38 Prohibition on Harassment of the Catholic Church by Donatists, Heretics, Jews, and Pagans Honorius (with Theodosius II) 15 January 409
This law, given by Honorius in his name and in the name of Theodosius II on 15 January 409 at Ravenna, was addressed to the Praefectus Praetorio Theodorus.
Its complete text has been preserved in the Constitutiones Sirmondianae No. 14 (Sirm. 14) and, only partially, in two fragments received into Codex Theodosianus (CTh 16:2:31 and CTh 16:5:46). The textual variations between the text of Sirm. 14 and that of the Codex Theodosianus are insignificant. Most of them consist of unimportant linguistic changes, such as the replacement of ‘curatoris’ by ‘curatorum’, and ‘tueantur’ by ‘tueatur’. Even the addition of ‘non ambigent’ in CTh 16:5:46, which accentuated the legislator’s intentions, does not really alter the law’s content or its general spirit. Theodosius’ editors probably used a better text than that preserved in Sirm. 14.CTh 16:2:31 was copied, with insignificant omissions and changes, into CJ 1:3:10. Both texts, the original and its copy, dealt with harassment of the Catholic Church in general, without any specific reference to Jews. CTh 16:5:46, on the contrary, contained such a reference. Sirm. 14 and the two texts in Codex Theodosianus gave different dates: while Sirm. 14 is dated by the ninth consulate of Honorius and the fifth consulate of Theodosius II, 412, CTh 16:5:46 is dated by the eighth consulate of Honorius and the third consulate of Theodosius II, 409. CTh 16:2:31, finally, is dated by the fourth consulate of Honorius and the consulate of Eutychianus, 398. There are further differences between the dates supplied by the three texts by days and months. Sirm. 14 and CTh 16:5:46 give 15 January, while CTh 16:2:31 is dated 25 April. The agreement between Sirm. 14 and CTh 16:5:46 also concerns the location of the law’s issue, Ravenna, while CTh 16:2:31 locates it in Milan.
The correct consulate is given in CTh 16:5:46, for it corresponds to the second term of Theodorus, this law’s addressee, as Praefectus Praetorio of Italy, Illyricum and Africa, between 13 September 408 and 15 January 409.
A few days after the issue of this law he was replaced by Caecillian, already named as the addressee of several laws issued on 21 January. The inscription of CTh 16:5:46 specifies, indeed, that Theodorus was serving then as praefectus praetorio for the second time. The consulate reference in Sirm. 14 is based, probably, on the Fasti lists, and is, consequently, of no value for the correct dating of the law. The other dating elements found there, however, are identical to those presented by CTh 16:5:46, and should be considered as deriving from the original text, hence of particular importance for its dating. The date given by CTh 16:2:31 does not result from a copyist’s error, but from an erroneous reconstruction of the original date by the editors of the Codex. It seems that when the original law was divided into two texts, only CTh 16:5:46 retained complete information on the legislators and the addressee, as well as on the date, while CTh 16:2:31 conserved only the name of Theodorus as addressee, and even that without the ordinal number of his office-term as praefectus praetorio. Theodosius’ editors reconstructed the law’s subscription by copying the subscription of another law, addressed to Theodorus during his first term as praefectus praetorio and issued at Milan on 25 April 398. They had to attribute this law, consequently, to Arcadius and Honorius, and were followed on this point by Justinian’s editors.The date given in CTh 16:5:46 is to be preferred to that transmitted in Sirm. 14, finally, on grounds of the law’s content, which reflects the situation in Africa in 408/409 far better than in 411/412. The law’s preamble described in detail the violent treatment meted to the Catholic clergy throughout Africa, and accused the local authorities of abetting the rioters, by conniving at their actions and by failing to protect the Catholic clergy and to report these events to higher authorities. Such events occurred in Africa after Stili- cho’s fall on 23 August 408 (see above, No.
37). Important riots against the Catholic clergy broke out in Numidia and in Africa Proconsularis, and Catholic bishops were flogged, murdered, or driven out. A law issued by the Court at Ravenna on 15 January 409 would accord very well with the other laws it issued, in response to the appeals of the African Catholic clergy, on 11 and 24 November 408. In 411, on the other hand, the dramatic decline of the African Donatist Church, following its formal condemnation in the Council of Carthage, was very much in evidence. The Dona- tists appealed unsuccessfully against this condemnation to the Court in Ravenna, and on 30 January 412 Honorius issued a law, addressed to the Praefectus Praetorio Seleucus {CTh 16:5:52), which imposed a ban on all Donatist activity, heavy penalties on practicing Donatists, and exile on the Donatist clergy. Our law reflects, therefore, the situation in 408/409 rather than that of 411/412.The legislator ordered the African governors to hold enquiries on the attacks perpetrated against the Catholic clergy, to bring the guilty to justice, and to sentence them to either banishment with confiscation of property or to hard labour in the mines. From then on, he warned the authorities, both Imperial and municipal, they were to protect the Catholic clergy and see to it that those convicted of this crime were executed. He threw open the right to prefer charges under this heading, since injuries to clerics were recognized as falling within the “public crime” category. The civil authorities were encouraged to turn to the military authorities for help, if the need arose. The legislator emphasized that the laws previously issued against Donatists, other heretics, Jews, and pagans were still in force, and that they should be implemented by the authorities. The responsibility for this lay not only with the governors, but with the municipal authorities as well. He may have been referring, in this passage, to the laws from 15 November 407, believed—by Donatists and others—to have been invalidated with Gildo’s fall.
Augustine had to ask Olympius, towards the end of 408, to reconfirm their validity.1 Our law, like the law from 24 November 408 (see above, No. 37), associated together Donatists, Jews, and pagans in a legislation destined to protect the African Catholic Church. It may be taken as yet another evidence for a certain measure of cooperation between these groups in a common struggle against the Catholic Church and the Imperial government, more and more committed to its victory. The implementation of this law was, however, at best partial and temporary. With the reestablishment of the German ascendancy in the Western court towards the end of 409, Honorius was prevailed upon by his pagan commanders to repeal the law from 14 November 408 and to permit heretical cults. The adoption of a more tolerant attitude towards the heretical sects could be explained, on the other hand, by the interest of the Western court to pacify Africa, its main support against Alaric. Leschi suggested that the tolerant policy was not initiated by the court, but by the local authorities led by magistrates such as the pagan Proconsul Macrobius and Heraclian. De Veer demonstrated, however, that the rapid changes from repression to toleration, and vice versa, took place at Ravenna, independently of the local authorities in Africa. Honorius reversed his policy again, and resumed his militant support of the Catholic Church, on 25 August 410, when he abolished the permission granted in 409 (CTh 16:5:51).2Constitutio Sirmondiana, 14, ed. Mommsen, pp. 918-919
IMPP. HONORIUS ET THEODOSIUS THEODORO *VIRO INL. PRAEFECTO PRAETORII
Dubium non est coniventia iudicum* fieri et culpabili dissimulatione inultum relinqui, quod ad turbandam quietem publicam in contemptum s Christianae religionis, quam debito cultu veneramur, sub publica testificatione conmissum addiscimus et pariter non punitum.
Vicina peccato in iudice dissimulatio est, quem ignoratio commissi criminis non defendit.* Per provinciam Africam tantum quorundam temeritati licuisse conperimus, ut Christianae legis antistites de propriis domibus raptos io vel, quod est atrocius, de ecclesiae catholicae penetralibus* protractos cruciatibus diversis afficerent, alios vero ad solam divini cultus iniuriam avulsa capillorum parte foedatos vel alio iniuriae genere deformatos concurrentium speculis exhiberent, ut esset circa eos venia gravior, quorum saluti contemptus ignoverat. Tanti sceleris nefas et immane is flagitium numquam ante conpertum Africanorum iudiciorum auctoritas nec creditae sibi potestatis iure persequitur nec debita cura referendi in nostram fecit notitiam pervenire. Ignorari ab his potuisse non credimus, quod commissum in civitatibus publice memoratur, quod iugis et magistratuum et ordinum cura, stationarii apparitoris* sollicitudo, quae 20 ministra est nuntiorum atque indicium, absentiae exhibet potestatum.Licet enim insinuare levia, graviora reticere? Non tacuissent, quod propriis innotescere rectoribus per alterum formidarent, nisi intellegerent nolle iudicem vindicare. Expectandum fuit institutis accusationibus contra professionis propriae sanctitatem, ut episcopi suas persequeren- 25 tur iniurias et reorum nece deposcerent ultionem, quos invitos decet vindicari? Deducitur in hanc necessitatem veniae persuasor alienae, praeceptor indulgentiae, ut de se aut ipse tractasse videatur, quod et petenti alius non negaret, aut praeceptis obsecuturus sacerdotii criminosorum vi impunite subiaceat. Episcopos et alios ecclesiae 30 catholicae ministros nisi aut vigor potestatum aut fides iudicum laudabili auctoritate tueatur, erunt addicti audaciae pessimorum. Quapropter iubemus, ut eos, qui talia commisisse dicuntur, diversorum per Africam iudicum sine innocentum laesione requirat auctoritas, ac proprio exhibitos examini, si convinci manifesta probatione cognoverit, cuiuslibet 35 dignitatis et honoris reos probatos aut metallo tradat aut poenam deportationis subire conpellat, facultatibus eorum fisco nostro sociatis, ut habeant vitam sibi clementiae nostrae more concessam, quae similibus non donabitur tempore futuro criminibus.
Si quidem praesentis legis aeternitate cunctis observanda constituimus, Theodore parens carissime adque amantissime, quod inl(ustris) magnificentiae tuae praelatum litteris, proponendum edictis, in omnium volumus notitiam pervenire: ut, si quisquam in hoc genus sacrilegii proruperit, ut in ecclesias catholicas inruens sacerdotibus et ministris vel ipsi cultui locoque aliquid inportet iniuriae, quod geretur,* litteris ordinum, magistratuum et curatoris* et notoriis* apparitorum, quos stationarios appellant, deferatur in notitiam potestatum, ita ut vocabula eorum, qui agnosci potuerint, declarentur. Et si per multitudinem commissum dicitur, si non omnes, possunt tamen aliquanti cognosci, quorum confessione sociorum nomina publicentur. Adque ita provinciae moderator, sacerdotum et catholicae ecclesiae ministrorum, loci quoque ipsius et divini cultus iniuriam capitali in convictos vel confessos reos sententia noverit vindicandam nec expectet, ut episcopus iniuriae propriae ultionem deposcat, cui sacerdotii sanctitas ignoscendi solam gloriam derelinquit. Sitque cunctis non solum liberum, sed etiam laudabile, factas sacerdotibus vel ministris atroces iniurias velut publicum crimen* persequi ac de talibus reis ultionem mereri, ut hac saltem ratione, quod agi adversum se per episcopum non posse confidit, at aliorum accusationibus malorum audacia pertimescat. Et si multitudo violenta civilis apparitionis exsecutione et adminiculo ordinum possessorumve non potuerit praesentari, quod se armis aut locorum difficultate tueantur,* iudices Africani armatae apparitionis praesidium, datis ad virum spectabilem comitem Africae* litteris praelato legis istius tenore deposcent, ut rei talium criminum non evadant. Et ne Donatistae vel ceterorum vanitas haereticorum aliorumque eorum, quibus catholicae communionis cultus non potest persuaderi, ludaei adque gentiles, quos vulgo paganos appellant,* arbitrentur legum ante adversum se datarum constituta tepuisse, noverint iudices universi praeceptis earum fideli devotione parendum et inter praecipua curarum, quidquid adversus eos decrevimus, exequendum. Si quisquam iudicum peccato coniventiae, dissimulandi arte, executionem praesentis legis omiserit, noverit amissa dignitate graviorem motum se nostrae clementiae subiturum, officium quoque suum,* quod saluti propriae contempta suggestioni defuerit, punitis tribus primatibus condemnationi viginti librarum auri subdendum. Ordinis quoque viri, si in propriis civitatibus vel territoriis commissum tale aliquid siluerint gratia obnoxiorum,75 deportationis poenam et propriarum amissionem facultatum se noverint subituros.
DATA XVIII KAL. FEBRUAR. DD. NN. HONORIO VIIII ET THEODOSIO V* AUG. CONSS.· RAVENNA.
THE TWO EMPERORS HONORIUS AND THEODOSIUS TO THE ILLUSTRIOUS THEODORUS,3 PRAEFECTUS PRAETORIO
There is no doubt that the crime perpetrated, as we learn from public evidence, with the connivance of the judges4 and left unpunished by their culpable dissimulation, is aimed, with equal impunity, at the disturbance of public peace and the contempt of the Christian religion, which we venerate with the due worship. Dissimulation in a judge approaches transgression, because he is not excused by ignorance of the crime committed.5 We learn that so much was allowed throughout Africa to the temerity of certain people, that they seized priests of the Christian Law out of their homes, and, what is even more atrocious, dragged them out of the sanctuaries6 of the Catholic Church, and subjected them to various tortures; some they exhibited, with part of their hair cut, or deformed in some other sort of injury, a spectacle before crowds, with the sole aim of damaging the Divine cult. It is therefore harder to pardon on account of these people those whose contempt for them resulted in neglecting their safety. The authority of the African courts did not prosecute such a horrible crime, such a monstrous sin, the like of which was never known before, did not use the power entrusted to it, neither did it inform us, as it was by duty bound to report. We do not believe that it could have been unknown to them, for the crime committed is publicly mentioned in the cities, for the permanent care of both magistrates and curias, as well as the diligence of the station apparitor7—who is both the news’ servant and their witness—report to absent authorities. Is it permitted to report on trivialities, and keep silent on grave matters? They would not have kept silent, for they would have been afraid that it will be reported to their own governors by some one else, unless they understood that the judge does not want to punish. Was it necessary to wait until the bishops prefer charges despite the sanctity of their special vocation, prosecute for their injuries and demand for the accused capital punishment, they who should have been protected against their will? He who preaches forgiveness for others and teaches to pardon was forced into such a necessity that he is obliged either to appear to act for himself—and no one would deny this even to his enemy—or to follow the rules of the priesthood and yield, with no recourse to punishment, to the violence of criminals. Unless the bishops and the other ministers of the Catholic Church are defended either by the vigour of the authorities, or the faith of the judges, in a praiseworthy authority, they shall be exposed to the audacity of the most evil people. We order, therefore, that the authority of the judges shall search throughout Africa those who are said to have committed such crimes without harming the innocent, shall put them to its proper examination, and if it shall find them guilty by evident proof, then—regardless of the dignity or the honour of the accused found guilty—it shall either send them to the mines or force them to suffer the punishment of banishment; their property shall be confiscated to our fisc, and they shall retain their life which we grant them in our clemency, though it shall not be granted in future to persons convicted of similar crimes. Since we establish in the eternity of the present law what should be observed by all, Theodoras our dearest and most loving father, we want that it shall come to the knowledge of all, displayed in letters of your Illustrious Magnificence and published in edicts; so that if anyone shall break forth into this sort of sacrilege, invade Catholic churches and cause any injury to the priests, the ministers, or the cult itself and the place, the deed8 shall be made known to the authorities by letters of the curias, the magistrates and the Curator,9 and by the reports10 of the Apparitors, who are called Stationarii, so that the names of those who can be identified shall be declared. And if it is said that the crime was committed by a multitude, if all cannot be identified, at least some can by whose confession the names of their associates shall be made known. Let the governor of the province know, in this way, that capital punishment is the obligatory sentence against persons accused and convicted for—or having confessed to—causing injury to the priests and the ministers of a Catholic church, to its own place and divine cult, and let him not wait until the bishop demand punishment for his personal injury, he to whom the sanctity of the priesthood leaves only the glory of forgiveness. Prosecuting atrocious injuries done to priests or to ministers as a public crime,11 and obtaining punishment against persons accused of such deeds, not only shall be open to all, but also praiseworthy, if only because the audacity of evil people trusts that it cannot be accused by a bishop, but shall dread accusation by others. And if a violent multitude could not be confronted by the action of the civil service and the support of the curias and the possessors,12 because they shall defend themselves,13 with arms or be defended by difficult locations, the African judges shall demand protection from the armed service in letters given to the renowned Comes of Africa14 and transmitting the tenor of this law, in order that those who are guilty of such crimes shall not escape. And lest the Donatists and the worthlessness of the other heretics and the others, who cannot be persuaded to join the cult of the Catholic communion, the Jews and the Gentiles, whom the people call pagans,15 decide that what was constituted in the laws previously given against them cooled down, let all the judges know that their precepts must be obeyed with faithful devotion, and that among their chief cares must be the implementation of everything we have decreed against them. If any of the judges shall omit to implement the present law through the sin of connivance and the device of dissimulation, let him know that he shall lose his dignity and suffer a graver change of our clemency; his administrative staff,16 too, which neglected its duty and showed contempt for its own safety, its three senior officers shall be punished and it shall be fined twenty gold pounds. Decurions, too, if they shall keep silent about anything of this kind committed in their own cities or territories out of favour for the guilty, let them know that they shall suffer the penalty of banishment with the loss of their property.
GIVEN ON THE EIGHTEENTH DAY BEFORE THE CALENDS OF FEBRUARY AT RAVENNA IN THE CONSULATE OF OUR TWO MASTERS HONORIUS FOR THE NINTH TIME AND THEODOSIUS AUGUSTUS FOR THE FIFTH TIME.17
Codex Theodosianus, 16:2:31, ed. Mommsen, pp. 845-846
IDEM AA.· THEODORO P(RAEFECTO) P(RAETORI)O
Si quis in hoc genus sacrilegii proruperit, ut in ecclesias catholicas inruens sacerdotibus et ministris vel ipsi cultui locoque aliquid inportet iniuriae, quod geritur litteris ordinum, magistratuum et curatorum et 5 notoriis apparitorum, quos stationarios appellant, deferatur in notitiam potestatum, ita ut vocabula eorum, qui agnosci potuerint, declarentur. Et si per multitudinem commissum dicetur, si non omnes, possunt tamen aliquanti cognosci, quorum confessione sociorum nomina publicentur. Adque ita provinciae moderator sacerdotum et catholicae io ecclesiae ministrorum, loci quoque ipsius et divini cultus iniuriam capitali in convictos sive confessos reos sententia noverit vindicandam nec expectet, ut episcopus iniuriae propriae ultionem deposcat, cui sanctitas ignoscendi solam gloriam dereliquit. Sitque cunctis non solum
liberum, sed et laudabile factas atroces sacerdotibus aut ministris 15 iniurias veluti publicum crimen persequi ac de talibus reis ultionem mereri. Quod si multitudo violenta civilis apparitionis executione et adminiculo ordinum possessorumve non potuerit praesentari, quod se armis aut locorum difficultate tueatur, iudices Africani armatae apparitionis praesidium, datis ad virum spectabilem com(item) Afric(ae) 20 litteris, praelato legis istius tenore deposcant, ut rei talium criminum non evadant.
DAT. VII KAL. MAI. MED(IOLANO) HONORIO A. IIII ET EUTYCHIANO CONSS.*
THE SAME TWO AUGUSTI18 TO THEODORUS, PRAEFECTUS PRAETORIO
If someone shall break forth into this sort of sacrilege, invade Catholic churches and cause any injury to the priests, the ministers, or the cult itself and the place, the deed shall be made known to the authorities by letters of the curias, the magistrates and the Curators, and by the reports of the Apparitors, who are called Stationarii, so that the names of those who can be identified shall be declared. And if it shall be said that the crime is committed by a multitude, if all cannot be identified, at least some can, by whose confession the names of their associates shall be made known. Let the governor of the province know, in this way, that capital punishment is the obligatory sentence against persons accused and convicted for—or haivng confessed to—causing injury to the priests and ministers of a Catholic church, to its own place and divine cult, and let him not wait until the bishop demand punishment for his personal injury, he to whom the sanctity of the priesthood leaves only the glory of forgiveness. Prosecuting atrocious injuries done to priests or to ministers as a public crime, and obtaining punishment against persons accused of such deeds, not only shall be open to all, but also praiseworthy. And if a violent multitude could not be confronted by the action of the civil service and the support of the curias and the possessors, because it shall defend itself with arms or be defended by difficult locations, the African judges shall demand protection from the armed service in letters given to the renowned Comes of Africa and transmitting the tenor of this law, in order that those who are guilty of such crimes shall not escape.
GIVEN ON THE SEVENTH DAY BEFORE THE CALENDS OF MAY AT MILAN IN THE CONSULATE OF HONORIUS AUGUSTUS FOR THE FOURTH TIME AND 19
EUTYCHIANUS.
Codex Theodosianus, 16:5:46, ed. Mommsen, p. 870
IDEM AA.· THEODORO P(RAEFECTO) P(RAETORI)O II
Post alia: Ne Donatistae vel ceterorum vanitas haereticorum aliorumque eorum, quibus catholicae communionis cultus non potest persuaderi, ludaei adque gentiles, quos vulgo paganos appellant, arbitrentur 5 legum ante adversum se datarum constituta tepuisse, noverint indices universi praeceptis earum fideli devotione parendum et inter praecipua curarum quidquid adversus eos decrevimus non ambigant exsequendum. Quod si quisquam indicum peccato coniventiae exsecutionem praesentis legis omiserit, noverit amissa dignitate graviorem motum se io nostrae clementiae subiturum, officium quoque suum, quod saluti propriae contempta suggestione defuerit, punitis tribus primatibus condemnatione viginti librarum auri plectendum. Ordinis quoque viri si in propriis civitatibus vel territoriis commissum tale aliquid siluerint in gratiam noxiorum, deportationis poenam et propriarum amissionem is facultatum se noverint subituros.
DAT. XVIIIKAL. FEB. RAV(ENNAE) HONOR(IO) VIII ET THEOD(OSIO) III AA. CONSS.·
THE SAME TWO AUGUSTI20 TO THEODORUS, PRAEFECTUS PRAETORIO FOR THE SECOND TIME
After other matters: Lest the Donatists and the worthlessness of the other heretics and the others, who cannot be persuaded to join the cult of Catholic communion, the Jews and the Gentiles, whom the people call pagans, decide that what was constituted in the laws previously given against them cooled down, let all the judges know that their precepts must be obeyed with faithful devotion, and let them not hesitate to implement everything we have decreed against them among their chief cares. If any of the judges shall omit to implement the present law through the sin of connivance, let him know that he shall lose his dignity and suffer a graver change of our clemency; his administrative staff too, which neglected its duty and showed contempt for its own safety, its three senior officers shall be punished and it shall be fined twenty gold pounds. Decurions too, if they shall keep silent about anything of this kind committed in their own cities or territories out of favour for the guilty, let them know that they shall suffer the penalty of banishment with the loss of their property.
GIVEN ON THE EIGHTEENTH DAY BEFORE THE CALENDS OF FEBRUARY AT RAVENNA IN THE CONSULATE OF THE TWO AUGUSTI HONORIUS FOR THE EIGHTH TIME AND THEODOSIUS FOR THE THIRD TIME.21
Codex Justinianus, 1:3:10, ed. Kriiger, p. 19
IMPP. ARCADIUS ET HONORIUS AA. THEODORO PP.
Si quis in hoc genus sacrilegii proruperit, ut in ecclesias catholicas inruens, sacerdotibus et ministris vel ipso cultu locoque aliquid importet iniuriae, quod geritur, a provinciae rectoribus animadvertatur. Atque ita 5 provinciae moderator sacerdotum et catholicae ecclesiae ministrorum, loci quoque ipsius et divini cultus iniuriam capitali in convictos sive confessos reos sententia noverit vindicandum nec expectet, ut episcopus iniuriae propriae ultionem deposcat, cui sanctitas ignoscendi gloriam dereliquit: sitque cunctis laudabile factas atroces sacerdotibus aut io ministris iniurias veluti publicum crimen persequi ac de talibus reis ultionem mereri. Quod si multitudo violenta civilis apparitionis exsecutione et adminiculo ordinum possessorumve non potuerit praesentari, quod se armis aut locorum difficultate tueatur, praesides provinciarum etiam militari auxilio per publicas litteras appetito competentem 15 vindictam tali excessui imponere non morentur.
D. VI K. MAI. MEDIOLANO HONORIO A. IIII ET EUTYCHIANO CONSS.*
THE TWO EMPERORS AND AUGUSTI ARCADIUS AND HONORIUS TO THEODORUS, PRAEFECTUS PRAETORIO
If someone shall break forth into this sort of sacrilege, invade Catholic churches and cause any injury to the priests, the ministers, or the cult itself and the place, the deed shall be punished by the governors of the province. Let the governor of the province know, in this way, that capital punishment is the obligatory sentence against persons accused and convicted for—or having confessed to— causing injury to the priests and ministers of a Catholic church, to its own place and divine cult, and let him not wait until the bishop demand punishment for his personal injury, he to whom his sanctity leaves the glory of forgiveness. Prosecuting atrocious injuries done to priests or to ministers as a public crime, and obtaining punishment against persons accused of such deeds, shall be praiseworthy for all. But if a violent multitude could not be confronted by the action of the civil service and the support of the curias and the possessors, because it shall defend itself with arms or be defended by difficult locations, the governors of the provinces shall demand even military help in public letters and shall not delay imposing the appropriate punishment for such deviation.
GIVEN ON THE SIXTH DAY BEFORE THE CALENDS OF MAY AT MILAN IN
THE CONSULATE OF HONORIUS AUGUSTUS FOR THE FOURTH TIME AND OF EUTYCHIANUS.22
NOTES
1. CSEL, LVIII, 1923, p. 29.
2."Times New Roman"'> Frend, pp. 272-274, 288-289; Stein, I, pp. 257, 265; A. C. de Veer, “Une mesure de tolerance de I’empereur Honorius,” REB, XXIV (1966), pp. 189195.
3. Theodorus: see above, No. 29, n. 3.
4. The term ‘iudex’, “judge,” is employed here in its wider meaning of “governor.”
5. Comitted: an extension of the legal rule laid down by Valentinian, Theodosius and Arcadius on 27 May 391 (CTh 1:1:2 = CJ 1:18:12), that no one is allowed not to know the laws or to ignore them.
6. “Sanctuaries” is an uncommon use of the term ‘penetrale’ with the meaning of “church”; it usually designated the inner room consecrated to the ‘penates’. The Vulgate avoids it in its translation of the term □’’UHp UHp and uses the literal translation ‘sanctus sanctorum’. It employs this term in its rendering of Ps. civ:30 (in penetralibus regum ipsorum), probably inspired by Vergil’s ‘apparent Priami et veterum penetralia regum’ (Aeneis, 2:484). The legislator emphasized, in his use of the term here, that the priests were forcefully dragged from within the innermost parts of the churches. See also: R. J. Getty, “ ‘Penetralia’ and ‘Penetrabilia” in Post-Classical Latin,” American Journal of Philology, LVII (1936), pp. 233-244.
7. Apparitor: the duty of these officers, posted in stations (stationes), was to maintain security in their areas and relay information on events there to their superiors. The duties of the ‘stationarii’ under the Prefect of Rome were defined as ‘ad tuendam popularium quietem et ad referendam sibi quid ubiubi agatur’, “to protect the peace of the populace and report to him on what is done everywhere” (Dig. 1:12:1:12). See also Habel, PW, 1:3, 1895, s.v. Apparitores, Cols. 191-194: Lamert, PW, 11:6, 1929, s.v. Stationarius, Col. 2213; T. Mommsen, “De Apparitoribus Magistratuum Romanorum,” RhMus, VI (1848), pp. 1-57. This term appears in the Midrashic literature in the Hebrew transcription “DPUUD or “DPUUDK. See Gen. R. XXVL2, Theodor-Albeck ed., Berlin 1902/1903-1928/1929, p. 245; Exod. R., LI:8, Wilna 1886/1887, p. 162; Cant. R., LXXX:7, Wilna 1886/1887, p. 70. See also Sperber, pp. 118-119. On the possible links between the meaning of the term ‘statio’ in the military sphere, the Hebrew term IDVD and the Christian liturgical sense of the term consult C. Mohrmann, “Statio,” Vigiliae Christianae, VII (1953), pp. 221-245.
8. Deed: the legislator employs future indicative passive to emphasize that the deed will be done in the future. Justinian’s editors corrected to ‘geritur’, (praes, indic, pass), strengthening in this way the general character of this measure as a general rule: whenever this is done.
9. Curator was the highest office in the hierarchy of the municipal government. The curator was charged, among other duties, with controlling the city’s finances, policing, and particularly with the protection of the churches, the cult and the clergy. After the late third century he was appointed by the curia from its members. See Kornemann, PW, 1:8, 1901, s.v. Curatores, Cols. 1806-1811; Stein, I, pp. 51-52.
10. The ‘notorium’ was a written report on a crime. See Paul’s statement: ‘nuntiatores, qui per notitia indicia produnt, notoriis suis adsistere iubentur’, “informers who present evidence in writing, are ordered to stand by their written reports” (Dig. 48:16:66, par. 3). This term appears in a Hebrew transcription in the Midrashic literature. See Exodus R.: “Similar to a man who committed murder and was brought before the ruler, when he read his J’HD’D he said, is he still alive?” (Exodus Rabba, 31:13, Wilna 1886/1887, p. 116). See also Sperber, pp. 112-113.
11. Crimes against society and public order were also designated by the term ‘crimen legitimum’. These crimes were defined in special laws (leges iudicio- rum publicorum), judged according to special procedures (iudicia publica), and penalized with predetermined and obligatory punishments (poenae legitimae). The right to prefer charges on these crimes was open to the general public, according to a definition given in the law of Constantine from 326, which imposed restrictions on the use of this right in cases of adultery: ‘Quamvis adulterii crimen inter publica referatur, quorum delatio in commune omnibus... conceditur’. “Although the crime of adultery is included among the public crimes, accusation of which is allowed... to all” (CJ 9:9:29). See also the statement in the Institutiones (4:18:1): ‘Publica autem dicta sunt, quod cuivis ex populo exsecutio eorum plerumque datur’. “They are called public because prosecution in them is generally granted to each member of the people.” See also Hitzig, PW, 1:8, 1901, s.v. Crimen, Cols. 1713-1714.
12. Possessors, in Greek XTqTWQEg, were the local notables and rich landowners, in the cities as well as in the villages, who fulfilled an important municipal role during the fourth to sixth centuries. See Y. Dan, The City in Eretz-Israel during the Late Roman and Byzantine Periods, Jerusalem 1984, pp. 87-90 (in Hebrew).
13. Defend themselves: the legislator referred here to the multitude. Theodosius’ editors corrected, accordingly, from plural to singular: ‘se... tueatur’.
14. The Comes of Africa headed the African Territorial Command, which comprised the provinces of Africa Proconsularis, Byzacium, Numidia, and Mauretania Sitifiensis. Since Gildo’s fall the officer holding this command had the right to the relatively inferior personal rank of Renowned only, due to Stilicho’s attempt to reduce the power of the Comes of Africa, who represented a permanent potential threat to the court at Ravenna by his control of the corn supplies to Italy. In 409 this post was held by Heraclian, who earned it in 408, by organizing Stilicho’s arrest and executing him with his own hands at Ravenna. He kept this office till his revolt, and defeat, in 413. See T. Kotula, “Le fond africain de la rdvolte d’Heraclien en 413,” Antiques africaines, XI (1977), pp. 257-266; PCBE, s.v.; PLRE, II, s.v. Heraclianus; Stein, I, p. 123; la, p. 547 n. 114. The translation of this phrase owes much to analogous phrases in Sirm. 4 and 9, dealing with the transmission of the law’s tenor and its publication in documents issued by the praefectus praetorio. Theodosius’ editors, on the other hand, rephrased this passage in such a way that it is the judges who are presented as transmitting the law’s tenor in their appeal to the Comes of Africa.
15. Pagans: see above, No. 35, n. 3.
16. “Administrative staff” refers to the administrative staff serving under the provincial governor. The total effectives of the staff under the Proconsul of Africa in 398 amounted, officially, to 400 men (CTh 1:12:6 = CJ 12:55:2). Our law emphasized that the staff bore responsibility for the governor, although the governor was hierarchically superior to it and was, for this reason, responsible for it. This system of mutual, though not hierarchically structured, ties of responsibility, far from being exceptional in both the theory and the practice of the Imperial bureaucracy of the fifth and sixth centuries, became in effect one of its principal structural elements, with far-reaching results in the spheres of organization and action. The three senior officials who bore a particular responsibility for the operation of the whole team were the ‘princeps’, the ‘cornicularius’, and the ‘adiutor’, known also under the name of ‘primiscrinius’. Our law proves that delinquent governors were liable to be subjected to an administrative punishment—their dismissal—and to a harsher, though still undefined, punishment, in the absence, probably, of predetermined and definite punishments for this type of crime. See R. C. Blockley, “Internal Self-Policing in the Late Roman Administration—Some Evidence from Ammianus Marcellinus,” Classica et Medievalia, XXX (1969), pp. 403-419; A. E. R. Boak, PW, 1:34, 1937, s.v. Officium, Cols. 2045-2056; Kaser, RZPR, pp. 443-444; Robertis, loc. cit.; Stein, I, p. 70.
17. Given... time: 15 January 412.
18. Augusti: Arcadius and Honorius.
19. Given... Eutychianus: 25 April 398.
20. Augusti: Honorius and Theodosius II.
21. Given... time: 15 January 409.
22. Given... Eutychianus: 26 April 398. This date resulted, probably, from a corruption of the date given in CTh 16:2:31: VII kal. Mai. became VI. k. Mai. It must have happened quite early, for it appeared in the version of CJ 1:3:10 quoted by Gregory the Great in 603. See Registrum Epistolarum2, 13:50, ed. L. M. Hartmann, Monumenta Germaniae Historica, Epistolae, II, 1957, p. 415.
BIBLIOGRAPHY
Godefroy, VI:1, pp. 73-75; T. Mommsen, ZSSRG, RA, XXI (1900), pp. 185-186; Seeck, Regesten, pp. 95-96, 111, 316; F. Μ. de Robertis, “Le sentenze contra constitutiones e le sanzioni penali a carico del giudicante,” ZSSRG, RA, LXII (1942), p. 263; Seaver, p. 60; W. H. C. Frend, The Donatisi Church, Oxford 1952, p. 271; L. Leschi, “Le dernier proconsul pa'ien de la province d’Afrique (410 ap. J.C.),” 2e Congrès national des sciences historiques, Alger 1930, pp. 253-260 = Etudes d’épigraphie, d’archéologie et d’histoire africaines, Paris 1957, pp. 132-135.