11 Prohibition on Buying and Proselyting Non-Jewish Slaves

Constantine II

13 August 339

This law, given by Constantine II on 13 August 339, was addressed to Evagrius.

The identification of the legislator of CTh 16:8:6 with Constan­tine II is equally certain. Manuscripts EYDO preserved the name “Constantine.” Manuscripts VOYD date it to 13 August 339, YD by the consulate of Constantius for the second time and of Con­stans, VO by the second consulate of Constantius alone. MS E repeats here the corrupt reading of MS V in CTh 16:9:2, “in the consulate of Constantinople Augustus.” CTh 16:8:6 was given, consequently, by Constantine II, probably on 13 August 339.

There is a certain measure of irregularity in Constantine II ad­dressing a law to Evagrius, Praefectus Praetorio of Italy, and hence a magistrate of Constans, the younger son of Constantine the Great, but this irregularity is more apparent than real, for it accords well with Constantine H’s claim to exercise protection and superiority over Constans. This position of ascendancy was proba­bly recognized in the Viminiacum conference of 337, when the three brothers, Constantine II, Constantius, and Constans divided the Empire among themselves. It recognized Constantine H’s right to legislate for the population under Constans’ rule,¹ and we have enough evidence to show that Constantine II acted indeed on this right. CTh 12:1:27, for example, which was given by Constantine II in Trier on 8 January 339 and addressed to Celsinus, Proconsul of Africa, dealt with matters concerning Carthage and Africa, which lay nominally outside Constantine H’s immediate jurisdic­tion.² Our law should be classified with those laws which Constan­tine II enacted for Constans’ subjects. Its promulgation, however, coincided with the outbreak of hostility between the two brothers, which reached its paroxysm in the winter of 339/340 and culmi­nated in the killing of Constantine II in the beginning of 340.

Constans started to legislate independently of Constantine II as early as the beginning of 339. It is highly improbable, therefore, that our law was ever implemented by Constans’ administration.

Justinian’s editors received the text of CTh 16:9:2 into CJ 1:10:1, combined the sentences dealing with the various types of slaves into one sentence, added passages taken from CTh 16:9:1 (from 335) and from CTh 16:9:4 (from 417), prefixing the inscrip­tion of CTh 16:9:2 and thus ascribing CJ 1:10:1 to Constantine.³ They received the subscription of CTh 16:9:2 as well, with its date of 13 August 339.

This difficulty caused Godefroy to emend the version transmitted by CTh 16:9:2, and to replace “Constantine” with “Constantius.” Mommsen and Browe adopted this emendation, although it was not only unnecessary, it also raised two new difficulties. It cast doubt on the identification of “Evagrius,” the law’s addressee, with Evagrius the Praefectus Praetorio, for, unlike Constantine II, Constantius had no right to address laws to officials subject to Constans. One would have to assume, in this case, that the addressee is another Evagrius, unknown from other sources, or that the law was not addressed to a praefectus praetorio (for the addressee’s title is not specified in the inscriptions of both texts in the Codex Theodosia­nus), and that it was Evagrius the ex-praefectus praetorio who re­ceived this law while serving in another capacity.⁴ Another difficulty concerns the date on which the law was issued. Constantius could not have been present at Constantinople on 13 August 339, for our evidence proves that in the summer of 339 he remained in Mesopo­tamia, occupied by the war with the Persians, and that he returned directly to Antioch in the winter of that year. His presence in Con­stantinople at that time is unattested by any source.

Seeck attributed this law to Constans, and combined it with CTh 16:8:1 (see above, No.

Theodosius II probably cited this law in a law from 20 October 415 (see below, No. 41).

In this law the legislator prohibited Jews from buying and cir­cumcising non-Jewish slaves, making a clear distinction between Christians and those that belong to “other sects and nations.” He repeated, in effect, the legal principle established for the last time in 335 (see above, No. 10), which prohibited the conversion of slaves to Judaism, but, unlike Constantine the Great, he did not grant freedom explicitly to the circumcised slaves, and the text as presented in the Codex is not sufficiently clear to enable us to determine whether such slaves were to be claimed by the Treasury, or to be left in a liberty resulting from the annulment of their masters’ possession of them.

Codex Theodosianus, 16:9:2, ed. Mommsen, p. 896

IMP. CONSTANTI US* A. AD EV AGRIUM

Si aliquis ludaeorum mancipium sectae alterius seu nationis* crediderit conparandum, mancipium fisco protinus vindicetur: si vero emptum cir­cumciderit, non solum mancipii damno multetur, verum etiam capitali 5 sententia puniatur. Quod si venerandae fidei conscia mancipia ludaeus mercari non dubitet, omnia, quae aput eum repperiuntur, protinus auferantur nec interponatur quicquam morae, quin eorum hominum qui Christiani sunt possessione* careat.

DAT. ID. AUG. CONSTANTIO A. II ET CONSTANTE A. CONSS.

EMPEROR CONSTANTINE⁵ AUGUSTUS TO EVAGRIUS

If someone of the Jews shall believe that he should buy a slave of another sect or nation,⁶ the slave shall be immediately vindicated to the fisc; but if he shall circumcise the purchased slave, not only shall he suffer the loss of the slave, but he shall be punished, indeed, by capital punishment. But if a Jew shall not hesitate to purchase slaves who are associates in the venerable faith, all those found with him shall be immediately taken away, and he shall be deprived, in no time at all, of the possession⁷ of those men who are Christians. And other matters.

GIVEN ON THE IDES OF AUGUST IN THE CONSULATE OF CONSTANTIUS AUGUSTUS FOR THE SECOND TIME AND OF CONSTANS AUGUSTUS.

Codex Theodosianus, 16:8:6. ed. Mommsen, p. 888

IMP. CONSTANTIUS A. AD EVAGRIUM

Post alia: Quod ad mulieres pertinet, quas ludaei in turpitudinis suae duxere consortium* in gynaeceo* nostro ante versatas, placet easdem restitui gynaeceo idque in reliquum observari, ne Christianas mulieres suis iungant flagitiis vel, si hoc fecerint, capitali periculo subiugentur. DAT. ID. AUG. CONSTANTIO A. II CONS.

EMPEROR CONSTANTINE AUGUSTUS TO EVAGRIUS

After other matters: in regard to women formerly occupied in our weaving-establishment,⁸ whom the Jews led to their fellowship in turpitude,⁹ it is resolved that they shall be restored to the weaving­establishment, and it shall be observed, in the future, that they do not join Christian women to their deeds of disgrace, or, if they shall do so, they shall be subjected to capital punishment.

GIVEN ON THE IDES OF AUGUST IN THE CONSULATE OF CONSTANTIUS AUGUSTUS FOR THE SECOND TIME.

Codex Justinianus, 1:10:1, ed.

IMP. CONSTANTIUS A. AD EVAGRIUM

ludaeus servum Christianum nec comparare debebit nec largitatis vel alio quocumque titulo* consequatur.* Quod si aliquis ludaeorum man­cipium vel Christianum habuerit vel sectae alterius seu nationis crediderit ex quacumque causa possidendum et id circumciderit, non solum mancipii damno multetur, verum etiam capitali sententia puniatur, ipso* servo pro praemio libertate donando.

D. ID. AUG. CONSTANTINOPOLI CONSTANTIO II ET CONSTANTE CONSS.

EMPEROR CONSTANTIUS AUGUSTUS TO EVAGRIUS

A Jew should not purchase a Christian slave, neither shall he acquire¹⁰ him through gift or any other title.¹¹ But if someone of the Jews shall have a Christian slave, or if he shall believe that a slave of another sect or nation should be possessed for any reason whatso­ever and he shall circumcise him, not only shall he suffer the loss of the slave, but he shall be punished, indeed, by capital punishment, while that same¹² slave shall be given liberty in recompense.

GIVEN ON THE IDES OF AUGUST AT CONSTANTINOPLE IN THE CONSULATE OF CONSTANTIUS FOR THE SECOND TIME AND OF CONSTANS.

NOTES

1.      T. D. Barnes, “Imperial Chronology, a.d. 337-350,” Phoenix, XXXIV (1980), p. 160; O. Seeck, “Zu den Festmünzen Constantins und seiner Familie,” Zeitschrift für Numismatik, XXI (1898), pp. 48-52; idem, Geschichte des Unter­gangs der antiken Welt, IV, Berlin 1911, pp. 40-45.

2.      Both the legislator’s identity and the date are unquestionable in this case. Even the original salutation-formula has been preserved in the text: ‘Have Celsine Karissime Nobis,’ “Hail, our dearest Celsinus.” See also Haehling, pp. 369-416.

3.      His name is transmitted in full by manuscripts SRM, abbreviated by manuscripts PL (Const.) and C (Constant.).

4.      As a law of Constantius it should have been addressed to the Praefectus Praetorio of the East, yet Evagrius left this office in 338, perhaps even earlier, and it was held by Leontius between 18 October 338 and 6 July 344. See J. R. Pal- anque, “Les pröfets du prötoire sous les fils de Constantin,” Historia, IV (1955), pp. 258-259, 262-263. This is, in substance, Ensslin’s opinion as well, although his reconstruction of Evagrius’ career differs, in some details, from that of Palanque. See W. Ensslin, PW, 1:44, 1954, s.v. Praefectus-Praetorio, Cols. 2498, 2500. The PLRE editors maintain, on the other hand, that Evagrius did not hold any office after 336/337. They date our law to 329, when he served as Praefectus Praetorio of the East (PLRE, I, s.v. Evagrius). See also Haehling, pp. 55-57.

5.      Constantine: emendation of the reading suggested by Mommsen (‘Con­stantius’) to ‘Constantinus’. See above, the introduction to this law.

6.      Of another sect or nation: according to Solazzi’s Register this clause is an interpolation inserted prior to Theodosius Il’s codification.

7.      Unlike ‘dominium’, ‘possessio’ does not signify a complete ownership. The original text probably included specific instructions on the fate of those slaves, whether a vindication of ownership by the treasury or manumission in some sort of legal action.

8.      The ‘gynaeceum’ constituted one element in a system of State weaving­establishments which supplied their produce to the court and the army. Its working force, women as well as men, were considered to be slaves, and they lived and worked under supervision in State establishments. Our law obviously dealt with proselyting of women-slaves, in analogy to the preceding paragraph, which dealt with the proselyting of male-slaves. Browe, on the other hand, believes that this law dealt with intermarriage between Jews and non-Jewish women. For the ‘gyna- caeum’ consult H. Leclercq, DACL, VI:2, 1925, s.v. Gynecee, Cols. 1923-1927; J. P. Wild, “The Gynaeceum at Venta and its Context,” Latomus, XXVI (1967), pp. 648-676.

9.       Fellowship in turpitude: the term ‘consortium’ has the sense of “marriage” in rhetorical and legal contexts, e.g., in the following laws: CTh 3:1:3 from 362; CTh 10:20:10 from 379; CTh 12:1:124 from 392; CTh 4:12:7 from 398. Yet marriage was not its sole meaning in the legal texts. It also designated social, economic, and administrative corporations, such as the corporations of the Executive-Agents (CTh 1:9:1 from 359); armourers (CTh 10:22:6 from 412); the Imperial life-guards (CTh 12:1:38 from 346); lawyers (CTh 12:1:46 from 358); millers (CTh 13:5:2 from 315 and CTh 14:3:11 from 365); the senate (CTh 12:1:49 from 361, CTh 12:1:73 from 373, and CTh 12:1:74 from 371); and the curias (CTh 12:1:19 from 331, CTh 12:1:41 from 353, CTh 12:1:123 from 391, CTh 12:1:175 from 412, and CTh 12:1:177 from 413). It was also employed in religious contexts, to designate organizations of Christian clerics (CTh 16:2:3 from 320; CTh 16:2:19 from 370; and CTh 16:2:27 from 390), and fellowships of co-religionists, whether Jewish, Manichaean (see below, No. 16), or Christian (CTh 11:39:11 from 391). For discussions of ‘consortium’ as “fellowship” and “partnership” in Jewish and Roman law consult D. Daube, “Consortium in Roman and Jewish Law,” Juridical Review, LXII (1950), pp. 71-91; Μ. Bretone, “ ‘Consortium’ e ‘Communio’,” Labeo, VI (1960), pp. 163-215. For examples of the use of this term in a religious context with both a negative and a positive sense (consortium erroris, consortium professionis Christianae, consortium nostrae discipli­nae, consortium caritatis) in the writings of Tertullian, Cyprian, and Gelasius, see E. Wölfflin, “Der Papst Gelasius als Latinist,” ALL, XII (1902), p. 7; A. Beck, Römisches Recht bei Tertullian und Cyprian, Darmstadt 1967, pp. 85, 142.

10.      Acquire: Justinian’s editors changed the original future time (CTh 16:9:4, and see below, No. 44) to a present conjunctive in a future sense, and replaced ‘nec comparare debebit nec... consequi’ by ‘nec comparare debebit... vel ... con­sequatur’, a usage well attested in other late Latin sources. See E. Grupe, “Zur Latinität Justinians,” ZSSRG, RA, XV (1894), pp. 328-329. For a comparative discussion of the verbs ‘comparare’ and ‘consequi’ consult W. H. Kirk, “A Note on Latin Verbs of Acquisition,” Classical Philology, XXI (1926), pp. 77-80.

11.      Any other title: the interpolation of ‘vel alio quoque titulo’ was typical to Justinian’s editors. See E. Grupe, “Zur Latinität Justinians,” ZSSRG, RA, XIV (1893), p. 235.

12.      That same: the interpolation of ‘ipso’ is typical to the treatment of the 16th book of the Theodosian Code by Justinian’s editors. See Honore, p. 221.

BIBLIOGRAPHY

Godefroy, VI:1, pp. 244, 271-272; Seeck, “Zeitfolge,” pp. 240-241; idem, Regesten, pp. 48, 187; Browe, pp. 118, 121, 123; J. Jonkers, “De 1’influence du Christianisme sur la législation relative à l’esclavage dans l’antiquité,” Mnemosyne, Series 3, I (1939), p. 272; Seaver, pp. 32-33; Μ. A. de Dominicis, “Registro delle alterazioni (glossemi ed interpolazioni) nelle costituzioni del Codice Teodosiano e nelle Novelle Posteodosiane segnalate dalla critica,” BIDR, NS, XVI-XVII (1953), p. 438; E. Levy, “Rehabilitierung einiger Paulussentenzen,” SDHI,lang=EN-US style='font-size:8.5pt;font-style:normal'> XXXI (1965), p. 8; Noethlichs, pp. 46-49; Avi-Yonah, pp. 174-175; Langenfeld, pp. 77-85; Reichardt, pp. 24-25, 32; Vogler, pp. 52-53, 64-65, 75.