8 Prohibition of Persecution of Converts and of Proselytism

Constantine the Great

18 October 329

This law, given on 18 October 329 in Bergule, was addressed to the Praefectus Praetorio Evagrius.

The dating elements given in Codex Theodosianus are erroneous. The editors of the Codex dated this law to 18 October 315, but the first term of office of Evagrius as praefectus praetorio occurred much later. Furthermore, Fragmentum Vaticanum No. 273 proves that on 19 October 315 Constantine was in Milan, prior to his depar­ture for Germany.¹ The marked contrast, finally, between this law’s sharp antisemitism, in its content as well as in its style, and the essentially moderate tone that characterized Constantine’s legisla­tion on religious matters between 312 and 324 (or at least 320) raises doubts on its dating to that early period.² Seeck corrected the date provided in the Codex by combining this law with CTh 16:8:6 and CTh 16:9:2 and dating them at first to 329, and finally to 339. The two later laws originated indeed in one law, for they share the same legislator, addressee, date, and subject, the first terminated with “and other matters”, the second opens with “after other matters”; but their combination with our law would necessitate an unjustified emendation of the legislator’s name and the calendrical date. The emendation of the unmistakably corrupt consulate data, on the other hand, is certainly justified. Noethlichs accepts the traditional date, and considers this law to be Constantine’s first law on the Jews. He suggests that the addressee was a contemporary Vicar of Italy, but this solution does not resolve all the identification and dating difficulties raised by this law.

Three elements of the information provided in our law are vital to its correct dating: the names of Evagrius and ‘Murgillo’ and the calendrical date, 18 October.

In this law Constantine imposed the penalty of death at the stake on Jews persecuting Jewish converts to Christianity, while emphasizing that such persecutions were effectively taking place at that time. He could have obtained this information from the Comes Joseph, who told him about the persecutions he had suf­fered at the hands of the Jews on his conversion to Christianity.⁶ The law also imposed penalties on proselytes and on Jews receiv­ing proselytes into their community. In its sharp antisemitic tone this law resembles the letter addressed by Constantine on 19 June 325 to all the churches in the Empire, in which he publicized the resolution of the Council of Nicaea on the subject of Easter’s date.⁷ Both documents may have been drafted by the same man, probably a clerical member of the court, yet one who did not belong to the professional legal staff serving there.⁸ Eusebius prob­ably referred to this law when he recorded that Constantine pro­hibited Jews to possess Christian slaves under penalty of fine and emancipation of these slaves.⁹ If this measure formed a part of the original text of our law, it was probably omitted by Theodosius’ editors in the codification stage.

Codex Theodosianus, 16:8:1, ed. Mommsen, p. 887

IMP. CONSTANTINUS A. AD EV AGRIUM*

ludaeis et maioribus* eorum et patriarchis* volumus intimari, quod, si quis post hanc legem aliquem, qui eorum feralem fugerit sectam* et ad dei cultum respexerit, saxis aut alio furoris genere, quod nunc fieri 5 cognovimus, ausus fuerit adtemptare, mox fiammis dedendus est et cum omnibus suis participibus concremandus.* Si quis vero ex populo* ad eorum nefariam sectam* accesserit et conciliabulis eorum* se adplicaverit, cum ipsis poenas meritas* sustinebit.

DAT. XV KAL. NOV. MURGILLO CONSTANTINO A. IIII ET LICINIO IIII

io CONSS*

Codex Justinianus, 1:9:3, ed. Kriiger, p. 61

IMP. CONSTANTINUS A. AD EVAGRIUM PP.

ludaeis et maioribus eorum et patriarchis volumus intimari, quod, si quis post hanc legem aliquem, qui eorum feralem fugerit sectam et ad dei cultum respexerit, saxis aut alio furoris genere, quod nunc fieri 5 cognovimus, ausus fuerit attemptare, mox flammis dedendus est et cum omnibus suis participibus concremandus.

D. XV K. NOV. MURGILLO CONSTANTINO A. IIII ET LICINIO IIII CONSS.

EMPEROR CONSTANTINE AUGUSTUS TO EVAGRIUS¹⁰

We want the Jews, their principals¹¹ and their patriarchs¹² informed, that if anyone—once this law has been given—dare attack by ston­ing or by other kind of fury one escaping from their deadly sect¹³ and raising his eyes to God’s cult, which as we have learned is being done now, he shall be delivered immediately to the flames and burnt¹⁴ with all his associates.

GIVEN ON THE FIFTEENTH DAY BEFORE THE CALENDS OF NOVEMBER IN MURGILLO, IN THE CONSULATE OF CONSTANTINE AUGUSTUS FOR THE 19

FOURTH TIME AND OF LICINIUS FOR THE FOURTH TIME.¹"*

NOTES

1.        The Fragmenta Vaticana were fragments of an important collection of legal texts, discovered in a palimpsest of the Vatican Library (Vatican MS. 5766). Mommsen was of the opinion that this work was compiled about 320, i.e., under Constantine the Great. Others propose later dates, between 372 and 438 at the latest. Fragment No. 273 reproduced a law issued by Constantine in Milan on 19 October 315: ‘Data ղϲ kal. Nov. Mediolano Constantino et Licinio conss.’, “Given on the fourteenth day before the Calends of November in Milan, in the consulate of Constantine and Licinius.” See P. F. Girard, Textes de droit romain, Paris 1923, p. 559.

2.         See Erhardt, pp. 127-190.

3.         See PLRE, I, pp. 284-285.

4.        The chronology of Constantine’s itinerary is still only partly known, despite the advances made in this field since Seeck’s studies. See P. Bruun, Studies in Constantinian Chronology (Numismatic Notes and Monographs, No.

(1)      29 December 328—Trier (CTh 1:16:4, CTh 7:20:5).

(2)      18 August 329—Serdica (CTh 5:10:1). Seeck emends to 319 (Regesten, p. 65), while Bruun accepts the date transmitted by the Codex (Studies, p. 40).

(3)      29 September 329—Serdica (CTh 12:1:6). Seeck emends to 319 (Re­gesten, p. 65), while Bruun retains the traditional date (Studies, p. 40).

(4)      25 October 329—Heraclea (CTh 12:1:17). Constantine’s arrival at Nico­media in the winter of 329/330 was celebrated by a gold coinage bearing the inscrip­tions ‘Adventus Aug(usti) N(ostri)’, “The arrival of our Augustus,” ‘Gaudium Augusti Nostri’, “Delight of our Augustus,” and ‘Pietas Augusti Nostri’, “Piety of our Augustus.” See P. Bruun, The Roman Imperial Coinage, VII: Constantine and Licinius, London 1966, Nicomedia Nos. 161-168. Constantine’s stay in Nicomedia was recorded in Chronicon Paschale, Ad Annum 328, ed. L. Dindorf, Bonn 1832, p. 526, although the date there should be corrected to 329. This itinerary, Trier— Serdica—Heraclea—Nicomedia, allows us to accept the following emended dates of laws in the Theodosian Code:

(5)      9 March 329—Sirmium (CTh 6:4:1).

(6)      15 March 329—Sirmium (CTh 2:16:1 and CTh 3:30:3). Both laws are dated in Codex Theodosianus to 326. Seeck emends to 329; see Regesten, pp. 21,64.

(7)      13 May 329—Naisus (CTh 11:27:1). The date in Codex Theodosianus is 315. Seeck emends to 329. See Regesten, p. 54.

(8)      29 May 329—Serdica (CTh 9:9:1). The date in Codex Theodosianus is 326. Seeck emends to 329. See Regesten, p. 64. This emendation contradicts no. 9 below.

The emended dates that do not correspond to the proposed itinerary are as follows:

(9)       25 July 329—Naisus (CTh 2:15:1 and CTh 2:16:2). All the Codex manu­scripts—with the exception of MS O—date CTh 2:16:2 “in the consulate of Constan­tine Augustus for the eighth time and of Constantius Caesar,” i.e., 329, on which year Constantine held the consulate for the eighth time and Constantius Caesar for the fourth. MS O gives the date as “the consulate of Constantine Augustus for the fourth time and Licinius,” i.e., 315. Mommsen believed that MS O transmitted the earliest version, which was later emended to 329 (the date given by the other manu­scripts) in order to maintain the chronological sequence of this chapter, for the law preceding it immediately is dated to 326. Yet Mommsen rejected the earlier date— 315—too, because he identified Bassus, the law’s addressee, with Septimius Bassus, Prefect of the City of Rome between 317 and 319, and emended the date accordingly to 319. Seeck, who adopted Mommsen’s argument and conclusion, reinforced them by combining CTh 2:16:2 with CTh 2:15:1, dated by the Codex editors to 319, correctly, in Seeck’s opinion. Furthermore, both laws were given in Naisus on 25 July; see Regesten, p. 55. Bruun, too, combines these two laws but he prefers the date transmitted by most of CTh 2:16:2 manuscripts and consequently emends the date of CTh 2:15:1 to 329. The identification of the addressee of CTh 2:16:2 with Septimius Bassus, however, which convinced both Mommsen and Seeck to emend the law’s date to 319, is no longer certain. New epigraphical evidence indicates that lunius Bassus held the office of Praefectus Praetorio between 318-320 and 332-334, or, at the earliest, between December 317 and December 331. See A. Giardina, “L’Epigrafe di lunius Bassus ad Aqua Viva e i criteri metodici di Godefroy,” style='font-size:8.5pt'>Heli­kon, XI-XII (1971-1972), pp. 259, 264; Haehling, p. 289. The law’s addressee could well be identified with this lunius Bassus, and the traditional date—329—retained. This date contradicts the date of number 8, but corresponds to the dates of numbers 3 and 7.

(10)      3 August 329—Heraclea (CTh 11:30:13). The date given in the Codex is 326. Mommsen and Seeck emend to 329; see Regesten, p. 64. This emendation contradicts number 9, for it is highly improbable that Constantine covered the long way from Naisus to Heraclea in about a week. It also contradicts numbers 2 and 3, for it is again improbable that Constantine came to Heraclea before the 3 August, returned back west in order to be in Serdica on 18 August, perhaps on 29 Septem­ber as well, and turned eastward again.

(11)      13 October 329—Constantinople (CTh 7:20:3). The date transmitted by the Codex is 320; Seeck emended it to 325. See Regesten, pp. 82-83, 110. Bruun,

on the other hand, emended to 329, an emendation considered by Seeck, too; see Studies, p. 46. This emendation presupposes that Constantine left Serdica after 29 September, made his way in forced marches to Constantinople and arrived there before 13 October, left for Heraclea and arrived there before 25 October, and then returned to Constantinople in order to cross the straits and go to Nicomedia (unless he crossed the Sea of Marmara from some point nearer to Heraclea). Such an itinerary would be highly improbable.

We propose, therefore, the following itinerary: Trier—29 December 328; Sirmium—9 and 15 March 329; Naisus—13 May 329; Serdica—29 May (?), 18 August, 29 September 329; Naisus (?)—25 July 329; Bergule—18 October 329; Heraclea—25 October 329; Nicomedia.

5.        Bergule, the present-day Lule Bergas, appears in the Itineraria Antonini Augusti, a list of road stations probably based on an administrative document. This list places Bergule on the road from Hadrianople to Heraclea, a road frequented by travellers coming from Italy, the Danube frontier zones, and the Balkans. See Itinera Romana, ed. O. Cuntz, I, Leipzig 1929, Nos. 137, 230, and 322. The Bor­deaux Pilgrim passed there on his way to Jerusalem in the early years of the fourth decade of the fourth century, and he named the locality ‘mansio Virgoles’, ‘Vir- goles station" (ibid., No. 569). The distance between Bergule and Heraclea is estimated by the Itineraria at 47 to 48 ‘millia passuum’, i.e., about 70 kms (‘mille passuum’ = 1480 m.). Constantine covered this distance easily in 6 days at the utmost, between 19 and 24 October.

6.        See Epiphanius, Πανάριον, 30:4-12, ed. K. Holl, GCS, XXV, Leipzig 1915, pp. 338-348.

7.        For this letter see Eusebius, Εις τον βίον τού μακαρίου Κωνσταντίνου βασιλέως, 111:17-20, ed. F. Winkelmann, Berlin 1975, pp. 89-93.

Roman">8.        See E. Volterra, “Intomo ad alcune costituzioni di Costantino,” Rendi­conti, XIII (1958), pp. 61-89; idem, “Quelques remarques sur le style des constitu­tions de Constantin,” Melanges H. Ltvy-Bruhl, Paris 1959, pp. 325-334.

9.        Eusebius (above n. 7), IV:27, p. 130.

10.      Evagrius’ biography is still only partially known. Chastagnol classes him, in his list of praefecti praetorio, as a “regional” Praefectus Praetorio in the East, together with Ablavius, who held the “ministerial” office of Praefectus Praetorio in Court, from the beginning of 326 till the end of 336. Martindale, on the other hand, points to frequent changes in his position during this period. He certainly served as Praefectus Praetorio in the East from February 326 until the end of the year, when he was replaced by Valerius Maximus, and regained this office on the coming of Constantine to the East in 329. In 330 he was moved to Gaul, where he served as praefectus praetorio at the side of the young Constantine II in the years 330-331. His third tenure as Praefectus Praetorio in the East began in 336 and terminated in 337, on Constantine’s death. He may have served again as Praefectus Praetorio in Italy, Illyricum, and Africa at the side of Constans, from the end of 339 to the end of 340. See A. Chastagnol, “Les prefets du pr6toire de Constantin,” REA, LXX (1968), pp. 321-352; Haehling, pp. 55-57; J. R. Palanque, “Les pr6fets du pretoire sous les fils de Constantin,” Historia, IV (1955), pp. 255, 258-259, 263; PLRE, I, pp. 284-285.

11.      Principals: the term ‘maiores’ is also known from two laws of Honorius and Theodosius from the years 415 and 416: “to Annas didascalus and the ‘maiores’ of the Jews” (see below, Nos. 42 and 43), from the Visigothic Commentary to CTh 2:1:10 (see below, No. 28), and from the Latin translation in the Authenticum to Novel No. 146 from 553 (see below, No. 66). Our law distinguishes between ‘mai­ores’ and ‘Patriarchae’, yet the Visigothic Commentary replaced the term ‘patriar­chae’ with the term ‘maiores’, due probably to the extinction of the Jewish Patriar­chate in Palestine and the reservation of this title to the Christian patriarchs. The evidence does not allow a clear definition of the nature of the maior’s office, but this communal office seems to be analogous to the municipal office of the senior decuri­ons (primates ordinis, primi curiae, decem primi curiales, and principales) ', see Jones, Empire, p. 731. The epigraphical discoveries in Rome testify, in effect, to the exis­tence of a small group of senior communal officials in Rome’s Jewish community. They were probably the chief executive officials, distinguished from the other offi­cials by the title αρχών πόσης τιμής, and in Latin: ‘archon alti ordinis’. See H. Leon, The Jews of Ancient Rome, Philadelphia 1960, pp. 176-177. All communal officials (archons) are designated in the Jewish sources, yet a restricted group of several or or of a single tt/ΚΊ is also known from these sources. Hence, probably, the distinction between tt/ΚΊ and ]pT and tt/ΚΊ ‘U*’KV7 ]pT in the sources. See Alon, Jews, I, pp. 179-183; idem, Studies in the Jewish History of the Second Commonwealth and the Mishnaic-Talmudic Period, Tel-Aviv 1958, pp. 315­316 (in Hebrew); Juster, I, pp. 443-447; S. Krauss, Synagogale Altertümer, Berlin 1922, pp. 140-142; Μ. Schwabe, “A New Document relating to the History of the Jews in the 4th Century c.e. Libanius ep. 1251(F),” Tarbiz, I (1930), pp. 107-121 (in Hebrew). The ‘maiores’ in our law are, consequently, the senior archons in the larger communities, or the single governing smaller communities.

12.      Patriarchs: this term, in the plural, designates the patriarch and his household in Tiberias. This use is documented in both Jewish and non-Jewish sources. See Linder, pp. 119-120; Μ. Stern, Greek and Roman Authors on Jews and Judaism, II, Jerusalem 1980, p. 563. Some historians have suggested that the term “patriarchs” designated the “minor patriarchs,” leaders of the more important communities in the Diaspora yet subordinate to the patriarch in Palestine, but the very existence of these “patriarchs” is still highly conjectural. See Linder, p. 119; Rabello, “Tribute,” p. 228 n. 50 (and see below, No. 27).

13.      The term “sect” has no negative connotation in classical Latin. It desig­nates “school” in philosophical and juridical parlance, but also “party,” “group,” etc. It acquired a distinct negative sense when set over against “religion,” e.g., in Diocletian’s (?) edict against the Manichaeans: ‘novellae et inauditae sectae’ con­trasted with ‘veteriores religiones’. See Mosaicarum et Romanarum Legum Colla­tio, 15:3:3 ed. J. Baviera, Fontes Juris Romani Antejustiniani, II, Florence 1964, p. 580. This contrast became predominant in the Christian context of the later Em­pire, with the term “sects” designating those groups that remained outside the cadres of the Imperial universal Church, mainly Jews and heretics. This was its meaning in three laws received into Codex Theodosianus (CTh 16:8:2; 16:8:8; and 16:8:9) and in Theodosius H’s Third Novel.

14.    Death at the stake was the harshest manner of execution practiced in Rome, under the Republic as well as under the Empire. It was applied to slaves and to freemen of the lowest classes. The crimes usually punished in this way were those considered particularly grave, such as desertion to the enemy, sacrilege, sodomy, incest, and coinage forgery. See Hitzig, PW, 1:8, 1900, s.v. Crematio, Cols. 1700-1702.

15.      The term ‘populus’ had unmistakable Christian connotations, mainly of Biblical origins. It designated “God’s People” (populus Dei), i.e., the universal Church, but it was also used in a more limited sense to designate lay Christians. See H. Janssen, Kultur und Sprache—Zur Geschichte der alien Kirche im Spiegel der Sprachentwicklung von Tertullian bis Cyprian, Nijmegen 1938, pp. 57-59; A. A. R. Bastiaensen, Observations sur le vocabulaire liturgique dans I’ltintraire d’tg£rie, Nijmegen 1962, pp. 3-4; M. P. Ellebracht, Remarks on the Vocabulary of the Ancient Orations in the Missale Romanum, Nijmegen 1963, pp. 51, 191. Neither of these two meanings was expressed by this term in our law. The more general meaning included the Jewish people to a certain extent, but our law posited a contrast between Jews and ‘populus’. The limited sense was no more relevant in this context, for the legislator did not distinguish here between laymen and clergy. It is to be concluded, therefore, that the term carried here its traditional Roman political content, frequent enough in legal texts produced under the late Empire, and that it referred to the population of either the universal Empire or of particular cities and regions. See C. Dupont, “Sujets et citoyens sous le Bas-Empire romain de 312 £ 565 aprds J6sus-Christ,” RIDA, Series 3, XX (1973), p. 324.

16.      The term ‘nefaria’ is employed here with a strong connotation of “sacri­legious.” Compare the Vulgata translation to II Ìàññ. 15:32: ’ostenso capite Ni­canoris et manu nefaria quam extendens contra domum sanctam’, “when Nicanor’s head and his nefarious hand—which he raised against the holy house—were exhib­ited.” Prudentius, again, contrasts ‘nefas’ with ‘innocens’ and ‘Ades’: ‘Aevit negator denique / ex ore prolapsum nefas / cum mens maneret innocens / animusque serva­ret Adem’. “Petrus, who repudiated Jesus, wept over the nefarius words lapsed from his mouth while his mind remained innocent and his spirit kept faith” (Liber Cathemerinon, 1:57-60, ed. M. P. Cunningham, CCSL, CXXVI, 1966, p. 5). This connotation is very close to the pagan sense of the term, namely violation of moral norms and sacrilege.

17.      Conventicles: ‘Conciliabulum’ was not an uncommon synonym to ‘eccle­sia’, and it was used to designate churches until Constantine’s time. See L. Voelkl, “Die konstantinischen Kirchenbauten nach den literarischen Quellen des Okzi­dents,” Rivista di archeologia Cristiano, XXX (1954), pp. 108-110, 136. On the other hand, the Church gradually reserved the term ‘concilium’ to its sanctuaries (CTh 16:2:4), and on the other, the term ‘conciliabulum’—with its concomitant sense of ridicule—to the churches of the heretics (CTh 16:1:2 and 16:5:5) and the synagogues of the Jews. A clear decision on this matter is given in the Statuta Ecclesiae Antiqua, a fourth century canonical collection, canon 71: “The assemblies of heretics shall not be called ‘ecclesia’, but ‘conciliabula’ ” (H. T. Bruns, Canones Apostolorum et Conciliorum Veterum Selecti, I, Berlin 1839, p. 148).

18.      A reference to the punishments on proselytism (circumcision) evolved during the second and third centuries (see above, No. 6). Godefroy was of the opinion, on the other hand, that our law left the choice of punishment to the judge’s discretion, and that this legal situation lasted until the promulgation of law No. 12. Apostasy of Christians had not yet become a crime sanctioned by law. The first law to deal with apostasy through proselytism was probably enacted in 353 (see below, No. 12), while apostasy of Christians embracing paganism was first dealt with in a law from 381 (CTh 16:7:1). Both laws established determinate punish­ments on apostasy. Our law was applicable to Christian as well as pagan proselytes, both types being comprehended in the term ‘populus’ (see above, n. 15).

19.      Given... time: 18 October 315.

BIBLIOGRAPHY

Godefroy, VI: 1, pp. 237-240; Seeck, “Zeitfolge,” p. 240; Juster, I, p. 441 n. 3; p. 442 n. 3; pp. 443-447; Seeck, Regesten, p. 48; Browe, p. 118 n. 43; Seaver, p. 32; Dorries, p. 170; A. Ehrhardt, “Constantin des Grossen Religionspolitik und Gesetzgebung,” ZSSRG, RA, LXXII (1955), pp. 182-183; Noethlichs, pp. 33-34; Linder, pp. 103-106, 131-135 (in Hebrew); Reichardt, pp. 20, 26; Vogler, pp. 50, 54, 63.