptaverint.
DAT. V ID. APRIL. CONSTANT(INO)P(OLI) ASCLEPIODOTO ET MARINIANO CONSS.
THE SAME TWO AUGUSTI TO ASCLEPIODOTUS, PRAEFECTUS PRAETORIO After other matters: Let the Manichaeans,5 the Frygians which are called Pepyzitae or Priscillianists or by another, more secret name,6 the Arians,7 also the Macedonians8 and the Eunomians,9 the Novatians,10 the Sabbatians,11 and the other heretics know, that all that was forbbiden them by the authority of the general laws is denied them by this law too, and that those that shall dare to go against what was prohibited by the the general laws should be punished.
GIVEN ON THE FIFTH DAY BEFORE THE IDES OF APRIL AT CONSTANTINOPLE, IN THE CONSULATE OF ASCLEPIODOTUS AND MARINI ANUS.
Codex Justinianus, 1:9:16, ed. Krüger, p. 62
IDEM AA. ASCLEPIODOTO PP.
ludaei et bonorum proscriptione et perpetuo exilio damnabuntur, si nostrae fidei hominem circumcidisse eos vel circumcidendum mandasse constiterit.
5 D. V ID. APRIL. CONSTANTINOPOLI ASCLEPIODOTO ET MARINIANO CONSS.
THE SAME TWO AUGUSTI TO ASCLEPIODOTUS, PRAEFECTUS PRAETORIO The Jews shall be condemned to confiscation of property as well as to perpetual exile, if it shall be established that they have circumcised a man of our faith or ordered him to be circumcised.
GIVEN ON THE FIFTH DAY BEFORE THE IDES OF APRIL AT CONSTANTINOPLE, IN THE CONSULATE OF ASCLEPIODOTUS AND MARINIANUS.
NOTES
1. Augusti: Honorius and Theodosius II.
2. The decrees, judgments given by the emperor in his judicial capacity, were included among his ‘constitutiones’ and had a certain authority as precedents.
They were not considered, however, as legally binding on judges in other cases. They acquired, nevertheless, a binding power similar to that of the ‘edicta imperatorum’ if published by the emperor; they became, in this way, formal statements of general legal norms based on the emperor’s ‘ius dicendi’. Our law emphasized the binding power of the ‘decreta’ by insisting on the promulgation element (divulgata), thus assimilating them to ‘edicta’. Compare, in this context, the famous definition: ‘Sed et quod principi placuit, legis habet vigorem... quodcumque igitur imperator per epistulam constituit vel cognoscens decrevit vel edicto praecepit legem esse constat; haec sunt, quae constitutiones appellantur’. “But what seems right to the Princeps has the power of law... therefore anything the Emperor established in an epistle, or decreed in judgment, or ordered in an edict, is certainly law; these are what are called ‘constitutiones’.” See Institutiones, 1:2:3:6.3. Occasion is the common meaning of ‘occasio’, and it fits well with the use here of the verb ‘amplecti’. It is worth noticing, however, that Honorius employed ‘occasio’ in a law issued in 426 in the more limited sense of passing a law: ‘sive precatio, vel relatio vel lis mota legis occasionem postulaverit’, “Or if a petition, report or controversy shall necessitate the passing of a law.” See CJ 1:14:3. For other meanings of the term ‘occasio’ in the legal sources consult H. Krüger, “Bemerkungen über den Sprachgebrauch der Kaiserkonstitutionen im Codex Justi- nianus,” ALL, XI (1900), pp. 463-467.
4. Given... Marinianus: 9 April 423.
5. Manichaeans: on the remarkable diffusion of the Manichaeans throughout the East, in Mesopotamia, Syria, Palestine, Egypt, Asia Minor, and Constantinople, see G. Bardy, DTC, IX, 1926, s.v. Manicheisme, pp. 1864-1867; J. Jarry, “Le manicheisme en Egypte Byzantine,” Bulletin de I’institut frangais d’archeologie de Caire, LXVI (1968), pp. 121-137. For the restrictions on their diffusion in the West consult P. Brown, “The Diffusion of Manichaeans in the Roman Empire,” JRS, LIX (1969), pp. 92-103.
6. Frygians... name: the legislator referred to the Montanists, known also as Phrygians, or Cataphrygians, after the name of that region in Asia Minor in which this sect originated. The name Pepyzitae derived from Pepuza, a small Phrygian town which became their center in the beginning of the fifth century. The reading “Priscillianists” is probably erroneous, caused by copyists’ inadvertence, for the Priscillianist sect, called after Priscillian, had no connection at all with the Montanist heresy. The original reading was probably “Priscillanists” (Priscillanis- tas), after the “prophetess” Priscilla, who enjoyed among the Montanists a position second only to Montanus himself. See Philastrius Brixiensis, Diversarum Hereseon Liber, XXI(XLIX), ed. F. Marx, CSEL, XXXVIII, 1898, p. 26.
7. The Arian heresy was by that time in evident decline in both parts of the Empire, in the East as well as in the West. It was still entrenched among the Gothic soldiers, who enjoyed the right to maintain their religious practices and beliefs, and who managed occasionally to assist their persecuted co-religionaires. See X. Le Bachelet, DTC, I, 1909, s.v. lang=EN-US style='font-size:8.5pt'>Arrianisme, pp. 1847-1849.
8. The Macedonians were a splinter heresy that seceded from the Arians in the ninth decade of the fourth century. It was called after Macedonius, bishop of Constantinople in the years 342-359. Its decline commenced before the end of the century. Nestorius closed their last churches in Constantinople and in Cyzicus in 428, five years after the promulgation of our law, and the last Macedonians rejoined the Orthodox Church. See G. Bardy, DTC, IX, 1926, s.v. Macedonius, pp. 1464-1478.
9. Eunomians were an extremist splinter group of the Arians, called after Eunomius, bishop of Cyzicus in 360. After 420 it underwent a series of secessions which weakened it considerably, and under government persecution it all but disappeared towards the middle of the fifth century. See L. Abramowski, Reallexikon, VI, 1966, s.v. Eunomius, Cols. 936-947; X. Le Bachelet, DTC, I, 1909, s.v. Anomeens, pp. 1322-1326.
10. Novatians: a contested election to the Roman See in 251 resulted in the double election of Cornelius and Novatian, and in the appearance of the Novatian heresy. The Novatians adopted a rigorist position in regard to the problem of sin and to the possibility of repentance. This sect spread throughout the Empire, enjoying—till the early fifth century—the tolerant attitude of the authorities. Innocent I (401-417) initiated their persecution in Rome, after 412 they were persecuted by Cyril in Alexandria, and Nestorius started persecuting them in Constantinople in 428. See F. Amman, DTC, XI, 1932, s.v. Novatien, pp. 816-849.
11. The Sabbatian sect, led by the converted Jew Sabbatius, seceded from the Novatian heresy towards the end of the fourth century. Sabbatius introduced several Jewish usages into its customs, such as the celebration of Easter on the date of Passover, the fourteenth of Nissan. The Sabbatians were persecuted in Constantinople after the early fifth century by both the civil and the ecclesiastical authorities. See F. Amman, DTC, XIV, 1939, s.v. Sabbatiens, pp. 430-431.
BIBLIOGRAPHY
Godefroy, VI: 1, pp. 202, 266, 273-274, 328; C. C. Torey, “The Letters of Simeon the Stylite,” Journal of the American Oriental Society, XX (1899), pp. 253257; H. Lietzmann & H. Hilgenfeld, “Das Leben des heiligen Symeon Stylites,” TUGAL, XXXII, 1908, pp. 175, 246-248; Juster, I, pp. 266 n. 5, 465 n. 2; II, pp. 74-75; Seeck, Regesten, p. 349; F. Nau, “Deux episodes de 1’histoire juive sous Thdodose II (423 et 438) d’aprds la Vie de Barsauma le Syrien,” REJ, LXXXIII (1927), pp. 186-193; Browe, pp. 118, 121; Seaver, pp. 73-74; Demougeot, “Thdodose II,” pp. 95-96; Langenfeld, pp. 97-100; Reichardt, p. 37.
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