44 Regulation of the Acquisition and Possession of Christian Slaves by Jews

 (Honorius with) Theodosius II

10 April 417

This law, given by Theodosius II in his name and in that of Hono­rius at Constantinople on 10 April 417, was addressed to Monax- ius, Praefectus Praetorio of the East.

The legislator prohibited acquisition of Christian slaves ‘inter vivos’, but permitted Jews to inherit Christian slaves and possess them, on condition that they shall not convert them to Judaism. If a Christian slave had been illegally acquired by a Jew, and the matter had been disclosed to the authorities by the slave, he was to be emancipated. Those guilty of converting a slave were to be condemned to capital punishment and confiscation of property. This law represented a milder approach to the problem than that traditionally adopted by the authorities. Absolute prohibition of acquisition and possession of Christian slaves by Jews had been in force, theoretically, since the reign of Constantine the Great, but our law recognized the legality of one type of such acquisition and possession. Theodosius II was probably influenced, in this matter, by the similarly limited permission granted by Honorius on 6 No­vember 415 (see above, No. 42), in response, probably, to a re­quest presented by representatives of Jewish communities in the West. He was also undoubtedly influenced by the difficulties in­volved in implementing the absolute prohibition; there is enough evidence to prove that Jews kept Christian slaves throughout the fourth century, despite all interdictions, and the case of Gamaliel VI in 415 seems to have been unexceptional.

The summary of this law in the Antiqua Summaria is erroneous in its first part, which repeated the absolute prohibition on posses­sion of Christian slaves by Jews; its second part, however, which transmitted an interdiction on acquisition by Jews of such slaves in dowry, derived undoubtedly from the orignal interdiction on their acquiring such slaves through gift.

Justinian’s editors maintained the original interdiction on the acquisition of Christian slaves in dowry, and expanded it to cover all types of acquisition.

Codex Theodosianus, 16:9:4, ed. Mommsen, pp. 896-897

IDEM AA.· MONAXIO* P(RAEFECTO) P(RAETORI)O ludaeus servum Christianum nec conparare debebit nec largitatis titulo consequi. Qui non hoc observaverit, dominio sibi petulanter adquisito careat, ipso servo, si quod fuerit gestum sua sponte duxerit publican- 5 dum, pro praemio libertate donando. Verum ceteros, quos rectae religionis participes constitutos in suo censu nefanda superstitio iam videtur esse sortita vel deinceps hereditatis* seu fideicommissi* nomine fuerit consecuta, sub hac lege possideat, ut eos nec invitos nec volentes caeno propriae sectae confundat, ita ut, si haec forma fuerit violata, io sceleris tanti auctores capitali poena proscribtione comitante plectantur.

DAT. IIII ID. APRIL. CONSTANTIN(O)P(OLI) HONOR(IO) A. XI ET CON­STANTIO V. 0. II CONSS.*

THE SAME TWO AUGUSTI¹ TO MONAXIUS,² PRAEFECTUS PRAETORIO

A Jew should not buy³ a Christian slave nor acquire him in a gift. If anyone should not observe this, he shall forfeit the ownership impu­dently acquired, while the slave shall be granted liberty as reward, if he should willingly cause the deed to be publicly known. The others, however, who partake in the right religion and are held under the rule of the nefarious superstition, which appears to have acquired them in the past, or should acquire them hereafter, in inheritance⁴ or in fideicommissum,⁵ shall be possessed by it on this condition, that it shall not corrupt them with the filth of its proper sect, to their will or against their will. If this rule should be violated, therefore, the instigators of such a crime shall be punished by capital punish­ment and in addition by confiscation.

GIVEN ON THE FOURTH DAY BEFORE THE IDES OF APRIL AT CONSTANTI­NOPLE, IN THE CONSULATE OF HONORIUS AUGUSTUS FOR THE ELEVENTH TIME AND CONSTANTIUS THE MOST RENOWNED FOR THE SECOND TIME.⁶

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 5 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.

THE EMPEROR CONSTANTIUS AUGUSTUS TO EVAGRIUS

A Jew should not buy a Christian slave nor acquire him in gift or under any other title. For if anyone of the Jews shall have a Chris­tian slave, or shall consider it right for whatever reason to possess a slave of another sect or nation, and he shall circumcise him, he shall not only be punished by the loss of the slave, but he shall also suffer capital punishment, while that same⁷ slave shall be given liberty as reward.

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

NOTES

1.      Honorius and Theodosius II.

2.      Flavius Monaxius was Prefect of the City of Constantinople in the years 408-409, Praefectus Praetorio of the East in 414 and again in 416-420. See W. Ensslin, PW, 1:31, 1933, s.v. Cols. 75-76; Haehling, p. 83; PLRE, II, s.v.

3.      Buy: on the difference between ‘comparare’ and ‘consequi’ see No.

4.      “Inheritance” refers to inheriting all the deceased’s property under the ‘ius civile’, whether under a valid will or without a will.

5.      The term ‘fideicommissum’ designated a form of inheritance in which the inheritor directed the heir to transfer some of the inheritance, or all of it, to a third party. See R. Leonhard, PW, 1:12, 1909, s.v. Fideicommissum, Cols. 2272-2275.

6.       Given... time: 10 April 417.

7.      Same: the addition of ‘ipso’ is typical of the editing of the laws received from the 16th Book of Codex Theodosianus by Justinian’s editors. See Honord, p. 221.

BIBLIOGRAPHY

Godefroy, VI: 1, p. 273; Juster, II, pp. 74, 75 n. 3; Seeck, Regesten, p. 335; Seaver, p. 73; Demougeot, “Honorius,” p. 278; Langenfeld, pp. 94-97.