The ecclesiastical edicts of the Theodosian code

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William Kenne

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THE ECCLESIASTICAL EDICTS OF THE

THEODOSIAN CODE

[* OCT 7 1922

STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW

EDITED BY THE FACULTY OF POLITICAL SCIENCE OF
COLUMBIA UNIVERSITY

Volume XXIV]

[Number 2

THE ECCLESIASTICAL EDICTS

THEODOSIAN CODE

.^

WILLIAM K. BOYD, Ph.D.

Sometime Fellow in European History in Columbia Univeriity,
New York City

'^zm Work
THE COLUMBIA UNIVERSITY PRESS

THE MACMILLAN COMPANY, AGENTS
London : P. S. King & Son

1905

Copyright, 1905,

BY
WILLIAM K. BOYD

TABLE OF CONTENTS

lASE

Preface 7

Introduction 9

CHAPTER I

The Conflict between Paganism and Christianity, as it
Appears in the Code 15

CHAPTER II
Heresy and Ecclesiastical Institutions 33

CHAPTER III
Heresy and Ecclesiastical Institutions (Continued) .... 54

CHAPTER IV

The Relation of the Church to the Social Organization of
THE Empire 71

CHAPTER V
The Episcopal Courts 87

CHAPTER VI

The Influence of the Ecclesiastical Edicts of the Theo-
dosian Code upon Early Medieval Jurisprudence .... 103

Bibliography 121

115] 5

PREFACE

This monograph has been prepared as a dissertation to
complete the requirements for the degree of Doctor of
Philosophy in Columbia University. The subject was sug-
gested by a discussion in the seminar of Professor James H.
Robinson and by the lectures of Professor Munroe Smith on
the History of European Law. To these gentlemen I am
indebted for criticisms of style, and to Professor Munro
Smith for invaluable aid in the interpretation of certain
texts. I am also under obligation to Mr. F. W. Erb, of the
Columbia University Library, for courtesies in the loan of
books. William K. Boyd.

Dartmouth College, Sept. 27, 1905.

117] 7

ERRATA

Pp. 10, 1. 12, and p. 12, I. 5, read responsa for responsac.

P. II, last paragraph, after " so-called Law of Citations," insert "pub-
lished by Valentinian III."

P. 22, 1. 26, read " without the walls " for " without walls.''

P. 23, 1. 13, read "restored" for "destroyed."

P. 49. 1. 10, read " Arianism " for " paganism."

P. 52, 1. 9, omit the words " cast out and banished " and the re-
mainder of the paragraph. The correct reading is : " We would order
them to be cast out and banished if it were not a greater penalty for
them to remain among men, deprived of the privileges of men. How-
ever, they can never regain their former condition ; the shame of their
evil actions cannot be obliterated by penance nor by show of reparation,
however elaborate, since insincere and invented excuses are not able to
protect those who pollute the faith which they have vowed to God and,
betraying the divine mystery, follow after profane things. While there
may be aid for the lapsed and erring ones, for the lost, namely, those
who profane sacred baptism, no remedy of penance which is beneficial
to other criminals, may suffice."

P. 76, between lines 3 and 4, insert " who had become clerks, to re-
sume their obligations to the state unless they had entered."

P. 7y, n. I, read " vocantur " for " vacantur."

INTRODUCTION

The blending- of civil and ecclesiastical authority in the
later Roman Empire is a subject of vast and permanent
historic interest. In it the philosophical historian has seen
only one of the many evidences of a decline in classical
civilization ; while the moralist has found it to be the source
of all the humane and beneficent influences of the age.^

There is one phase of this union of secular and religious
forces, the position of the church in the later Roman law,
which has never received comprehensive or judicious treat-
ment. For this neglect the large number of edicts on
ecclesiastical subjects, their confused style and frequent ob-
scurity, as well as the general unproductiveness during the
fourth and fifth centuries of those influences that create law,
are responsible. But the subject is an important one, and
when some of the difficulties are mastered it has an at-
traction of its own. For legislation, as no other histori-
cal source, reveals the complexity of good and evil in so-
ciety, and the ecclesiastical edicts of Constantine and his
successors show that the church, while a philanthropic in-
stitution, was also a disintegrating factor in Roman civili-
zation. Moreover the imperial legislation discloses the
origin of those political and social privileges that character-
ized the church in the middle ages, some of which survive
in modern life. The motive underlying the present mono-
graph has been the desire to reach some appreciation of the

^ Reference is here made to Gibbon, Decline and Fall of the Roman
Empire, and Schmidt, Social Aspects of Christianity.

119] 9

lO EDICTS OF THE THEODOSIAN CODE [120

relationship between church and state in the fourth and fifth
centuries, as revealed in the laws of the emperors, and to
estimate the influence of that relationship in shaping condi-
tions in mediaeval Europe,

The source for our knowledge of the subject is the Theo-
dosian code. Since it was a product of the conditions
which characterized the jurisprudence and culture of the
later Empire, those conditions demand some preliminary
examination.

The fourth century marks an epoch in the history of Ro-
man jurisprudence. The principal influence in the making
of law in the Republic had been the responsae of the jurists,
given in reply to legal questions presented by public officials.
These had been given the sanction of the government
through the ius respondendi, or right of making binding
decisions, conferred upon favored jurists by Augustus. The
existing law courts were also brought under the imperial
authority, and, toward the close of the third century, the
legislation of the emperors began to supplant the decisions
of the jurists as the supreme source of justice. Law-mak-
ing was thus governmentalized ; and the administration of
justice was centered in that vast bureaucracy which tended
to dominate every phase of public life.

The beneficent results of this movement were that the
ancient law of the city {ins civile) was modified, and that
the antithesis between ius civile and the law developed by
the administrative officials {iiis honorarium) was removed.
Consequently the law and custom of Rome and the pro-
vinces were blended into one harmonious unity. On the
other hand, the centralization of justice resulted in an un-
fortunate increase of legislation. Anything and everything
from the fiscus, the court system and social problems, to the
obscure sect of the Tascodrogitse and the minor issues of
ecclesiastical life were subjects of imperial edicts and con-

121 ] INTRODUCTION II

stitutions. Consequently there was a distinct decline in the
knowledge and study of jurisprudence. The laws were fre-
quently drafted by court politicians and rhetoricians. Their
language bears evidence of their authorship, for the Latin
of the Theodosian code has not the simplicity and strength
of the juristic literature of the second and third centuries,
while the formation of a vast administrative system neces-
sarily caused the introduction of new words into Roman
legal vocabulary.

This confused condition of the law, as well as a general
decline in letters, led Theodosius the Younger (408-450)
to undertake a revival of Roman culture. To this end
he established a university at Constantinople, whose tone,
positively Christian, should counteract the influence of a
similar institution in Athens, which was pagan in spirit.
Two of the chairs in the new university were devoted to
jurisprudence. Then, astonished " that so few are found
who are endowed with a full knowledge of the Civil Law,"
impressed with the " enormous multitude of books, the
diverse modes of procedure and the difficulty of legal
cases and the huge mass of imperial constitutions which,
hidden as it were under a veil of gross mist and darkness,
preclude men's intellects from gaining a knowledge of
them," Theodosius decided to meet " a real need of the
age " by attempting two important reforms.^

The first of these was outlined in the so-called Law of
Citations. It designated the jurists Papinian, Paul, Gaius,
Ulpian and Modestinus as legal authorities, confirmed
their writings as sources of law, and ordered that, in points
of conflict between them, the opinion of the majority should
be decisive; if there were an equal division of opinion,

1 De Thcodosiani Codicis Auctoritate, p. 90 of Haenel's edition of the
Theodosian code.

12 EDICTS OF THE THEODOSIAN CODE [122

Papinian should be followed, and, in cases in which these
writers made no comment, the judge might form an in-
dependent decision. The second reform was the codifica-
tion of imperial constitutions since Constantino, " so that
men may no longer have to await formidable responsae from
expert lawyers as from an inner shrine." ^

This work was entrusted to two commissions. The first,
of the year 429, was composed of eight noblemen and one
jurist; the second, which completed the work, was composed
of sixteen members and was appointed in 435. Three years
later the result of their labors was published in the east by
Theodosius and in the west by Valentinian III. The code
is an historical one, its model being the Gregorian and
Hermogenian codes — private collections of the third cen-
tury. This explains the excessive number of edicts, the
confusion and conflict in this " short compendium." It
was the hope of Theodosius to issue another code for more
practical use, a summary of the law " which would not ad-
mit of any error or ambiguity and which would show to all
what should be followed and what could be avoided " ; ^
but this purpose he did not realize.^

1 De Theodosiani Codicis Auctoritate.

2 Codex Theodosianus, bk. i, tit. i, art. 5. (In the following pages
this code will be referred to as C. Th.)

3 A word regarding the literary history of the code. An incomplete
embodiment of its legislation was preserved in the Lex Romana Visi-
gothorum or Breviary of Alaric, a Visigothic compilation of the sixth
century, which was the principal source of Roman law in southern
Europe prior to the twelfth century. The earliest modern editions of
the Theodosian code were based upon the lex romana. Gradually
other fragmentary manuscripts of the code were discovered and these,
with the lex romana, formed material for textual criticism. Cujacius,
the French jurist of the sixteenth century, did more than any other of
the earlier editors for the formation of a comparative, critical text.
The greatest deficiencies were in the first five books. In the early nine-
teenth century Peyron and Clossius discovered new manuscripts which

123] INTRODUCTION 1 3

The character and environment of Theodosius, in addi-
tion to the forces just reviewed, influenced the selection of
the ecclesiastical edicts to be preserved in the code, in all
one hundred and forty in number/ By nature and educa-
tion the emperor was as devout as the ascetic ideals of the
age could demand. He made " his palace little different
from a monastery, for he with his sisters rose in the morn-
ing and recited responsive hymns in praise of the Deity."
He is said to have learned the Holy Scriptures by heart
and he would often discourse with the bishops on scriptural
subjects as if he had been an ordained priest of long stand-
ing.^ Consequently the legislation of the Arian emperors
in regard to heresy was not included in the code, while the
police edicts touching heresy, as well as the more important
legislation of those who professed the Nicene faith, were
preserved. The edict of Honorius which provided against
imperial intervention in episcopal elections was not incor-
porated, for it was not in keeping with the custom of the
east; the edict of Gratian dealing with the authority of the
Bishop of Rome over other churches was likewise omitted.

Clerical authorship is evident in this ecclesiastical legis-

corrected many of these defects, and the way was thus opened for the
editions of Haenel {Codex Theudosianus, 1842, vol. ii of his Corpus
Juris ante-Justiniani) and of Vesme (Corpus Juris Romani, pars i, torn,
i. 1839). Theodore Mommsen left uncompleted a new edition for a
Collectio librorum juris ante-Justiniani in usum scholarium, which has
been published since his death in 1903. The ablest commentator on the
legislation of the code was Godefroy, a jurist of the seventeenth cen-
tury. His edition of the code, to which he devoted thirty years, is one
of the monuments of legal scholarship {Codex Theodosianus, Lyons,
1665). It is indispensable to any historical or comparative study of the
code. In this study I have followed the text of Haenel and the criti-
cisms of Godefroy, since the text of Mommsen did not come to hand
until after the work was finished.

1 A few are repeated in different books and titles of the code.

2 Socrates, Historia Ecclesiastica, vii, 22.

14 EDICTS OF THE THEODOSIAN CODE [124

lation, especially from the reign of Gratian. The ordina-
tion of bishops, the age of deaconesses, the tonsure, celibacy,
as well as the weightier problems of episcopal jurisdiction,
heresy and apostasy, the immunity of the clergy from taxa-
tion, are among the subjects treated. In the language we
find such ancient words as saeculi, antisHs, sacrosancta con-
verted to an ecclesiastical usage and the expressions lumen
de lumine, Deus de Deo, nefariae praevaricationis altaria,
and sanctissimo catholicae venerahili concilio, used in an
ecclesiastical sense — ample evidence that here the clergy be-
gan that participation in civil legislation which characterized
European life for so many centuries.

CHAPTER I

The Conflict between Paganism and Christianity,
AS IT Appears in the Code

An introduction to the ecclesiastical legislation of the
Roman Empire, suggestive of the vast influence which the
church acquired in public affairs, is to be found in the at-
titude of the Christian emperors toward the ancient na-
tional religious system, popularly known as paganism. The
relation of this system to the Roman government had been
primarily political. Since the dawn of Roman history its
representatives had received political privileges and exemp-
tions from economic obligations to the state, while in re-
turn religion gave a moral support to political institutions.
The new career of the church that began with Constantine
wrought a vast change in this aspect of Roman civilization.
The alliance of paganism and the Empire was dissolved; in
its place there developed a union of the Christian church and
the state. Yet the ancient religious institutions were so
intimately associated with national tradition and custom
that the transition from the old order to the new was a
gradual one, and in the legislation which discloses it there
are three distinct periods.

The first of these includes the laws of Constantine and
his sons, which reveal all the characteristics of the religious
problem. Constantine, by conferring the rights of a cor-
poration on the church, by exempting the clergy from the
economic burdens of citizenship and by introducing the epis-
copal court into the judicial system, made himself the
125] 15

1 6 EDICTS OF THE THEODOSIAN CODE [126

subject of praise and reverence in ecclesiastical tradition.
But he never withdrew the support which the state had
always given to the established religious institutions, and
the pagan mould of Roman society was not decisively
changed. The exact nature of his religious policy has been
the subject of more than three hundred books and mono-
graphs since the sixteenth century.^ Was he actuated
by political motives, the desire to balance the Christian
and the pagan forces in the Empire, or did political con-
ditions prevent him from making an open attack on the in-
stitutions of paganism in behalf of Christianity? Was he
at heart a pagan, playing a political game with the church,
or was he a Christian, forced by circumstances to tolerate
and endure moral and religious conditions with which he
had no sympathy?

For the answer to these inquiries there are four classes
of evidence; the opinions of literary contemporaries, the
testimony of inscriptions, Constantine's general conduct and
attitude toward religious institutions, to be gathered from
the existing accounts of his life, and lastly his legislation.

As to the first of these, the Christian writers are unan-
imous in their belief in Constantine's piety and devotion
to the church, while the pagan authors never accuse him of
hypocrisy. The principal literary source relied upon by
those who have doubted the sincerity of his religious pro-
fessions is Zosimus, the embittered pagan historian of the
fifth century.^ He tells the story of Constantine without
reference to Christianity, repeats the slanders upon his
character made by Julian, and describes him as a man
devoid of humane and religious instincts. But the reliabil-

1 For bibliography of the literature relating to Constantine, see
McGiffert's edition of Eusebius, in Schaff's Select Library of Nicene
and Post-Nicene Fathers of the Christian Church, series 2, vol. i (1890).

2 Historia Romano.

127] '^HE CONFLICT OF RELIGIONS AND THE CODE ly

ity of Zosimiis is impeached by the contradiction of other
sources. His account of the erection of temples in Constan-
tinople by the emperor is not only contrary to Eusebius, but
there is evidence that the edifices mentioned were older than
the new city.^ The death of Licinius through the treachery
of Constantine is likewise discredited by the probability that
his execution was demanded by the army; while the story
of Constantine's murder of his wife Fausta is false, since
she was living as late as 340, three years after the death of
her husband.^ The general inaccuracy of Zosimus and the
anti-Christian tone of his work therefore prevent any re-
liance upon his narrative unless confirmed by other author-
ities.

Certain inscriptions have been frequently cited in evidence
of Constantine's attachment to paganism, but they are far
from conclusive. The petition of the citizens of Hispellum,
a town in Umbria, for permission to institute games and a
temple in honor of the Flavian gens was indeed granted
by Constantine, but with the command that " no building
dedicated to our name shall be polluted by the contagion of
any superstition;" and no imperial cult in his memory was
established until after his death. ^ The claim that the cross
was not a symbol of Christianity before the fourth cen-
tury, and that therefore the labarum did not indicate Con-
stantine's conversion from paganism, can no longer be sup-
ported. Moreover, the introduction of coins with Christian
symbols when the conservative influence of commerce would
oppose any alteration in the customary standards of trade,

1 Victor Schultze, in Zeilschrift fiir Kirciiengcschichte, vol. vii, p. 352.
He also shows that it is doubtful if pagan ceremonies were used at the
foundation of Constantinople.

2 Schultze, ibid., vol. viii, p. 534.
* Ibid., vol. vii, pp. 343, 360.

l8 EDICTS OF THE THEODOSIAN CODE [128

suggests more than a political motive in the toleration of
the church/

If the common criticisms of Constantine's religious char-
acter and policy are viewed in the light of the Christian
culture of his age, many of their inconsistencies are ex-
plained. He lived at a time when many pagan and Chris-
tian customs coalesced. If sensuous celebrations in honor
of the gods were perpetuated as feasts commemorative of
the martyrs, why should the apotheosis of Constantine ex-
cite surprise?^ His baptism, deferred until his last days,
was in accord with the Christian custom derived from a be-
lief that that sacrament cleansed its recipient from the guilt
of all previous sins. His friendship and association with
prominent pagans is no more an impeachment of the sin-
cerity of his religious profession than the similar conduct
of Theodosius, the patron of Libanius and Symmachus,
men who represented the higher aspirations of Roman re-
ligion in its age of decadence. His acceptance of the title
of Pontifex Maximus involved no participation in the cere-
monial functions of paganism — those were performed by
the promagister — it was but a recognition of his control
over the institutions of paganism which was necessary if
their connection with Roman life was ever to be dissolved.

If the conditions of Christian custom and culture are
reflected in Constantine's attitude toward the religious prob-
lem, how^ much more important must have been the fact that
a majority of his subjects were non-Christian in their sym-

1 Schultze, vol. vii, p. 344.

2 Ibid., vol. vii, p. 367. The value of these articles of Schultze is
that they show how readily certain writers like Burckhardt {Die Zeit
des Konstantin des Grossen) and Brieger (Konstantin der Grosse als
Religion-Politiker) have accepted as evidence for the support of the
thesis that Constantine's religious policy was dictated by political
motives, statements that they have not subjected to the test of thorough
criticism.

129] ^^^ CONFLICT OF RELIGIONS AND THE CODE 19

pathies? Under such conditions any attack by him upon
the prerogatives of paganism in the interest of the church
required unusual tact. The situation is clearly revealed in
his legislation upon the pagan cults, which falls into two
distinct periods, separated by the death of Licinius.

The problems of the first period seem to have been mainly
political. In the east Licinus appealed to the religious pre-
judices of his non-Christian subjects — even resorted to per-
secution of the church — in preparation for the inevitable con-
flict with Constantine. It was therefore necessary for Con-
stantine to secure control of the pagan cults in the west in
order to prevent any political use of them by the Licinian
party. To this end the practice of secret divination and
the consultation of the haruspices, except through the regu-
lar ceremonies of the temples, were forbidden.^ The use
of magic arts against life or chastity was punished by death;
the interpretations of public calamities by the haruspices
were required to be transmitted to the emperor; and the
compulsive observance of, or participation in, pagan rites by
Christians was forbidden.^ As his panegyrist declares that
Constantine fought Maxentius " against the council of men,
against the advice of the haruspices," this legislation does
not signify a belief in the divinatory arts, rather an effort
to forestall any attempt to make use of divination in any
political conspiracy against the fortunes of the Flavian
family.

The legislation of the second period, which extends from
the fall of Licinius, is inspired by something more than a
political motive. Its first statute was an edict directed to

1 C. Th., ix, 16, I, 2 (a. d. 319). Penalty, death for the divinator
and the confiscation of property and exile of the one patronizing him.

- C. Th., ix, 16, 3 (Magic) ; C. Th., xvi, 10, i. The occasion of the
second edict was the injury of the Flavian amphitheatre by lightning
in 321.

20 EDICTS OF THE THEODOSIAN CODE [130

Palestine, recalling the Christians who had been exiled for
their faith, restoring their confiscated property, and reliev-
ing them from service in the courts/ A general edict was
addressed to the provinces which recounted the suffering
of the Christians, the vengeance of God on the persecu-
tors, the divine guidance in the personal fortunes of the
emperor, and confirmed the policy of toleration established
by Galerius and Licinius in the following words :

Let those therefore who still delight in error be made welcome
to the same degree of peace and tranquillity which they have
who believe. For it may be that this restoration of equal
privilege to all will prevail to lead them into the strait path.
With regard to those who hold themselves aloof from us, let
them have if they please, their temples of lies ; we have the
glorious edifice of Thy truth, which Thou hast given us, our
native home.-

This was really a censure of paganism under the guise of
an avowal of tolerance. It was followed by the appoint-
ment of Christian governors in the east and the renewal
of the edicts against divination and domestic sacrifice,
which Licinius had not enforced.^ A more direct attack

1 Euseb., Vita Const., ii, 34-42.

2 The authenticity of this edict has been questioned by Schultze (Ztsch.
fur K. G., vol. xiv) and by Crivellucci (Delia fedc storiadi Etiscbi nella
vita di Constantino). But Seeck has ably defended it and criticized the
objections to it {Ztsch. fUr K. G., vol. xviii). The chief criticism offered
is the blending of the rhetorical and ecclesiastical language. This indi-
cates that it was not the work of Constantine but of several authors.
But similar objections might be made to other edicts which are generally
accepted as expressing the wishes of some emperor or king. This edict
is also the first official declaration of a policy of religious toleration by
Constantine. The so-called Edict of Milan was the work of Licinius
and was directed to a part of the empire only. (Seeck in Ztsch. fur
K. G., vol. xii, p. 381). The first edict of toleration was by Galerius
in 311.

3 Euseb., Vita, ii, 44, 45.

131] THE CONFLICT OF RELIGIONS AND THE CODE 2 1

on the ancient religious system was then instituted by a
general prohibition of sacrifices, public as well as private,
and of the rebuilding of fallen temples/

After these prohibitions of divination, of sacrifice and of
the repair of temples, nothing remained to paganism but its
legal privileges. As the cults and the religious sentiment
of Rome were associated with the amusements, games, fes-
tivals and other phases of popular life, the overthrow of
these privileges would have provoked serious protest. More-
over, paganism had still a strong hold on the official and
administrative classes, and the legislation against it could
be enforced only in those provinces where it was approved
by public opinion and imperial officials. These facts ex-
plain Constantine's association with prominent men who
were devoted to the ancient religious system and his con-
firmation of the legal rights of paganism. In the light of
these conditions, the words of Zosimus that the emperor
" indeed used the ancient worship of his country, though not
so much out of honor or veneration as of necessity," have
an interpretation not implied by their context. Constan-
tine was more than a patron of Christianity, for with
him began that legislation by which pagan rites were de-
prived of their position in Roman civilization, and by which
the mould of antique life was replaced by the Christian
church.

Tlie policy of Constantine was continued by his sons.
While nothing is known of the attitude of Constantine TI
toward the religious problem, Constans seems to have con-
curred in the policy of his elder brother, Constantius. In
341 that emperor published an edict which prohibited sacri-
fices, and five years later he ordered the temples to be closed,
that " the possibility of sin might be taken from the lost." -

1 C. Th., xvi, 10, 2 ; xv, i, 3. Cf. Euseb., Vita, iv, 25.

- C. Th., xvi, 10, 2, 4.

22 EDICTS OF THE THEODOSIAN CODE [132

Soon after, a far more radical insult to religious traditions
was offered by Constans. In the senate house stood the
altar of Victory, the statue of a woman standing on a
globe, with arms extended and a wreath of laurel on her
head. Before this altar an offering of wine and incense
was made as a prelude to all senatorial deliberations. This
symbol of Rome's majesty and grandeur was removed
from its place of honor by an imperial order. The indignity
became a source of political revolt in the military rebellion
led by Magnentius, nominally a Christian, and supported by
the discontented pagans in the west, which cost Constans his
life in 350.

Constantius, after suppressing the rebellion, emphasized
its religious character by interdicting the " nocturnal sacri-
fices " which Magnentius had tolerated, and in later legis-
lation he threatened with death those who participated in
sacrifices, consulted the haruspices, augurs, soothsayers or
the magic arts.^

Although confiscated temples were often transformed into
churches, and sometimes, as at Alexandria, the public officials
co-operated with ecclesiastical enthusiasts in the destruc-
tion of the memorials of heathenism, these laws restricting
paganism were not universally or continuously executed.^
The association of paganism with Roman life remained un-
broken. Constans excepted from the edict closing the
temples such as were " without walls," and connected with
the games and amusements.^ While Constantius distributed
some of the property of the proscribed cults as gifts to his
friends, he entrusted the execution of the laws against the
violation of sepulchres to the pagan priesthood. In 356, the

1 C. Th., xvi, 10, 5, 6; ix, 16, 4, 5, 6 (a. d. 357-358).

2 Sozomenus, iii, 17; C. Th., x, i, 8. Sozomenus, iv, 10, is authority
for a special edict against paganism at Alexandria.

3 C. Th., xvi, 10, 3.

133] THE CONFLICT OF RELIGIONS AND THE CODE 23

year of his last prohibition of sacrifices, he expressed ad-
miration for the temples at Rome and confirmed the legal
privileges of the vestals/ The enforcement of these edicts
against paganism therefore must have been occasional, de-
pending on the temporary passion which inspired them and
the public sentiment in the various provinces. In spite of
their severity Symmachus could say that, although Con-
stantius followed another religion he conserved the ancient
faith. -

The religious legislation of Constantine and his sons was
rescinded by Julian. The privileges and immunities
which had been conferred on the church and clergy were
recalled ; the pagan temples were destroyed and the services,
which had been neglected in the reigns of his predecessors,
were re-established. Jovian, the successor of Julian, was a
Christian and restored to the church the privileges and some
of the property it had lost; but in his short reign of eight
months he did not have time to develop a distinct religious
policy.^ Themistius, the pagan rhetorician, praises him for
the decision that

what pertains to religion and the cult of the divine will should
be according to the judgment of the individual, thus imitat-
ing the Deity, who placed in all men a natural appetite for re-
ligion, yet desired that the nature and method of propitiating
the divine will should be determined by the preference and
free choice of each personality.*

This policy of toleration was continued by Valentinian I

^ C. Th., ix, 17, 2; Symmachus, Ep., x, 54; C. Th., xvi, 10, 6. In
358 paganism was also tolerated in an edict which permitted a public
assembly of the "priests of the Province of Africa."

2 Symmachus, Ep., x, 3.

8 Soz., vi, 4; Theodoretus, Historia Ecclesiastica, iv, 4.

•* Oratio de Religione.

24 EDICTS OF THE THEODOSIAN CODE [134

and Valens/ The privilege of teaching which Juhan had
withdrawn from the Christian scholars was restored, and
an ecclesiastical veneer was given public life by forbidding
judicial processes against Christians to^ be heard on Sunday,
granting amnesty to petty criminals at Easter and excusing
members of the theatrical profession who had received bap-
tism from continuing their career.^ On the other hand,
the legal rights of the national religious system were con-
firmed, and official impartiality toward the litigation over
temples that had fallen into the hands of Christians in the
reign of Constantine and his sons and had later been re-
stored to the pagan cults by Julian, was preserved by con-
fiscating them to the fiscus.^ To Ammianus Marcellinus,
the pagan historian of this time, Valentinian was " especi-
ally remarkable for his moderation " in keeping a " middle
course between the different sects of religion," for abstain-
ing from the promulgation of " any threatening edicts to
bow down the necks of his subjects to the form of worship
to which he himself was inclined," and leaving religious
parties " just as he found them." *

The official and legal relations existing between paganism
and the government were first definitely attacked and abro-
gated by Gratian. A man of admirable disposition, " elo-
quent, war-like, and merciful, rivalling the most admirable
of his predecessors, even while the down of youth was on

1 Valentinian issued an edict of toleration in 371 (C. Th., ix, 16, 9).

~ C. Th., xiii, 3, 6; viii, 8, i; ix, 28, 3; xv, 7, i. Valentinian
was the first of the emptrors to use the word paganus (countryman,
rustic, soldier) to designate those who remained faithful to the non-
Qiristian cults (C. Th., xvi, 2, 18). It was so used by the ecclesiastics
because the stronghold of the ancient Roman religion was in the rural
communities.

3 C. Th., xii, I, 60.

•* Historia Annorum, xxx, 9, 5. Magic and the occult arts were sup-
pressed by Valentinian but not the haruspices. C. Th., ix, 16, 9.

135] ^^^^ CONFLICT OF RELIGIONS AND THE CODE 25

his cheeks," he was more susceptible to ecclesiastical influ-
ences than any of the preceding- emperors/ Previous em-
perors had followed the council of church officials in eccle-
siastical matters, but Gratian was the first to seek their ad-
vice in secular affairs. An incident of his coronation is a
prelude to his religious policy. It was the custom for the
pontifices to place upon the new sovereign priestly robes and
to hail him as Pontifex Maximus; but this part of the cere-
mony Gratian rejected, declaring that it did not become a
Christian prince."

Three years later, after the defeat and death of Valens at
Adrianople, Gratian chose Theodosius, a Spanish general,
as his associate in the administration of the empire, and
left Sirmium for Italy. At Milan he met Ambrose, by
far the ablest ecclesiastical politician of the west. There
had been some correspondence between them. In a letter
full of religious feeling Gratian had requested Ambrose
not to depart from Milan before his arrival, for he wished
to speak with him and to open his heart to him " for the
entrance of divine light." In reply Ambrose sent his tract
On the Faith.^ The first result of a friendship so cemented
was a change in the emperor's attitude towards heresy from
one of toleration to persecution; the second, an attack on
the sentiment and institutions of the national religion.*
In 382 the Altar of Victory, which had, after its removal
by Constans, been restored to the senate house by Julian

1 Ammian. Mar., Hist. Ann., xxxi, 10, 18. For a similar character-
ization by a Christian author, cf. Rufinus, Hist. Eccles., ii, 13.

- Zosimus, iv, 36. This story has frequently been rejected, but
Schultze has answered the objections to it. Gesch. des Untcr gangs des
griechisch-romischcn Hcidcnthiims, p. 213, n. 2. Time, 375 or early in

3 The letter of Gratian precedes the epistles of Ambrose in the edition
of Migne's Patrologia Latina, vol. xvi, p. 913. Ibid., De Fide.
* For heresy, see following chapter.

26 EDICTS OF THE THEODOSIAN CODE [136

was again taken away by an imperial order. ^ The same
year the right to receive gifts and legacies was withdrawn
from the pontifical and vestal colleges, their endowments
were appropriated to the fiscus, and the privileges and ex-
emptions of the priesthood were also abolished. ^ The pagan
members of the senate appointed a committee to present
their protest against this violation of the traditional rights
of their faith. But the Christian faction sent a counter mes-
sage through Pope Damasus and Ambrose, with the result
that the pagan embassy did not obtain an audience with the
emperor. ^

These events were soon followed by the rebellion in
Britain and Gaul, led by Maximus, and the murder of
Gratian. The pagan party saw in his death divine ven-
geance for the desecration and sacrilege he had offered the
gods. Its representatives in the senate decided to petition
his younger brother and successor, Valentinian II, for the
restoration of the Altar of Victory as a step toward the
repeal of Gratian's legislation. Symmachus, Prefect of
Rome, was leader and spokesman of the committee. His
address, made in the presence of the emperor and the
senate is a noble plea for the religious system sO' long and
intimately associated with Roman life and institutions.

We ask peace for our native, indigenous gods. We culti-
vate the same soil, we are one in thought; we behold the
same stars, the same heaven, and the same world surrounds us.
Why should not each, according to his own prudence, seek
the truth? The Great Mystery can not be approached by one
road. The divine mind distributed various cults and guard-
ians in the cities; as various spirits in youths, so the fatal

1 Ambrose, Ep., xvii, 18; Symmachus, Ep., x, 3.

2 Symmachus, Ep., x, 3 ; Ambrose, Ep., xvii, 18 ; C. Th., xvi, 10, 20.

3 Ambrose, Ep., xvii, 9, 10.

137] THE CONFLICT OF RELIGIONS AND THE CODE 27

genii are divided among nations. Utility should decide what
the gods of man should be. Since all reason is in darkness,
what is better than that the recognition of the divinities
should be decided by the memory and example of fortun-
ate times. If great age gives authority to religion, such a
faith is to be preserved for all ages, and our fathers who
happily followed their fathers, are to be followed by us. I do
not plead merely the cause of Roman religion ; from these
recent crimes [the legislation of Gratian] have come all the
misfortunes of the Roman people. The law of our fathers
honored the vestal virgins and the ministers of the gods with
the necessities of life and just privileges. All of these are now
diverted to degenerate money changers. Following this came
the public famine and a blighted harvest deceived the hopes of
all the provinces. Hence are all the misfortunes of the earth.
Let us charge nothing to the stars. The year became one of
drought through sacrilege, for it was necessary that all things
denied to religion should perish.^

These words of Symmachus had a profound effect on the
Christian as well as the pagan members of his audience.
The imperial consistory, in which the Arians held the ma-
jority, was inclined toward a favorable reply. But Am-
brose, in an address full of sophistry, exhortation and in-
timidation, won the day. If the Romans were preserved
by the gods in the wars with Hannibal, why w^ere the host-
ages taken? All men serve the emperor, and he serves
God. But he who would be loyal to the true God must have
no indulgence for the gods that are demons. Idols must
be burned and profane ceremonies abolished. To restore
the Altar of Victory would be a persecution of Christianity
and the emperor w^ould thereby become an apostate. Am-
brose even made the threat that if the demands of the pagan

1 The best edition of the Relatio is that of Seeck in the Mon. Germ.
Hist. Aniiquiss. Auct., vi, p. 280. The translation here given is an
abridgment.

28 EDICTS OF THE THEODOSIAN CODE [138

party were granted, the clergy would cease to perform their
services. Finally, Valentinian's mind was directed to the
memory of his deceased father and brother whose piety and
loyalty to the church would be seriously offended by the
proposed restoration of the Altar of Victory.^

Four years later, in 388, Theodosius was called into
Italy to protect Valentinian and his court from the invasion
of Maximus.^ He remained in the west three years, sup-
pressing rebellion and reorganizing the imperial adminis-
tration. During this time he was in intimate relations with
Pope Siricius and Ambrose. In 390 the senate again sent
an embassy to Theodosius at Milan to ask for the restora-
tion of the Altar of Victory. The emperor hesitated ; even
the protest of i\mbrose was at first ineffective; but finally
the petition was refused.^ The following year Symmachus,
who had participated in the rebellion of Maximus and had
gained imperial favor through the intercession of Leontius
of the Novatian sect, made another plea for the restora-
tion of the Altar. The appeal was in vain; Symmachus
was exiled.* In the same season, probably after this event,
two edicts were issued, one for Rome, the other for the
east, which have been well named the requiem of paganism.
They forbade any one to pollute himself with sacrifices, to
slay an innocent victim, to enter temples, to approach shrines
or to do reverence to statues formed by mortal hands. ^ In
392 sacrifice was assimilated with the crime of lese-majesty,
tlie property of the guilty and places of sacrifice were con-

1 Ambrose, Ep., xvii.

2 The religious and political aspects of Maximus's revolt will be dis-
cussed in the following chapter.

3 There is some difference of opinion as to the date when the em-
bassy met Theodosius. I follow Rauschen, Jahrbiicher der christlichen
Kirche, p. 316. Amb., Ep., Ivii.

* Rauschen, ibid., p. 335. ^ C. Th., xvi, 10, 10, 11.

139] THE CONFLICT OF RELIGIONS AND THE CODE 29

fiscated, and the cults of the Lares and Penates were
prohibited. ^

When Theodosius returned to the east in 391 he left
Valentinian II a protector against tlie influence of the
courtiers in the person of Arbogastes, a Prankish general,
who was given the power to appoint all civil and mili-
tary ofificers. This authority he exercised in the interest
of the Germans and the pagan party,^ The pagan mem-
bers of the senate again petitioned for the restoration
of the Altar of Victory, but Valentinian declined to grant
the request.^ Then came a quarrel between Valentinian
and Arbogastes which resulted in the rebellion of Arbo-
gastes and the murder of Valentinian. The Prankish
leader placed Eugenius, a Roman noble and a Christian,
on the vacant throne. His religious policy was one of
toleration; but he needed the support of all parties and
sects in the approaching conflict with Theodosius. He
would not permit the restoration of the Altar of Victory,
but under the guise of gifts to his friends, he restored many
temples to their ancient cults.* Pagan ceremonies and pro-
cessions were revived at Rome and many Christians re-
lapsed to the religious faith they had formerly professed.

In 394 Theodosius returned to the west with an army, de-
feated the forces of Eugenius and Arbogastes at Aquilea,
and then visited Rome. He appeared before the senate
and begged its members " to relinquish their former errors
and to embrace the Christian faith, which promises absolu-
tion from all sins and impieties." When " not one in-
dividual could be persuaded," he abolished " the sacred
rights and ceremonies recently revived." Many converts
from paganism were now made by the church. Among

1 C. Th., xvi, 10, 12. 2 Rauschen, loc. cit., p. 360.

3 Ambrose, Ep., Ivii, 5. ■* Ibid., 6, 8.

30 EDICTS OF THE THEODOSIAN CODE [140

these were some of the prominent families of Rome, such
as " the venerable assembly of Catos, the luminaries of the
world, who stripped themselves of their pontifical garments,
cast off the skin of the old serpent and assumed the snowy
robes of baptismal innocence, and humbled the pride of the
consular fasces before the tombs of the martyrs." ^

A few months later Theodosius died. It is not necessary
to dwell on the importance of his reign in the history of the
church. His last thoughts were more for its welfare than
that of the empire. Ambrose well compared his zeal for
the suppression of paganism to that of Jacob and King
Josiah.^ His religious policy was continued by his sons.
Arcadius renewed the legislation of his father, abolished the
legal privileges of the priesthood in the east and sanctioned
the destruction of the temples.^ In the west, however,
Stilicho, who was entrusted with the regency during the
minority of Honorius, desired to moderate the temper of
the religious conflict. While sacrifices and " profane rites'*
were prohibited, the destruction of temples, statues and
ornaments of public buildings suggestive of paganism was
forbidden and the ancient games were protected.* But what-
ever hopes Stilicho cherished for religious toleration were
futile. He alienated the sympathies of the Christians by
his indifference toward their religious propaganda, by the
introduction of pagans into the imperial service, and the
reform of the episcopal courts. ° On the other hand his

1 Prudentius ; quoted by Gibbon. The authority for the visit of Theo-
dosius to Rome and his effort to convert the Senate is Zosimus, iv, 59;
V, 30. This is rejected by some modern writers as a confusion with a
visit to Rome after the rebellion of Maximus. Cf. Bury's Gibbon, voL
i, appendix x.

2 Ambrose, De Obitu Theod., 4, 35, 38.

3 C. Th., xvi, 10, 13, 14, 16. •* C. Th., xvi, 10, 15, 17, 18.
^ For episcopal court, see ch. v.

I^l] THE CONFLICT OF RELIGIONS AND THE CODE 31

wife, Serena, a zealous Christian, aroused the prejudice of
the pagan party. She was accused of taking ornaments
from the temple of the Great Mother, and this story was
probably responsible for the report that Stilicho had robbed
the Temple of Jupiter and burned the Sibylline books. ^
The instability of Stilicho's administration is well illustrated
by the invasion of Italy by Alaric in 404. The pagans saw
in the event the punishment of the gods for his failure
to champion their cause; the Christians explained it as the
result of a conspiracy of Stilicho and Alaric and attributed
the Roman success at Pollentia to supernatural intervention.
After the murder of Stilicho the ecclesiastical party was
again in the ascendant. The temples were confiscated and
deprived of their remaining income, while bishops, as well
as civil officers, were entrusted v/ith the execution of re-
ligious law."

Once more, however, the hopes of the pagan party re-
vived when Attalus, a barbarian, placed on " an imperial
throne with a purple robe and crown " by Alaric, addressed
the senate as " consul and pontifex " and gave prominent
pagans important offices of state. But the new regime was
temporary; Alaric was soon dissastified with Attalus and
deprived him of his crown, and with his fall the last hopes
of paganism as a political force in Italy vanished.^

1 Rauschen, loc. cit., p. 558.

2 Augustine, De Civitate Dei, v, 23 ; Orosius, Historiorum adversum
Paganos, vii, 38.

3 In Africa the conflict was prolonged, for there the sentiment in
favor of the ancient cults was especially strong. In 415 Honorius con-
fiscated to the fiscus "all places which the error of the fathers dedicated
to the service of the gods" in Africa, together with the religious corpora-
tions and their incomes, sanctioned the destruction of the statues in the
public buildings and deposed the pagan priests from office. C. Th., xvi,
10, 20. The legislation of Valentinian III on heresy and schismatics
includes pagans. This indicates that paganism was no longer a political
force and was not deemed worthy of much attention.

32 EDICTS OF THE THEODOSIAN CODE [142

In the east Theodosiiis renewed the legislation of his
father, abolished the legal privileges of the priesthood and
sanctioned the destruction of temples. Here the resist-
ance of paganism was far feebler than in the west, for
here the Roman state religion was not indigenous. The
decisive legislation was that of Theodosius the Younger in
416, during the regency of Pulcheria, which prohibited
the future employment of pagans in civil or military admin-
istration.^ This edict seems to have been effective, for
seven years later an edict which renewed former legislation
against the adherents of paganism contains the sentence:
"We believe that they [the pagans] are no more." ^ Sugges-
tive of the vast change wrought in the traditions of the em-
pire from Constantine to Theodosius the Younger is the last
edict of the code, which forbids sacrifices on penalty of death
and orders the destruction of temples, if any exist.^

^ C. Th., XV, 10, 21.
2 Ibid., xvi, 10, 22.
« Ibid., xvi, 10, 25.

CHAPTER II

Heresy and Ecclesiastical Institutions

The legislation which severed the alliance that, for ages,
had united the Roman government and the ancient pagan
religious system, has been noted. The change thus
wrought in classical traditions and culture is one unpre-
cedented in the religious history of antiquity. It was, how-
ever, only one phase of the ever-increasing influence of the
church, and its meaning cannot be fully realized without
considering a parallel series of edicts, namely, those which
treat of heresy and the Christian faith. In analyzing them,
the same periods are distinguishable as in the suppression of
paganism. Constantine established the precedent for im-
perial intervention in ecclesiastical affairs; Valentinian I
held aloof from the religious conflict; while Gratian and
Theodosius finally and decisively fixed the alliance of the
state with ecclesiastical creed and persecution.

As all efforts to suppress religious dissension in the first
two periods were made by emperors who were, to some de-
gree, patrons of Arianism, their edicts were not preserved
by the compilers of the Theodosian code, for they lived in
a century when the triumph of the opposing party which
pointed to Athanasius as its greatest champion, was com-
plete. The ecclesiastical historians and the controversial
writings are therefore the sole authority in forming an esti-
mate of the imperial attitude toward heresy before the reign
of Gratian.

143] 33

34 EDICTS OF THE THEODOSIAN CODE [144

Since Constantine desired that the church should con-
tribute to the social and moral strength of the empire, re-
ligious dissension was a menace to the public welfare, and
if necessary, secular authority might be exercised for its
suppression/ Indeed, peace and political unity had hardly
been established after the period of civil war which followed
the death of Diocletian, when the Donatist schism arose in
Africa and demanded some attention on the part of the
secular authorities.

" The schism of that time throve on the wrath of an an-
gry woman; ambition fostered, and avarice strengthened
it," says Optatus — a statement which, if true, indicates
that little good was to be expected from the persecution
endured by the African church under Diocletian; and un-
fortunately facts seem to confirm its truth. In 311 the
presbyter Csecilian was chosen bishop of Carthage. His
defeated rivals found sympathy in the person of Lucilla, a
wealthy matron whom Csecilian had offended by reproof
of her ardent devotion to the saints and martyrs. An issue
which would serv^e to develop opposition to Csecilian and
afford a means of questioning his election was soon found.
A few years previous (305), just after the close of the Dio-
cletian persecution, a synod had been held for the election
of a new bishop of Cirta. In that meeting Secundus, Pri-
mate of Numidia, accused some of the colleagues of betrayal
of trust (traditio), i. e., of having saved their lives by de-
livering to the state officials the scriptures and treasures of
the church. The election resulted in the choice of Silvanus,
one of those accused of this crime. Secundus and his fol-
lowers were now invited to Carthage by Lucilla and her
clerical friends. The validity of Caecilian's election was
questioned. Felix of Aptunga, who had assisted in his

1 Cf. C. Th., xvi, 2, 3, 6; also Eusebius, Vita Constantini, ii, 64.

145] "^^^^^ 35^

ordination, was accused of traditio, and the claim that
only primates could ordain primates was also advanced.
The discontented Carthaginian clergy and their imported
adherents therefore held a synod and elected Majorinus, a
friend of Lucilla, Bishop of Carthage/ Such was the
origin of the Donatist schism.- As time passed, the schis-
matics emphasized the theory that sacraments administered
by polluted hands are ineffective, and the Csecilianists, when
they saw that the Bishop of Rome favored their cause,
elaborated the idea of a federation of churches.^

The conditions which made Donatism a problem of state
were Constantine's restoration of church property that had
been confiscated by Diocletian, his gift of money to the
African church, and the exemption from public burdens
that he conferred on the clergy.* It was necessary for the
secular officials to decide which party should be the bene-
ficiary of these favors and when the decision was rendered
in the interest of the Csecilianists, the Donatists addressed
a protest to the civil authorities, who wrote to Rome for in-
structions. In reply to a letter from Anulinus, Proconsul
of Africa, Constantine, in 313, referred the decision of the
schism to the bishop of Rome.^ A synod was held and its

1 The Bishop of Carthage was Primate of the Proconsulate Provinca
of Africa.

- So-called from Donatus, a reader and successor of Majorinus, who
was a prominent leader of the schism.

3 Cf. Voelter, Dcr Ursprung dcs Donatismns, Freiburg, 1883.

* Euseb., Hist. Ecd., x, 5, 6, 7. The first of these documents restores
property " to the Catholic church alone." This may mean the church
in a general sense, not a distinction between orthodox and schismatical
churches. The second, granting money to the African church, shows
that Constantine had heard of the schism. The third limits the ex-
emption from public burdens to the Csecilianists.

s The letter of appeal to Constantine given by Optatus {De Schis-
mate Donatistarum, i, 22) is rejected by Seeck as a forgery (Ztsch. fiir
K. G., vol. X, p. 550). But that there was such an appeal is shown by

36 EDICTS OF THE THEODOSIAN CODE [146

verdict was against the Donatists. They had complained
that a complete examination of their cause had not been
made, and Constantine therefore ordered another hearing
at Aries in 314. In the early part of 315 Aelianus, a civil
officer, made an examination, by order of Constantine, of
the charges against Felix of Aptunga. Felix was cleared,
his successors and prominent Csecilianists were cited to
appear before Constantine. In the meantime the synod of
Aries had decided against the Donatists, who then made
another appeal to Constantine/ A final hearing was
granted in the presence of the emperor at Milan in 316,
and the verdict was once more against the Donatists. It
was ineffective, the schism continued, and this caused Con-
stantine to resort to legislation.

The outlines of the edict authorizing persecution have not
been preserved, but the sources indicate that Donatist
churches were confiscated and that some of the Donatist
leaders suffered death." The fanaticism of the schismatics,
however, did not abate and Constantine, seeing that his
efforts for peace in the church were ineffective, put an
end to the persecution, and during the remainder of his
reign the Donatists prospered, establishing churches in
Rome and Spain.^

the letter of Constantine to Miltiades, Bishop of Rome (Euseb., H. E.,
X, 5) and by the letter of Anulinus given by Augustine {Ep., 88).

1 Euseb., H. E., x, 5. Seeck makes the date of the synod 316 and
thinks Constantine was present. But this view is not confirmed by the
facts. The date is generally conceded to be 314.

2 There is a reference to the legislation of Constantine in C. Th., xvi,
6, 2, of Gratian. Cf. the Monumenta vetera ad Doiiatistarum His-
toriam pertinentia (Migne, Pat. Lat., vol. viii, p. 750) for the confisca-
tion of property and martyrs. A certain Sernio de Vexatione Dona-
tistarum temporihus Leontii et Ursatii, recounts the martyrdom of
Donatists at the hands of military authorities.

3 Augustine, Brev. Collat. cum Donatist., iii, 40; Optatus, ii, 4.

147] "^^^^^ 37

The same desire to preserve unity within the church,
rather than the protection of any creed or interpretation of
Qiristian doctrine, led Constantine to intercede for the
settlement of the Arian controversy. Soon after the de-
feat of Licinius in 324 this theological issue, which in-
volved the diverging intellectual traditions of the church,
seriously threatened the religious unity of Egypt and the
entire east. Believing " disunion in the church " a danger
to the state " more grievous than any kind of war," Con-
stantine sent Hosius of Cordova to Alexander and Arius to
exhort them to cease contending about " small and incon-
siderable questions," for as " philosophers may belong to
one system and take issue on certain points," yet " are re-
called to harmony of sentiment by the untiring power of
their common doctrines," why should not "the ministers of
the Supreme God " be " of one mind respecting the profes-
sion of the same religion ?" ^ When this appeal failed, the
emperor, on the advice of the bishops, convoked the gen-
eral synod of Nicea.^ He made no attempt to influence the
synod's solution of its problem. He desired that the ec-
clesiastical authorities should make an independent settle-
ment, but he participated in the debates, and, at the critical
moment, his influence was effective in the adoption of a
creed. He then confirmed the synod's work by threatening
with exile those who did not accept its standard of faith and,
at the conclusion of the council, he gave its decrees the force
of imperial laws.''

1 Euseb., Vita^ ii, 64.

2 Ibid., iii, 6. Rufinus, Historia Ecclesiastica, i, 5, for convocation
by advice of bishops.

3 Rufinus, H. E., i, 5; Euseb., Vita, iii, 17, 19; Socrates, Historia
Ecclesiastica, i, 9. The Novatians were excepted from the operation
of this legislation. C. Th., xvi, 5, 2. The story given by Socrates, that
Constantine called the Arians Porphyreans and ordered the works of

38 EDICTS OF THE THEODOSIAN CODE [148

The weakness of the Nicene creed lay in the fact that
it was in advance of the conservative doctrine of the east
and west. However, the west, which habitually looked to
authority for guidance, finally accepted the decision of the
" great and holy council," w^hile the tendency of the east
was to look behind the work of the council to those in-
herited doctrines which were the predecessors of Arianism.
Naturally the opinions in the east and the west at first shaped
the policy of their rulers. When Constantine took up his
permanent residence in the east, he was influenced by its at-
titude toward religious problems. Therefore, while he did
not repeal the legislation which confirmed the work of
Nicea, he permitted the return of the exiled Arians, counte-
nanced the deposition of Athanasian bishops on various
charges, and was finally baptized by an Arian bishop, Euse-
bius of Nicomedia.^ Both of the efforts he made to re-
store unity in the church failed. The creed of Nicea,
sanctioned by imperial decree, like the legislation against
the Donatists, only added increased confusion and com-
plication to the problem it was intended to solve.

The religious as well as the political conditions in the
three years succeeding the death of Constantine are obscure.
Aside from the statement of Athanasius that Constantine II
recalled the exiled bishops, nothing is known of that em-
peror's policy; while the attitude of Constantius and Con-
stans toward ecclesiastical problems seems to have been
shaped by the dominant factions east and west.^

Arius to be burned, is spurious. Seeck regards it as a forgery of
Athanasius (Ztsch. fur K. G., vol. xviii, p. 48), from whose writings
Socrates derived the information.

1 Examples of Constantine's policy are his confirmation of the con-
demnation of Eustathius of Antioch on a charge of Sabellianism in 330,
his citation of Athanasius to the synod of Tyre in 335, and the exile
of that ecclesiastic to Gaul after a personal appeal to Constantinople.

2 Athanasius, Hist. Ar., 8. It has been suggested that the return of

149] HERESY 39

Constantius was gifted with a taste for polemical discus-
sion, his mind had not the catholicity of taste or judgment
of his father's, and he was more susceptible to clerical in-
fluence. His sympathies were won for Arianism by Euse-
bius of Nicomedia, and he did not hesitate to give religious
intolerance the support of civil authority. Upon the return
of Athanasius to Alexandria shortly after the death of
Constantine, the Arians of- that city met and elected a bishop
in the person of Pistus, one of those radical members of
their party who had been condemned at Nicea. The fol-
lowers of Athanasius protested, sending letters to the neigh-
boring bishops, among them to the Bishop of Rome, and
perhaps to the emperor Constans, while Eusebius and his
coterie in return preferred charges against Athanasius be-
fore both emperors.^ The result was the election of a new
Bishop of Alexandria, Gregory of Cappadocia, in the winter
of 338-39, by a synod at Antioch, where Constantius was
residing. In IMarch 339 the exarch of Egypt published an
imperial edict confirming this election, and, after a period
of rioting, the new bishop entered Alexandria under military
escort.^

Similar means were used to enforce conformity in other
parts of the east. Bishops from Thrace, Syria, Phoenicia
and Palestine were driven from their dioceses before the
spring of 340. Of these Lucius of Adrianople, Marcellus

the exiled bishops was due to the eflfort of Constans and Constantine 11
to win popularity in the west, and therefore it was not opportune for
Constantius to protest. (Loofs, " Arianismus," in Rcal-Encyclopcdie,
3d ed., Bd. ii). Seeck, on the other hand, thinks that it was the result
of a common policy. He questions the letter of Constantine II which
makes the recall of exiled bishops the wish of his deceased father.
(Ztsch. fiir K. G., vol. xvii).

1 Athanasius, the leader in this movement of protest, defended him-
self in a letter to Constans. Apologia ad Con., 4.

2 Ath., Ep. Eticyi, written just after the event (Hist. Ar., 14).

40 EDICTS OF THE THEODOSIAN CODE [150

of Ancyra, Asklepos of Gaza, and Paul of Constantinople
sought refuge at Rome/ Julius of Rome addressed a let-
ter of protest in their behalf to the Arian leaders.^ In
reply the synod of Antioch anathematized all who had been
associated with Marcella of Antioch, and adopted a state-
ment of doctrine, ante-Nicene in character; while a few
months later a new creed was formulated by a second synod
at Antioch, which was sent to Constans in the hope that it
would reconcile the west.*

In the meantime Constans, at the suggestion of some of
the western clergy, gained the consent of Constantius for
the convocation of a general synod of the church.* This
body met at Sardica late in 343. All hopes for the for-
mation of a universal creed were defeated by the attitude
of the western ecclesiastics, who opposed the reopening of
the cases of the Arian bishops recently deposed, and by
the consequent withdrawal of nearly all the eastern members
from the council.^ The breach between the two parties was
thus widened. The eastern members who had sympathized
with the attitude of the west were deposed or exiled. But
the succeeding years are notable for the absence of any
imperial participation in the Arian controversy. Constan-
tius permitted the return of Athanasius to Alexandria while
Constans was engaged in a persecution of the Donatists,

1 Ath., Apol. c. Ar., 33; Soc. ii, 15. For references to the sources
for individual cases, cf. Loofs, loc. cit.

2 This was done after a synod of Rome had declared Athanasius and
Marcellus illegally deposed. Cf. Ath., Apol. c. Ar., 21, 35.

3 Harnack, Hist, of Dogma, vol. iv, p. 6y. Athanasius, De Synod., 22,
24. Date, 341.

* Ath., Apol. c. Ar., 4.

5 The eastern members then drew up a statement of doctrine, and
also declared Athanasius, Marcellus, Julius of Rome and other leaders
of Sardica excommunicated. Socrates, i, 20.

15 I ] HERESY 41

caused by their opposition to imperial gifts to the African
church.^

After the death of Constans and the end of the rebelHon
of Magnentius, more radical Arian opinions developed in
the east and new accusations were preferred against
Athanasius. Constantius, now sole emperor, fell under the
influence of Ursacius, one of the most radical and unscrupu-
lous of the Arian bishops. The synod of Aries (353) con-
demned Athanasius, and the reaction thus begun culminated
in the synod of Milan, held in 355. A majority of its
members were from the west, but an Arian creed was sub-
mitted to them by Constantius, with the order that those
who would not subscribe should be exiled." Liberius of
Rome, Hilary of Poitiers, and Eusebius of Vercelli suf-
fered the penalty of non-conformity, while Athanasius was
expelled from Alexandria by imperial troops. Another
radical creed was soon after formulated at Sirmium. The
result was a new alignment of ecclesiastical parties. The
conservative Arians could not be reconciled to the new
radical movement, the resistance of the west to it was as-
sured, while later councils at Ariminum and Seleucia only
increased the confusion that already existed.^

The attempt of Julian to revive paganism and his hostility
to Christianity for a time eliminated political influence from
the religious controversy and made heresy once more a
purely ecclesiastical problem. His successor, Jovian, pro-
fessed the Nicene faith, but when " the ring-leaders of
contrary factions " approached him " in the interests of their
causes," he answered them " in gentle and courteous lan-
guage " that he would not " molest any religion they pro-

1 Optatus, De Schismatc Donatistatum, iii, 3.

2 Sulpicius Severus, Chronicon, ii, 39.

3 Cf. Harnack, History of Dogma, vol. i, pp. 75-8o.

42

EDICTS OF THE THEODOSIAN CODE [152

fessed, but above all others he honored and reverenced such
as were peacemakers." ^ In the divided administration
which succeeded that of Jovian, the religious policy of the
western emperor, Valentinian I, was also one of neutrality.
In the beginning of his reign he issued an edict of tolera-
tion and when ecclesiastics petitioned him in behalf of their
doctrine he replied, " It is not right that I, one of the laity,
should examine curiously things of this nature. This is
for the consideration of priests, and whatever they shall
decide should come to pass." ^

The policy of Valens, emperor of the east, was also at
first one of toleration. But he soon fell under the in-
fluence of Eudoxius, one of the radical Arians. When rep-
resentatives of the synod of Lampsacus (364) informed
him of its work and the doctrine it represented, Valens
" exhorted them not to be at variance with Eudoxius."
Upon their remonstrance he sent them into exile and
" ejected from the churches or maltreated and harassed in
some other form " those " not in communion with
Eudoxius." ^ The conservative Arians suffered as much
as the Athanasians and the result was to unite the two into
a new Nicene party v/hich gained ascendency under Theo-

1 Socrates, H. E., iv, 25.

2 The edict of toleration is not extant. It is referred to in C. Th.,
ix, 16, 9. The quotation is from Soz., H. E., vi, 7. The letter of Valen-
tinian to an Illyrian synod, directing its members to subscribe to the
Nicene creed, given by Theodoretus, H. E., iv, 8, is doubtless a forgery.
But in the year preceding his death (375), according to Theodoretus
{Historia Ecclesiastica, iv, 7), Valentinian endorsed the dogma of the
Athanasian party. This chapter of Theodoretus has been rejected by
Hefele {Concilien Geschichte, vol. i, p. 741) and accepted by Schiller
(Gesch. der rom. Kaiserzeit, vol. ii, p. 364). If the statement of Theo-.
'doret is true, the change in policy could have had but little effect, for
the Gothic war opened the following year and prevented persecution.

3 Soz., vi, 7. Cf. vi, 12, which says that the bishops exiled by Con-
stantius and recalled by Julian were ejected from the churches.

153] '^^^^^^'' 43

dosius. Yet the extent and nature of the persecution by
Valens are uncertain. Only six cases of the deposition of
bishops as the result of his reactionary policy are known,
and of these, Athanasius was finally recalled to Alexandria.
The statement of Sozomenus, that the persecuted " sustained
torture of body, were carried to the tribunals of the presi-
dents [of the provinces], and on account of the faith of
which they were found guilty were deprived of their prop-
erty " may be the result of a confusion of the police meas-
ures against the Egyptian monks with the persecution of
doctrine.^ Yet, in 373 Themistius, a distinguished pagan
philosopher, addressed an oration to Valens on behalf of the
persecuted. Finally, at the opening of the Gothic war in
376, an edict of toleration to all sects was issued and the
persecution ceased."

The reigns of Gratian and Theodosius, decisive for the
relation between the government and paganism, were equ-
ally decisive for the problem of heresy. One of the first
acts of Gratian was to reverse the tolerant policy of his
father, Valentinian I, and, in the interest of the Nicene
party, always dominant in the west, to forbid meetings of
heretics and to confiscate their places of assembly to the
fiscus.^ In 378 this law was re-enacted, but later in the
same year, perhaps after the death of Valens, toleration
was granted to all sects except the Eunomians, Photinians
and Manichjeans.'* But after the meeting of Gratian and

1 Soz., vi, 14; C. Th., xii, i, 63; Soc, iii, 22, 23.

2 The oration of Themistius is not extant. It is mentioned by Soz.,
vi, 36. The twelfth oration on tolerance was made at an earlier date,
perhaps at the beginning of the reign. For the edict of 376, cf. Soc.
iv, 35-

3 This edict is not extant. It is referred to in C. Th., xvi, 5, 4. Date,
late in 375 or early in 376.

* C. Th., xvi, 5, 4. Haenel makes the date 376. Rauschen {loc. cit.,
p. 330, n. i) and Godefroy make it 378; cf. Soc. v, 2; Soz., vii, i. The

44 EDICTS OF THE THEODOSIAN CODE [154

Ambrose in 379, the edict of toleration was rescinded, and
all heresies opposed to laws divine and imperial were or-
dered to come to an end/ Gratian, however, was by na-
ture humane and moderate. In spite of this legislation
and the influence of Ambrose, the Arians of Milan were
permitted to retain possession of one basilica until the in-
sult of Ambrose by the Arians of Sirmium.

A far more drastic policy toward heresy was pursued by
Theodosius. In 380 he was seized with a serious illness at
Thessalonica and was baptized by Acholeus, a Nicene
bishop.^ After his recovery he issued an edict to the people
of Constantinople that " all who are under the sway of our
clemency shall adhere to that religion which, according to
his own testimony, coming down to our own day the blessed
Peter delivered to the Romans, namely, that doctrine which
the Pontiff Damasus, and Peter, Bishop of Alexandria,

Eunomians and Photinians were Arian sects ; the former thought that
the Son is of different essence from the Father and that he is created
out of nothing; the latter made the divinity of Jesus a growth by
moral improvement on the basis of human nature. The Manichseans
will be discussed later.

1 C. Th., xvi, 5, 5. Impp. Gratianus, Valcntinianus et Theodosius A.
A. A. ad Hesperium Pf. P. Omnes vetitje legibus et divinis et imperial-
ibus haereses perpetuo conquiescant. Quisquis opinionem plectibilibus
Dei profanus imminuit, sibi tantummodo nocitura sentiat, aliis obfutura
non pandat. Quisquis redempta venerabili lavacro corpora reparata
morte tabificat, id auferendo, quod geminat, sibi solus talia noverit,
alios nefaria institutione non perdat. Omnesque perversse istius super-
stitionis magistri pariter et ministri, seu illi sacerdotali assumptione
episcoporum nomen infamant, seu, quod proximum est, presbyterorum
vocabulo religionem mentiuntur, seu etiam se diaconos, cum nee Chris-
tiani quidem habeantur, appellant, hi conciliabulis damnatae dudum
opinionis abstineant. Denique antiquato rescripto, quod apud Sermium
nuper emersit, ea tantum super catholica observatione permaneant, quae-
perennis recordationis pater noster et nos ipsi victura in aeternum aeque
numerosa iussione mandavimus. Dat. Ill Non. Aug. Medioliano, Ace.
XIII Kal. Sep. Ausonio et Olybrio Coss. (379).

- Soz., vii, 4.

155] HERESY 45

men of apostolic sanctity, now follow," ctc.^ In January
of the following year another edict forbade the heretics to
assemble within the cities, required the name of the one and
supreme God to be celebrated, and the Nicene faith, as
handed down by the fathers and confirmed by the testimony
and assertion of divine religion, to be always maintained."
In the same year, after the reformulation of the Nicene
doctrine by the Council of Constantinople, which was con-
voked by the emperor to adjust problems of doctrine, the

1 C. Th., xvi, I, 2.

2 C. Th., xvi, 5, 6; xvi, 5-6. Ibid., A. A. A. {Gratianus, Valcntinianus
et Theodosius). Eutropio Pp. P. Nullus haereticis mysteriorum locus,
nulla ad exercendam animi obstinatioris dementiam pateat occasio.
Sciant omnes, etiamsi quid speciali quolibet rescripto per fraudem elicito
ab huius modi hominum genere impetratum est, non valere. § i. Arce-
antur cunctorum haereticorum ab illicitis congregationibus turbae. Unius
ct summi Dei nomen ubique celebretur; Niceanae fidei, dudum a maior-
i'bus traditae et divinae religionis testimonio atque assertione firmatae,
observantia semper mansura teneatur; Photiniae labis contaminatio,
Ariani sacrilegii venenum, Eunomiae perfidiae crimen et nefanda mon-
struosis nominibus auctorum prodigiae sectarum ab ipso etiam aboleantur
auditu. § 2. Is autem Nicaenae assertor fidei et catholicae religionis verus
cultor accipiendus est, qui omnipotentum Deum et Christum filium Dei
unum nomine confitetur, Deum de Deo, lumen de lumine; qui spiritum
sanctum, qui id, quod ex summo rerum parente speramus, accipimus,
negando non violat : apud quem, intemeratae fidei sensu, viget incorruptae
trinitatis indivisa substantia, quae graeci assertione verbi ovaca^ recte cre-
dentibus dicitur. Haec profecto nobis magis probata, haec veneranda
sunt. § 3. Qui vero iisdem non inserviunt, desinant affectatis dolis alienum
verae religionis nomen assumere, et suis apertis criminibus denotentur.
Ab omnium summoti ecclesiarum limine penitus arceantur, cum omnes
haereticos iilicitas agere intra oppida congregatlones vetemus, ac, si quid
eruptio factiosa tentaverit, ab ipsis etiam urbium moenibus exterminata
furore propelli iubeamus, at cunctis orthodoxis episcopis, qui Nicaenam
fidem tenent, catholicae ecclesiae toto orbe reddantur. Dat. IV Id. Ian.
Constantinopali, Eucherio ct Syagrio Coss. (381).

The phrases, "Deum de Deo, lumen de lumine," lead Godefroy to
think that the edict w^as published after the council of Constantinople,
for they appear in the creed formulated at the council. But the date
of the edict in both the Theodosian and the Justinian codes is January,
while the council did not convene until May, 381.

46 EDICTS OF THE THEODOSIAN CODE [156

proconsul of Asia was ordered to deliver all churches to
those bishops "who profess that the Father, Son, and Holy
Spirit are one majesty and virtue, the same glory, one light
making no confusion by profane division, but are. the order
of the Trinity, the incorporation of persons, and unity of
the Divinity." ^

The Arians did not surrender without protesting their
right to exist. In the east " great disturbances arose as they
were ejected from the churches." " This and the con-
flicting claims of orthodox churches to the property of
heretical congregations led Theodosius to convene a gen-
eral conference of all sects at Constantinople in 383. He
also hoped that by a discussion wdth their bishops unanim-
ity of belief might be established.^ But instead of a free
exchange of opinion, the members of the council were
asked if they would accept as authoritative the teaching
of those fathers who lived previous to the dissension in
the church. When Theodosius received no satisfactory re-
ply, he commanded the sects — the Arians, Eunomians, Mace-
donians and Novatians — to draw up written statements of

1 C. Th., xvi, I, 3. The bishops representing the faith are named.
They are Nectarius of Constantinople, Necrarius of Alexandria, Pela-
gius of Laodicea, Diodorus of Tarsus, Amphilocus of Iconia, Optimus
of Antioch, Helladius of Ctesarea, George of Nyssa, Terrenus of
Scythia, Marmoria of Martianopolis and Olreius of Meletus. All
bishops who differed from the faith of these were to be expelled from
their dioceses. {Cf. Soz., vii, 9.) It is notable that there is no men-
tion of any western bishops. The reason is obvious. Arianism was
primarily an eastern problem and Theodosius wished to solve it by
appealing directly to the east and avoiding any appearance of tutelage
of the east by the west. Cf. Harnack, History of Dogma, vol. ii, p.
95, n. I, on the policy of Theodosius.

2 Soz., v, 10.

3 Ibid. This procedure was adopted by Theodosius at the suggestion
of Nectorius of Constantinople, to whom it was suggested by Sisennius,
a Novatian.

157] HERESY 47

their creeds. Tliese were submitted to him at the palace,
and after prayer, he destroyed them all except that of the
Novatians. The other sects withdrew from the council
and soon they were forbidden to hold meetings, to ordain
priests or to promulgate their doctrines, and their places of
assemblage were confiscated to the fiscus/

The hopes of Arianism now centered in the west. Tliere
the proscribed faith found a patron in the person of Justina,
widow of Valentinian I and mother of Valentinian II.
After the death of Gratian her influence at court was su-
preme and Arian officials and Gothic troops found their way
into the imperial service. Ambrose was petitioned for the
use of a small basilica near the city of Milan where the
Arians might celebrate the Easter of 385 according to their
own rites. He refused, and when the request was repeated,
he advanced in his reply the theory that property once in

1 C. Th., xvi, 5, II, 12, 13. Besides the sects above mentioned, the
Apollinarists, Manichseans, and certain sects of minor importance were
included. The twelfth edict is typical.

Vitiorum institutio Deo atque hominibus exosa, Eunomiana scilicet,
Ariana, Macedonia, Apolinariana, ceterarumque sectarum, quas verae re-
ligionis venerabili cultu catholicae observantiae fides sincera condeninat,
neque publicis, neque privatis aditionibus intra urbium atque agrorum
ac villarum loca aut colligendarum congregationum aut constituendarum
ecclesiarum copiam praesumat, nee celebritatem perfidiae suae vel solen-
nitatem dirae communionis exerceat, neque ullas creandorum sac-
erdotum usurpet atque habeat ordinationes. Eaedem quoque demus, seu
in urbibus seu in quibuscunque locis passim turbae professorum ac min-
istrorum talium colligentur, fisci nostri dominio iurique subantur, ita ut
hi, qui vel doctrinam vel mysteria conventionum talium exercere con-
sueverunt, perquisiti ab omnibus urbibus ac locis, propositiae legis vigore
constricti expellantur a coelibus, et ad proprias, unde oriundi sunt, terras
redire iubeantur, ne quis eorum aut commeandi ad quaelibet alia loca
aut evagandi ad urbes habeat potestatem. Quod si negligentius ea,
quae serenitas nostra constituit, impleantur, et officia provincialium iudi-
cum et principales urbium, in quibus coitio vetitae congregationis re-
perta monstrabitur, sententiae damnationique subdantur. Dat IV Non.
Sept. Constantinopali, Merobaude II et Saturnino Coss. (383).

48 EDICTS OF THE THEODOSIAN CODE [158

the possession of the church is the property of God, that
priests must administer it and never permit its reversion
to the world/ When it seemed that the court part)^ would
resort to force, Ambrose threatened the soldiers with ex-
communication. Public opinion was with him; the Nicene
soldiers left their Arian captains and a temporary recon-
ciliation between Ambrose and Valentinian followed.^ But
in 386 the emperor gave the Arians the right of assemblage
and declared that its violators would be guilty of maiestas
and liable to the death penalty.^ When Ambrose again
refused to allow the Arians the use of church property
Valentinian issued a decree exiling him. Ambrose replied
that the emperor was within the church, not over it, and
that in matters of faith the layman has no jurisdiction over
the priest.* The sympathies of the people were again with
him, and Valentinian did not attempt to enforce the decree
of exile.

This quarrel of Ambrose and the Arian court was in-
terrupted, in 387, by the invasion of Italy by Maximus. In
383 Maximus had been proclaimed Augustus by the army in
Britain; after the murder of Gratian he extended his au-
thority to Gaul and Spain, and was recognized by Valen-
tinian and Theodosius.^ He now appeared in Italy as the
champion of the Catholic faith.® Justina and Valentinian

1 Amb., Ep., XX.

2 See Rauschen, loc. cit., pp. 212-214, for summary of events, with
references to the sources.

3 C. Th., xvi, I, 4; 4, I. ^ Amb., Ep., xxi.

s All the sources except Zosimus agree that the elevation of Maxi-
mus was the work of the army. Cf. Rauschen, loc. cit., p. 143, n. 2.
In regard to the death of Gratian the sources vary. Cf. the discussion
of Rauschen, p. 482. For recognition by Valentinian and Theodosius,
ibid., pp. 144 and 172.

« There is a letter of Maximus to Valentinian threatening him with
war if he did not cease his opposition to the Catholic faith. (Theo-

159] HERESY 49

fled to Thessalonica and implored the aid of Theodosius.
After cementing a political alliance by marriage with Galla.
sister of Valentinian, Theodosius assembled a large army
and, in the summer of 388, invaded Italy, and defeated Max-
imus in two battles in Pannonia, where he was taken prisoner
and executed. At the opening of the campaign Valentinian
had withdrawn from the Arians their rights of assemblage,
of erecting altars for worship and of celebrating the sacra-
ments.^ Since Justina died during the war, there was no
hope for the toleration of paganism in the reorganization
of administration in the west.

While Theodosius was in Italy the activity of the heretics
in Constantinople also demanded the attention of the civil
authorities. The legislation of the previous years had not
been rigorously enforced. In 387 the Arians and Apollin-
arists held public meetings at Constantinople and the Euno-
mians conducted a religious propaganda in Cappadocia.^
Consequently, before the invasion of Italy, an edict was pub-
lished which withdrew from the heretics the right of resi-
dence in the cities and forbade the ordination of their
officials.^ Then, before the decisive battle with Maximus,
a report was circulated in Constantinople that Theodosius
had been " cut to pieces and that he himself had been cap-
tured." The Arian sects were elated and burned the house
of Bishop Nectorius, and another report, that the emperor
had issued a tolerant edict, was circulated.*

doret., H. E., v, 14.) This writer also says that Theodosius wrote to
Valentinian that it was no wonder that Maximus was successful, for
he defended, while Valentinian persecuted, the orthodox faith. Ibid.,
V, 15-

1 C. Th., xvi, 5, 15. 2 Greg. Naz., Ep., 202. Cf. Soz., vi, 27.

' C. Th., xvi, 5, 15. This was probably due to the influence of Greg-
ory Nazianzus and Nectorius of Constantinople.

* Soz., vii, 14.

50 EDICTS OF THE THEODOSIAN CODE [i6o

These conditions were responsible for two edicts which
forbade pubHc discussions of religion, the publication of
religious tracts, and threatened with the punishment of a
forger (falsi reus) the one responsible for the report of the
tolerant legislation/ After the return of Theodosius to
the east he repeated the prohibition of the residence of
heretics in Constantinople, and of their ordination, as well
as the confiscation of places of worship, in 392 and 394 —
sufficient evidence that heresy was one of the numerous
problems which the imperial administration could not
promptly or efficiently solve.^ But when Arcadius, in a
series of edicts, confirmed and re-enacted his father's legis-
lation, many heretics became reconciled to the orthodox
church and heresy ceased to be a political problem of im-
portance in the east.^

In the policy of Gratian and Theodosius toward heresy
there is a perceptible change from that of their predeces-
sors. The motive which actuated Constantine's interest in
problems of faith was one of expediency, a desire for unity
in the church, because that was conducive to the welfare of
the state. After all is said of Constantius's religious opinions,
the political aspects of heresy were to some extent respon-
sible for his policy, while the military character of Valens
and his toleration of paganism suggest that a desire for
ecclesiastical unity rather than personal interest in any one
creed was responsible for the persecution he instituted.
The efforts of these emperors to establish religious unity

1 C. Th., xvi, 4, 2 ; ibid., 5, 16. A special edict for the ApoUinarists
was drafted. C. Th., xvi, 5, 14.

2 C. Th., xvi, 5, 21, 22, 24 ; cf. 4, 3.

3 C. Th., xvi, 5, 25, 26, 30. Cf. Soz., viii, I. The character of Arca-
dius's legislation shows that heresy was not a serious political problem.
It repeats the penalties so frequently inflicted on heresy and is directed
against heretics in general.

l6l] HERESY 51

were directed against ecclesiastical leaders and officials. In
the legislation of Gratian and Theodosius, however, re-
ligious conviction was a stronger motive than political ex-
pediency. Therefore the lay as well as the ecclesiastical
members of the sects were proscribed. An evidence of this
change in purpose is the conception of heresy as it affected
the rights of citizenship. Theodosius made the violation
of divine law equivalent to sacrilege, and such violation in-
volved the loss of certain rights of Roman citizenship.^
First, the power of leaving or receiving legacies, one of the
distinctive privileges of Roman citizens, was taken from
the Manichaeans in 381, then from the Eunomians in 389.*
Honorius extended this legal disability to the Donatists and
Priscillianists, while Theodosius the Younger applied it to
all sects. ^ The right to hold office at court or in the army
was withdrawn from the Eunomians by Theodosius; Hon-
orius excluded all enemies of the Catholic sect from service
in the palace; and, finally, Theodosius the Younger for-
bade heretics to take the military oath of allegiance or to
serve in the imperial army.* Apostates — those forsaking the

1 C. Th., xvi, 2, 25. Qui divinae legis sanctitatem aut nesciendo con-
fudunt aut negligendo violant et ofifendunt, sacrilegium committunt
(380).

2 C. Th., xvi, 5, 7, 17. The latter edict imposing the disabilities on
the Eunomians was repealed in 394 on account of domestic troubles and
the friendship of Eutropius for the heretics. C. Th., xvi, 5, 23. It was
re-enacted by Arcadius, ibid., 5, 25.

3 C. Th., xvi, 5, 40, 65.

* C. Th., xvi, 5, 29. Marcello Magistro oMciorum. Sublimitatem
tuam investigare praecipimus, an aliqui haereticorum vel in scriniis vel
inter agentes in rebus vel inter palatinos cum legum nostrarum iniuria
audeant militare ; quibus, examplo divi patris nostri, omnis et a nobis
negata est militandi facultas. Quoscunque autem deprehenderis culpae
huius aflfines, cum ipsis, quibus et in legum nostrarum et in religionum
excidium conniventiam praestiterunt, non solum militia eximi, verum
etiam extra moenia urbis huiusce iubebis arceri. Dat. VIII Kal. Dec.
Constantinopali, Olybrio et Probino Coss. (395). Ibid., 42. Eos, qui

^2 EDICTS OF THE THEODOSIAN CODE [162

Christian faith — suffered Hkewise. Constantius had de-
prived Christians who became converts to Judaism of their
testamentary privileges, and Theodosius extended the
penalty to those forsaking the church for the pagan rites,
permitting the revocation of their testaments/ The ec-
clesiastical conception of the offence is reflected in an edict
of Valentinian II which declares that those who desert and
profane the right of sacred baptism " should be segregated
from the companionship of all," cast out and banished un-
less they do major penance; not even then can they re-
turn to their former position in society " since those who
pollute the faith which they have vowed to God are not able
to behold those things which are ideal and just.'

catholicae sectae sint inimici, intra palatium militare prohibemus, ut
nullus nobis sit aliqua ratione coniunctus, qui a nobis fide at religione
■discordat. Dat. XVIII Kal. Dec. Ravenna, Bosso et Philippo Coss.
(408). Ibid., 48. Montanestas et Priscillianistos et alia huiusce modi
genera nefariae superstitionis per multiplicita scita divalia diversa ulti-
onum supplicia contemnentes, ad sacramenta quidum militiae, quae nos-
tris obsecundat imperiis, nequaquam admitti censemus, etc. Ibid., 65.

iC. Th., xvi, 8, 7; ibid., 7, 1. Eis. qui ex Christianis pagani facti
sunt, eripiatur facultas iusque testandi, et omne defuncti, si quod est,
testamentum summata conditione rescindatur (381). Such legislation
would naturally cause confusion in the possession and administration
of Roman property. It was, therefore, modified by subsequent edicts.
Theodosius allowed catechumens relapsing to paganism to leave their
property to their children and brothers (C. Th., xvi, 7, 2), and Arcadius
forbade apostates to alienate property from their own blood {ibid., 7,
6). Other legislation determined the method by which testaments might
be revoked. According to the edict of Gratian, an action to declare
a testament void (incMciosuni) must be brought within five years
of the testator's death. (C. Th., ii, 19, 5.) Valentinian II states that
this rule applies to actions against apostate testaments, but the action
cannot be instituted by an apostate against an apostate. (C. Th., 7, 3.)
But Valentinian III abolished the time limit and the prohibition of
apostates from bringing an action. (Ibid., 7, 7.)

2 C. Th., xvi, 7, 4. Impp. Valentinianus, Theodosius et Arcadius A.
A. A. Flavanus Pf. P. Hi, qui sanctam fidem prodiderint et sanctum
baptisma profanerint, a consortio omnium segregati sint, a testimoniis

I63] HERESY 53

The attitude of the state toward the Jews also seems to
have been affected by clerical influences. Honorius and
Theodosius the Younger excluded them from military and
all other public services except municipal offices, while an
even stronger suggestion of their position in mediaeval so-
ciety was the law which gave temporal officials the right to
inspect and increase the taxes paid into the public treasuiy
by the Jewish communities/

alieni, testanienti, ut ante iam sanximus, non habeant factionem, nulli
in hereditale succedent, a nemine scribantur heredes. Quos etiam prae-
cepissemus procul abiici ac longius amandari, nisi poenae visum fuisset
esse maioris, versari inter homines et hominum carere suffragiis. § i.
Sed nee unquam in statum pristinum revertentur, non flagitium morum
oblitera"bitur poenitentia neque umbra aliqua exquisitae defensionis aut
muniminis obducetur, quoniam quidem eos, qui fide, quam Deo dicave-
rant, poUuerunt et prodentes divinum mysterium in profana migrarunt,
tueri ea, quae sunt commenticia et concinnata non possunt. Lapsis
etinim et erantibus subvenitur, perditis vero, hoc est sanctum baptisma
profanantibus, nullo remedeo poenitentiae, quae solet aliis criminibus
prodesse, succuritur. Dat. V Id.Maii Concordiae, Tatiano et Symmacho
Coss. (390-

1 C. Th., xvi, 7, 6, 7 ; 8, 24, 29. There are twenty-nine edicts on
Judaism in the eighth title of the code, and five in the ninth. There
are three periods in this legislation. First, the reigns of Constantine
and Constantius, in which Jews were prohibited from punishing those
leaving their faith, from circumcising their slaves and trafficking in
Christian slaves, while the marriage of Jews to Christian women and
the conversion of Christians or Roman citizens to the Jewish faith was
also forbidden. Jews were also subjected to curial obligations. The
second period extends from Julian to Theodosius, a period of tolera-
tion, in which there was no new legislation. Theodosius was urged to
legislate against the Jews by Ambrose {Ep., 29), but we find him com-
paratively tolerant. The third period is that of the sons and successors
of Theodosius. Rufinus and Eutropius were generous to the Jews, but
Theodosius II interdicted the erection of new synagogues, forbade
Jewish patriarchs to decide cases between Jews and Christians, and the
possession of Christian slaves by Jews ; but an exception was made in
favor of Gamaliel, a patriarch in honor at the court. For the condition
of the Jews at Alexandria, cf. Socrat., vii, 15. Also C. Th., xvi, 8,
18, 21. On the condition of Jews in the later empire, see Gratz,
Gcschichtc dcr Judcn, vol. iv.

CHAPTER III

Heresy and Ecclesiastical Institutions
(Continued)

The Roman religion of the second and third centuries
gives the impression of a mosaic to which tradition, super-
stition, poetry, and a genuine spirit of inquiry lend their
shares, and in which persecution was the exception, not the
rule. The repression of heresy by secular force therefore
suggests two questions : what motive for persecution other
than religious convictions appealed to the emperors, and
what change was wrought in the tolerant spirit of the em-
pire by the persecution of the Christian sects ? No definite
answers can be given, but there are certain conditions and
facts which modify the impressions which the preceding
legislation may leave concerning the intolerant influence of
the church.

In the first place, the social aspects of certain sects made
them the subject of legislation. Chief among these were
the Manichaeans. Their doctrines were never attractive
to the multitude; only the thoughtful and devoutly minded
were drawn into the sect, says Augustine. The ascetic,
secret character of their teaching, their questionable atti-
tude toward family life and the popular prejudice which as-
sociated with their services magical and immoral practices
made them obnoxious. Diocletian ordered them to be
exiled, their leaders to be subjected to capital punishment
and their property to be confiscated to the fiscus.^ The
1 Codex Gregorianus, xiv, 4.
54 [164

165] HERESY (CONTINUED) 55

tolerant Valentinian I was active in the suppression of the
magic arts and so ordered the Manichsean teachers to be
fined, and their places of meeting to be confiscated.^

Theodositis took from the Manichaeans and similar ob-
noxious sects the right of making and receiving legacies,
confiscated their property bequeathed to their sons, if these
were of the same faith as their fathers, and interdicted any
celebration of their rites, while Valentinian the Younger
forbade their residence in all parts of the Roman world,
especially at Rome, under penalty of death. ^ Their strong-
hold in the west was Africa, where, with the Donatists, they
were the subject of frequent legislation by Honorius.^

The social aspects of the Donatist schism also made it a
subject of legislation in the later fourth and early fifth cen-
turies. The emperors from Constantine to Honorius, with
the exception of Constans, permitted the Donatists to re-
main unmolested. The edicts of Gratian and Valentinian
which mentioned them were not enforced outside of Italy.
But finally when the schism broadened from an ecclesiastical
quarrel to a source of civil disorder, persecution was re-
sorted to.

The Circumcellions, a mendicant, socialist sect, were
appealed to for aid by the Donatists at the time of the per-
secution of Constans. Northern Africa was soon infested
with a body of religious fanatics, escaped slaves, erring
priests and nuns who tortured the Catholics, defiled churches
and forced the laity to accept Donatist baptism. In 395
Theodosius died and Gildo, a native prince and friend of the
Donatists, usurped the administration of Africa. A period

1 C. Th., xvi, 5, 3- Cf. C. Th., ix, 16, 7, 8, 10, 11.

2 C. Th., xvi, 5, 7, 18. The other sects were the Encraticae, Apota-
clitae, Hydropharastitae and Saccafari.

3 Cf. the edicts mentioned in the following paragraphs.

56 EDICTS OF THE THEODOSIAN CODE [i66

of wild religions license now opened ; when Gildo was over-
thrown in 398, the Catholics took vengeance by having
Honorius repeal the privilege of assemblage given the Don-
atists by Julian/ In 405 Honorius, in reply to a petition
of an African council of the preceding year, also declared
the Donatists to be heretics, confiscated their places of as-
sembly, excluded them from testamentary rights, and im-
posed fines upon them.^

A dreary civil war ensued. Upon the death of Stilicho
in 408, the Donatists claimed that the laws made during his
regency now passed out of effect. But Olympus, the suc-
cessor of Stilicho, was a Christian, and in answer to peti-
tions from Augustine and a synod of Carthage, the legis-
lation against the schismatics was confirmed.^ The
Catholic bishops then expressed their thanks to the emperor
and informed the civil authorities of the nature of the law.
In 409, on account of the sympathy of the Donatists for
Attains, the rival emperor set up by Alaric, the enforce-
ment of the legislation against them was forbidden.* But
in the following year the army sent to Africa by Attains was
defeated, "the decree which the followers of heretical super-
stition had obtained to protect their rites " was rescinded,
and " the penalty of proscription and death " was imposed
for their " criminal audacity in meeting in public." ^ The
tribune Marcellinus was appointed to convoke and preside
over a conference of Donatists and Catholics. This oc-
curred in June, 411 ; the decision was in favor of the Catho-
lics, and the Donatists were ordered to deliver up their

1 C. Th., xvi, 5, 27-

2 C. Th., xvi, 5, 38, 39. It is interesting to note that this was the
first state legislation on heresy approved by Augustine.

3 C. Th., xvi, 5, 44, 45, 46. The latter seems to be in response to
the synod of Carthage.

*Ibid., 5, 47. ''Ibid., 5, 51.

167] HERESY (CONTINUED) 57

churches and to accept the CathoHc faith. Honoriiis re-
newed the penalties against them in 414, branded them
with perpetual infamy, and in 415 threatened with death all
Donatists who dared to celebrate their religious rites. ^ The
persecution now began its final and most bloody period. The
Donatists in despair grew indifferent to life. They attacked
armed bodies of Catholics and, rather than fall into the hands
of their enemies, often committed suicide.^ The conflict
continued until the invasion of Africa by the Vandals. The
persecution of the church which the latter instituted, obliter-
ated the rivalry of Donatist and Catholic.

Religious dissension was indeed one of the characteris-
tics of the age. Gregory of Nyssa has left a graphic pic-
ture of mechanics and slaves who were profound theo-
logians. " If you desire a man to change a piece of silver
he infonns you wherein the Son differs from the Father,
and if you ask the price of a loaf you are told by way of
reply that the Son was created out of nothing." ^

Some interference in religious matters by the state was
therefore only natural, perhaps unavoidable; but while the
legislation regarding heresy is abundant, the information
regarding its execution is meager. Sozomenus says of
Theodosius that, " great as were the penalties adjudged by
the laws against heretics, they were not always carried into
execution, for the emperor had no desire to persecute his
subjects, he desired only to enforce uniformity of belief
about God through the medium of intimidation." •* If the

1 C. Th., xvi, 5, 55 (of 412) ; 54 (of 414) ; 55 confirms the penalties
imposed during the administration of Marcellinus, its occasion being
the appointment of a new governor of Africa. Cf. 56, 57, 58.

2 Augustine, Ep., 185.

3 Oratio de Filio et Spiritu Sanctii. Migne, Pat. Lat., vol. xlvi, p. 357.
* H. E., vii, 12.

^8 EDICTS OF THE THEODOSIAN CODE [i68

edicts of Tlieodosius were not rigorously enforced, what
must be said of the legislation of his inefficient successors?
No special courts were established for the prosecution of
heretics. The laws against them were executed through
the public tribunals/ As the civil officers were not skilled
in matters of doctrine, the guilty must have escaped punish-
ment by their ability to quibble and play with ecclesiastical
words and phrases. This probably accounts for an edict of
Arcadius which speaks of those who by slight arguments
deviate from the standards of the Catholic religion.^ The
acceptance of an orthodox creed would therefore, according
to a law of Honorius, quash all prosecution for heresy.^

1 There is one edict which provides for special tribunals for heresy.
It authorizes the pretorian prefect to appoint inquisitors, open a forum
and receive reports of denunciators vi^ithout the dishonor of delation.
C. Th., xvi, 5, g. But there is no information regarding the execution
of the edict. Its purpose was probably to intimidate.

2 C. Th., xvi, 5, 28. Haereticorum .vocabulo continentur et latis ad-
versus eos sanctionibus debent succumbere, qui vel levi argumento a
iudicio catholicae religionis et tramite detecti fuerint deviare. Ideoque
experientia tua Euresium haereticum nee in numero sanctissimorum
antistitum habendum esse cognoscat (39S).

3 C. Th., xvi, 5, 41. Licet crimina soleat poena purgare, nos tamen
pravos hominum voluntates admonitione poenitentiae volumus emendare.
Quicunque igitur haereticorum, sive Donatistae sint sive Manichaei vel
cuiuscunque alterius pravae opinionis ac sectae, profanis ritibus aggre-
gati catholicam fidem et ritum, quem per omnes homines cupimus
observari, simplici confessione susceperint licet adeo inveteratum malum
longa ac diuturna meditatione nutriverint, ut etiam legibus ante latis
videnatur obnoxii : tamen hos, statim ut fuerint Deum simplici religione
confessi, ab omni noxa absolvendos esse censemus, ut ad omnem re-
atum, seu ante contractus est, seu postea, quod volumus, contrahitur,
etiamsi maxime reos poena vidatur urgere, sufficiat ad abolentionem,
errorem propio damnavisse iudicio, et Dei omnipotentis nomen, inter
ipsa quoque pericula requisitum, fuisse complexum, quia nusquam debet
in misseriis invocatum religionis deesse subsidium. Ut igitur priores
quos statuimus, leges in excidium sacrilegarum mentium omni exse
cutionis argeri iubemus efifectu, ita hos, qui simplicis fidem religionis,
licet sera confessione, maluerint, censem.us datis legibus non teneri.

169] HERESY (CONTINUED) 59

Finally, the interference of the state in matters of faith
was a problem to the church fathers of the third and fourth
centuries. Tertullian, early in the third century, declared
that it is "a fundamental human right, a privilege of nature,
that every man should worship according to his own convic-
tions; it is assuredly no part of religion forcibly to impose
religion, to which free will and not force should lead us." ^
Lactantius, a contemporary of Constantine, also laid down
the principle that " religion can not be imposed by force;
if you wish to defend religion by bloodshed and by torture
and by guilt, it will no longer be defended but will be pol-
luted and profaned." ^ Chrysostom, living in a later
period, when the alliance of church and state had further
developed, approved the withdrawal of the right of assem-
blage from heretics and the confiscation of their property,
but he also recommended that Christian love be shown
them.^ It was only gradually that Augustine, who moulded
Christian thought in the west, was reconciled to enforced
conformity to the Catholic faith. Long acquaintance with
the Donatists, failure to convert them by argument, and the
formulation of his theory of the Christian state led him,
after the year 400, to decide that though it is " better that
men should be brought to serve God by instruction than by
fear or punishment," the latter means must not be neglected.*

Quae ideo sanximus quo universi cognoscant, nee profanis hominum
studiis deesse vindictam et ad rectum redundare cultum, legum quoque
adesse suffragium (407).

1 Ad Scap., 2 ; cf. Apoi, 24.

^ Div. Inst., V, 2; cf. Schaff, Progress of Religious Freedom, pp. 5, 6.

3 Horn, xxix and xlvi in Matt.

■* Ep. 185. In his Con. Gaud. Don., i, 20, he advances the idea that
if the state is not permitted to punish religious error, it cannot punish
any other error, for religious error like secular crime proceeds from
the evils of the flesh. Cf. Ep., 123, for the evolution of his ideas on
heresy.

6o EDICTS OF THE THEODOSIAN CODE [170

The case frequently cited as typical of the conditions
and opinions of the age regarding the treatment of
heretics, is the execution of Priscillian and the persecu-
tion of his followers. In 384 Priscillian was condemned
by the synod of Bordeaux for teachings tainted with
Manichreism. He then appealed to Maximus, the usurping
Augustus of the west. Martin of Tours and the better
element of the Gallic church were alarmed, for to them it
was sufficient " that condemned heretics be driven from the
church by episcopal sentence," and it was " a new and un-
heard-of crime that the secular judge should hear a case of
the church." They therefore advised Ithacus, the ecclesias-
tic pressing the case against Priscillian, to desist from prose-
cution in a secular court, and Maximus " to abstain from
the shedding of blood." But their protest was without
effect. Maximus appointed the Prefect Ennodius to con-
duct the trial and in a " twin judgment " Priscillian was
found guilty of magic. After confirmation of the sentence
by Maximus and a repetition of the procedure, Priscillian
was put to death by the sword, and a number of his follow-
ers were executed or exiled.^ The severity of the perse-
cution as well as the violation of the law and custom that
criminal charges against bishops should be examined by
a synod before action by the civil authorities, made it re-
pulsive to the more prominent ecclesiastics of the west.
Ambrose, Martin of Tours and Pope Siricius expressed
their disapproval and refused fellowship with Ithacus and
his followers.

Not till the fifth century, when Germanic revolutions and
invasions caused constant disorder and the administrative
system was less efficient than ever, was the death penalty

1 The source for the persecution of Priscillian is Sulpicius Severus.
Chronicon, ii, 46, 5.

Ijl] HERESY (CONTINUED) 6 1

for heresy justified by ecclesiastical theory. Then Leo I,
who secured imperial recognition of the authority of Rome
over other churches of the west and anticipated the dog-
matic arguments by which the papacy was later defended,
approved the work of Maximus — indeed he " accepted as a
duty the suppression of heresy and raised no objection to
legislation which treated heresy as a crime against civil
society, and declared it punishable with death." ^ The
legislation of the emperors therefore furnished a precedent
for later ages, rather than a condition of constant and active
persecution, and the opinion of the leading ecclesiastics re-
garding secular intervention in matters of faith was clearly
not unanimous.

When the church began to supplant paganism, and non-
conformity to its standards of faith caused the ejection of
guilty clerks from their churches and brought legal dis-
abilities to the laity, ecclesiastical institutions naturally be-
came a subject of legislation.

There is no better example of the strong influence which
ecclesiastical ideas exercised at the imperial court than the
edicts which forbid repetition of sacred baptism.^ Since
that sacrament was believed to purify the recipient from the
guilt of previous sins, the Donatist theory of the inefficacy
of sacraments administered by polluted hands was a vital
problem in the life of the church. While Valentinian would
not proscribe heretics, he declared in reply to a petition of
Gallic bishops that " the priest who repeats the rite of bap-
tism and, contrary to all canons, defiles that sacrament by
repetition, is unworthy of the priesthood." ^ Gratian also
condemned " the error of those who, despising the precepts
of the apostles, abuse the Christian sacraments by rebaptiz-

1 Chreighton, Persecution and Tolerance, pp. 76, yy.

2 C. Th., xvi, 6. 3 C. Th., xvi, 6, i.

62 EDICTS OF THE THEODOSIAN CODE [172

ing " and ordered their churches to be delivered to the
Catholics and their secret places of meeting to be confiscated
to the fiscus/ In the same year that Honorius began his
stringent legislation against the Donatists, he issued three
edicts against the rebaptizers, while the first edicts of Theo-
dosius the Younger on heresy were directed against the
Novatians, the rebaptizers of the east."

The extent to which clerical conceptions of life might in-
filtrate Roman culture is well illustrated by the legislation
on celibacy. There was a strong feeling in the early church,
largely Gnostic in origin, that the sexual relation involved
sin, but marriage of the clergy was never forbidden in
apostolic times. Some of the sects went so far as to
reject the institution of marriage and by the fourth
century it was generally held that the celibate life was
superior to the marital. In recognition of this sentiment
Constantine repealed the disabilities which the Roman law
had imposed on the celibate and gave to minors who ex-
pressed the intention of remaining celibate permission to
make testaments. Constantius denied to violators of sacred
virgins any escape from the penalty of the law, while Jovian
made any attempt to seize consecrated virgins or widows for
the purpose of marriage, even with their consent, a capital
offence, and withdrew from children of such a union their
right of succession to parental property.*

The relation of celibacy to clerical orders was also a sub-
ject of legislation. In the west, the radical opinion regard-

1 C. Th., xvi, 2. 2 ijjid,^ 3, 4, 5, 6, 7.

3 C. Th., viii, 16, I. Soz., i, 9. The law referred to was the Lex
Poppaea, enacted by Augustus. Tacitus, Annul, iii, 25.

*C. Th., ix, 25, I (Constantius). The Roman law provided that if
the violated woman should withdraw the accusation, the prosecution
should end. Constantius made escape from the penalty, which was
death, impossible. Ibid., ix, 25, 2 (Jovian).

173] HERESY (CONTINUED) 63

ing the sexual relation of the clergy was first expressed at
the synod of Elvira in 306. There it was required that
bishops, priests and all clerks should abstain from their
wives and should not beget children. This rule, however,
was not observed, and the marriage of clerks was recognized
in the legislation of Constantius and Theodosius.^ But
in the later part of the fourth century the celibacy of the
clerg}' was agitated by the papacy, and consequently African
and Spanish councils required clerks who engaged in the
administration of the sacraments to separate from their
wives and forbade the promotion in orders of those who
were fathers of children.^ This legislation aroused much
opposition. In Italy, Gaul and Spain many Christians held
to the sanctity and purity of the marital relation and were
consequently persecuted. Among them was Jovinian, who
denied the value of the celibate life. He was scourged
and driven from Rome, and his followers deported by
Honorius in 412.^ However, actual separation of husband
and wife who had been married before ordination was not
required, only abstinence from sexual intercourse. Conse-
quently, many of the clergy at the time of ordination desig-
nated their wives as sisters and so continued to live with
them. Abuse of this custom and the protection of exist-
ing marriages led Honorius in 420 to forbid clerks of all
grades to associate with "foreign women" (namely, all
except mothers, daughters and blood relatives), and to state
that celibacy did not require the divorce of wives wedded

1 C. Th., xvi, 2, 9, 10, II, 14; V, 3.

2 Con. Carth., II, 2; V, 3 ; Con. Toledo (400) ; Lea, History of Sacer-
dotal Celibacy, ch. v.

8 C. Th., xvi, 5, S3. Another edict of Honorius in 420, which pun-
ished with deportation any one who looks upon a sacred virgin as a
violator, probably refers to the Jovinians. Cf. Godefroy, C. Th., ix,
25, 3-

64 EDICTS OF THE THEODOSIAN CODE [174

before entrance to the priesthood — a rule which, frequently
cited by the councils, became the formal custom of the
early middle ages/

The political and social power acquired by the bishops,
as well as the enforced conformity to standards of faith,
made their election in the days of the later Roman Empire,
as in the Middle Ages, a matter of public importance.

With the transition from the conception of the episcopacy
as an administrative office to an institution ordained by
God, the consent of neighboring bishops as well as the
choice of the people became necessary for investiture with its
rights and duties. Consequently the election of patriarchs
was often the occasion of an ecclesiastical synod and
the emperors, through their relation to synods, which they
often convened and attended, might exercise a direct influ-
ence on elections. Constantine wrote to the council and
people of Antioch not to choose Eusebius of Csesarea bishop
of that city.^ Constantius convened "an assembly of bishops
of Arian sentiment " and deposed Paul of Constantinople.
It is also probable that he deposed other bishops by
similar methods.^ Valens ejected Eleusius, by an edict,
and installed Eunomius as bishop of Cyzicus, and there are
other instances of the Arian clergy securing investiture of
their bishops through imperial favor during his reign.*

In the west Valentinian I instituted a new policy. Visit-
ing Milan in 374 he found a synod assembled to elect a suc-
cessor to Auxentius, the deceased bishop of the city. The
synod asked him " by his wisdom and piety " to choose a

1 C. Th., xvi, 2, 44. The first part of this edict is similar to the
third canon of Nicea. The latter part is the rule of the Roman church,
as stated by Leo I, Ep., clxvii, in. 3; Loning, Gesch. des dciitschen
Kirchenrechts., vol. i, p. 181.

2 Euseb., Vita, 60, 62. ^ Soc, ii, 7 ; Soz., iii, 4 ; iv, 27.
4 Soc, iv, 7, 15; Soz., vi, 13, 14; Theod., iv, 15.

175] HERESY (CONTINUED) 65

new bishop. He replied, " That is an affair beyond my
strength. You, who are ordained with divine grace and are
ilhimined by its splendor, can decide better than I." The
result was the election of Ambrose, a catechumen and a
secular official, who formulated the clerical theory of the
immunity of the church from any secular control.^ This
policy of non-intervention in ecclesiastical affairs was con-
tinued by Gratian, and Honorius, in deciding the contest of
Eulalius and Boniface for the bishopric of Rome, made it
definitely the policy of the state in disputed elections.

When Pope Zosimus died in 418, the efforts to choose
a successor resulted in a double election. Honorius, in-
fluenced by the report of the city prefect, believed that
Eulalius was canonically elected and therefore banished
Boniface. But the friends of the defeated candidate ap-
pealed to the emperor in his behalf and Honorius ordered
his case to be re-opened at a synod to be held at Rome.
When the synod failed to make a decision, Honorius or-
dered another hearing at Spoleto and forbade either of the
rival candidates to return to Rome in the meantime. Eula-
lius disregarded this order and Honorius promptly banished
him and declared Boniface the legitimate Bishop of Rome.
To provide for similar cases in the future, Honorius now
issued an edict which declared that neither candidate of a
double election should be installed in office, but that one
" should remain in the apostolic seat whom the divine judg-
ment and universal consent shall choose in a new election." -

1 Theod., iv, 5, 6; Soc, iv, 30. The account of Socrates clearly
shows that it was customary for the emperor to influence elections.
Theodoret adds that the baptism and ordination were by order of the
emperor. This and the fact that Ambrose was a civil officer are re-
sponsible for the popular opinion that imperial influence caused his
election.

- Haenel, Corpus Lcgum, p. 239 ; Langen, Gesch. der romischen Kirchc,
vol. i, p. 763.

66 EDICTS OF THE THEODOSIAN CODE [ly^

In the east, imperial participation in elections continued.
Arcadius, with the consent of the people and clergy, called
Chrysostom to the seat of Constantinople.^ After the death
of Sisinnius none of the candidates found favor with
Theodosius the Younger and he caused Nectorius of
Antioch to be invested with the patriarchate." Under
Marcian and Leo elections were free, but Zeno and Justin
again made the episcopacy a part of their political patron-
age, while Justinian's legislation is notable for the absence
of any prohibition of political influence in elections.* The
result of these conditions was the formation of an intimate
relation between church and state in the east. The church
became subservient to the state, to whose interests its ideals
and work were deemed vital; while the independence of
the church from temporal control became the working
theory in the west — conditions of much significance in the
separation of the eastern and western churches.

The relation of the Bishop of Rome to the other eccles-
iastical authorities in the west was also a subject of civil
legislation which, like that on elections, was not incorpor-
ated in the Theodosian code.

The participation and leadership of the Papacy in eccles-
iastical affairs during the fourth century, and the attitude of
the church toward the Roman See are obscure and inde-
finite. The Council of Nicea designated Rome as a patriarch-
ate, but it did not state the extent of the jurisdiction of the

1 Soc, vi, 2.

2 Soc, vii, 30 ; cf. 39. Nicephorus, xiv, 47.

3 Nov., Ixxiii, c. i ; cxxviii, c. 2. For elections in which Justinian
exercised an influence, cf. Staudenmeier, Gesch. der Bischofswahlen, p.
46. This continual interference of the eastern emperors in episcopal
elections explains the omission of the edict of Honorius from the Theo-
dosian ccxie.

177] HERESY (CONTINUED) 67

Roman over other churches/ Eighteen years later the coun-
cil of Sardica declared that a bishop deposed by a provincial
synod might appeal to the Bishop of Rome, who should then
convene a new synod to investigate his case. But no means
for enforcing the decision of the synod or for reinstating the
deposed bishop were prescribed ; moreover, Sardica did not
represent the opinion of the entire church, and as Constan-
tius w^as hostile to the Athanasian clergy, its canons were
not observed.^ However, late in the century, when the
Athanasian party had acquired abiding influence at the im-
perial court, Gratian defined the authority of the Bishop of
Rome among the churches in terms very similar to the legis-
lation of Sardica.

The condition that gave rise to this definition of power
was the double election of Damasus and Ursinus to the See
of Rome which soon extended from an ecclesiastical quarrel
to an armed conflict in which blood was shed. The civil
authorities called the clerks to account for their disturbance
of the peace, but Valentinian I issued an edict, often cited
by ecclesiastical authorities, that clerks should be heard only
by clerks in matters of faith. ^ Yet the emperor, in response
to petitions of Damasus and his party, twice banished Ur-
sinus. That unfortunate prelate had, however, such a strong
following in Rome and southern Italy that when Gratian be-
came sole administrator of the west in 375, the emperor
deemed it necessary to renew the ban against him, and five
years later he confirmed the election of Damasus in an edict
which was probably issued at the instance of a Roman

1 Can. Nicca, 6. Rufinus, H. E., i .make the jurisdiction of Rome
extend over the Suburbicarian provinces. This was the territory pre-
sided over by the prefectus urbi, but the jurisdiction of the Pope prob-
ably included more than this. Cf. Hefele, Concilicn Gcschichte, vol. i,
p. 388 ; Loning, Gesch. des deutschen Kirchenrcchts, vol. i, p. 436.

2 C. Sardica, can. 3, 4. 5- " Ambrose, Ep., xxi, 2.

68 EDICTS OF THE THEODOSIAN CODE [178

synod. It declared that the sentence against one who " un-
justly wishes to retain his church " after being " condemned
by the judgment of Damasus, given with the advice of
five or seven bishops," shall be enforced by the civil author-
ities; and that in future all disturbances in the churches of
distant parts shall be decided by the metropolitan, or, if
the metropolitan himself is concerned, the case shall go
to Rome '' or before him whom the Roman bishop shall
indicate as judge;" and that if any priest or metropolitan
is suspended unjustly, he may appeal to the Roman bishop
or a council of fifteen neighboring bishops/ Two years
later Theodosius, as we have seen, urged upon his subjects
the acceptance of the faith professed by Rome; while the
council of Constantinople in 381 gave the Bishop of Rome
precedence over all other bishops.

A final and more definite statement of the authority of
the Papacy was made in the fifth century by Valentinian III.
Its purpose was to settle the rivalry of Aries and Rome for
the ecclesiastical leadership of the west, a rivalry which was
closely related to the political conditions of the age.

The military rebellions and depredations of the Germans
in Gaul during the later fourth and early fifth centuries were
a menace to the ecclesiastical as well as the civil administra-
tion. Therefore the Gallic clergy sought to form more in-
timate relations with Rome, and Innocent I took advantage
of this situation to claim for the See of Rome the highest
judicial authority in the church. But in the reorganization
of the Gallic provmces after the overthrow of Constantine

1 Mansi, iii, 627. It is sometimes claimed that the edict of Valen-
tinian extended the jurisdiction of the Bishop of Rome. This is hardly
true. He simply gave the church authorities the right to decide eccle-
siastical cases, while Gratian added the enforcement of ecclesiastical
decisions by the secular authorities. The present edict concerning the
Bishop of Rome was not observed in the church.

179] HERESY (CONTINUED) 69

the Usurper in 411, Constantius, Master of Horse under
Honorius, attempted to make Aries the centre of ecclesiastical
as well as of political administration. In this plan he was
supported, doubtless for political reasons, by Pope Zosimus,
who informed the Gallic clergy that the Bishop of Aries had
the exclusive right to ordain bishops in the provinces of
Vienne and Narbonne I and II, and supported Patroclus
of Aries in establishing his authority over the Bishop
of Marseilles/ But after the death of Constantine there
was a change in the attitude of the papacy toward the lead-
ership of Aries. Boniface I lent a willing ear to the appeal
of the clerks of Luteva who questioned the legality of the
ordination of their bishop by Patroclus; and Coelestinus
applied to conditions in Gaul the rule of Nicea, that each
metropolitan should be content with his own province."

The decisive period of this rivalry between Rome and
Aries was in the pontificate of Leo I. The political disorder
which followed the capture of Toulouse by the Visigoths in
419 and the constant menace of the Franks and Burgund-
ians on the northern frontier of Gaul resulted in ecclesiasti-
cal as well as political confusion. The unity of the Gallic
church, which represented social as well as religious inter-
ests, was threatened. Hilary, bishop of Aries, therefore
resorted to extreme measures to realize Patroclus's ideal
of an independent, unified Gallic church under the leader-
ship of Aries. He held synods, ordained and deposed
bishops of other provinces than his own, and was probably
assisted by the civil authorities.^ In 444 he caused the de-
position of Celidonius, bishop of Besangon, on charges of

1 Zos., £/>., i. Cf. Constitutioncs Sirmondi, vi, in which Valentinian
III recognizes the authority of Aries. (Haenel, Corpus Juris Ante
Justinianae, vol. iii.)

2 Bon., Ep., xii; Colest., £/>.. iv ; Loning, op. cit., vol. i, p. 472.

3 No7>. Vol., iii, 16.

70 EDICTS OF THE THEODOSIAN CODE [i8o

marrying a widow and of rendering a sentence of death be-
fore his ordination to the episcopacy. Celidonius ap-
pealed to Leo. Witnesses were found who testified that the
charges were false, and a Roman synod convoked by Leo
declared Celidonius innocent and restored to him his epis-
copal rights and honors.

This is the first instance of the bishop of Rome exercising
disciplinary authority over another metropolitan. The
right to appeal through him to a synod had been granted at
Sardica, but not the authority to enforce the synod's decis-
ion. Knowing that the claims of Aries had had the sup-
port of the civil power in Gaul, Leo forestalled any actions
thereby in behalf of Hilary by securing an imperial con-
firmation of the authority he had assumed. In an edict
Valentinian recognized the Bishop of Rome as the primate
of the church, declared Hilary's investiture of bishops an
offence "against the majesty of the empire and the honor
of the apostolic see," forbade any deviation from ecclesias-
tical custom without " the authority of the venerable Pope
of the Eternal City," and ordered the secular officials to
enforce, if necessary, the obedience of bishops to a citation
to " the court of the Roman bishop." ^

Thus, as the empire declined, the autonomy of the church,
its independence from secular control and the leadership of
the Bishop of Rome as its supreme head and authority were
recognized in the jurisprudence of the west. The signifi-
cance of this policy, the sanction by the empire of a social
and political force which was to supplant it in the direction
of human destinies, is more fully realized by a consideration
of the purely secular phases of the ecclesiastical legislation
preserved in the code of Theodosius.

1 Nov. Vol., iii, i6. The conditions and events in Gaul during the
period of the controversy of Rome and Aries are obscure. I have fol-
lowed Loning, G. d. d. K., vol. i, pp. 463-499.

CHAPTER IV

The Relation of the Church to the Social Organ-
ization OF the Empire

The relation of the church to the economic and social
structure of society has long been a problem of practical
as well as speculative interest. The exemption of its prop-
erty from taxation and its corporate privileges, the immun-
ity of its officials from services to the state, the claim of its
courts to exclusive jurisdiction over the litigation of all its
servants — these problems of mediaeval and modern gov-
ernment have their origin in the generosity of the Roman
emperors. Indeed, their liberality speedily resulted in un-
foreseen perplexities with which legislation was not able
to cope.

In the fourth century Roman economic and administra-
tive development reached a crisis. Political centralization,
the establishment of a system of public works, the main-
tenance of a great army and the extravagance of the em-
perors had increased the amount and variety of taxation to
such an extent that, by the opening of the fourth century,
the farmers, in many places, could not afford to till the soil,
nor the artisans to continue their industries. There were
two possible remedies for the situation : a radical change in
the existing administrative policy or the maintenance of ex-
isting conclitions through central control and governmental
guidance of individual activity. The latter course was
adopted by Diocletian and Constantine. Their solution of
the economic problem was to force the individual, who could
i8i] 71

72 EDICTS OF THE THEODOSIAN CODE [182

no longer work for his own advantage, to work for that of
the state. They therefore assumed control of industries and
prevented the amelioration of the fortune of the citizen by-
making professions hereditary. The soldiers in the army,
the workmen in the mines, the coloni on the plantations, as
well as the higher classes, were bound to their positions in
life, and their sons inherited their duties and obligations.^

The caste-like organization which society was gradually
assuming is well illustrated by the fate of the curiales.
Originally they were members of the municipal senates com-
posed mainly of those who had held offices; but with the
centralization of government and the increasing need for
revenue their ranks were recruited through appointments
made by the imperial officials, and finally Constantius, in 342,
made the curial order include all land-holders of fifty acres."

The significance of this legislation is realized when the
obligations of the curiales are examined. In addition to
taxes on property and the responsibilities of local adminis-
tration, they were burdened by obligations to the central
government. These were the munera, or liability for ser-
vices on the roads and public works, etc. ; the duty of ap-
portioning and collecting the taxes levied by the imperial
fiscus, and the responsibility for all deficiencies in the
revenue which they were required to collect. Therefore,
the duties of the curiales were made hereditary, from which
escape was only possible after an individual had gone
through the routine of all official duties to which his mem-
bership in the curial class might make him liable. Then
he might enter the new senatorial order created by the

1 There is an excellent summary of these conditions by Wm. A.
Brown in The Political Science Quarterly, vol. ii, no. 3, under the title,
" State Control of Industry in the Fourth Century."

2 Marquardt, Romische Staatsverwaltung, vol. i, p. 190. C. Th., xiii,
h 33-

183] THE CHURCH AND SOCIAL ORGANIZATION 73

emperors, in which he was exempt from municipal burdens,
from torture and from service on the pubHc works, but he
was still subject to the land-tax, gifts on certain anniver-
saries, and, if appointed to offices, to expenses for public
games.

In this society where the individual was oppressed with
ever-increasing obligations to the state, there were privi-
leged classes. Teachers, rhetoricians, priests and physi-
cians were granted immunity from personal burdens
(munera) by various emperors because their services were
regarded as contributions to the public welfare.^ To these
privileged classes Constantine added the Christian clergy.
In a letter to Anulinus, Proconsul of Africa, he directed that
those who give their services to the worship of the divine
religion, and who are commonly called clergymen, be en-
tirely exempt from all public duties (omnibus omnino publicis
fimctionihus) in order that they may not by any error or
sacrilegious negligence be drawn away from the service of
the Deity, but may devote themselves without any hindrance
to their own law.^ These privileges were extended to the
entire clergy in 319, but heretics were excluded from enjoy-
ing them in 326. In 330 readers and subdeacons who had
suffered at the hands of the heretics were included in the
exempted class. ^

1 Kuhn, Die stddtischc und hiirgcrUchc Vcrfassung des rom. Reiches,
pp. 183, 106.

2 Euseb., H. E., x, 7.

8 C. Th., xvi, 2, 2. Qui divino cultui ministeria religionis impendunt,
id est hi, qui clerici appelantur, ab omnibus omnino muneribus excu-
sentur, ne sacrilegio livore quorundam a divinis obsequiis avocentur
(319). Ibid., 5, I. Privilegia, quae contemplatione religionis indulta
sunt, catholicae tantum legis observatoribus prodesse oportet. Haere-
ticos autem atque schismaticos non solum ab his privilegiis alienos esse
volumus sed etiam diversis muneribus constringi et subiici (326).
Ibid., 7.

74 EDICTS OF THE THEODOSIAN CODE [184

This immunity from the economic obhgations of citizen-
ship was extended to the property of clerks by Constantius,
who excused it from Habihty to new collations, extraordin-
ary superindictions, the imposts on trade and industry, con-
tributions for the support of the army, public works, and
all the responsibilities of curial property.^ Indeed, not
only clerks, but their wives and children were likewise re-
lieved from curial obligations, showing- that the tendency
in the new fortunes of the church was to make the privileges
of the clergy, like those of other professions, hereditary.^

The Arian party, always in a minority in the west, na-
turally had no sympathy for the immunities from which its
opponents derived all the benefit. This perhaps explains
Constantius's revival of Coiistantine's legislation in 354, pro-
viding that only those clerks who had no possessions should
be exempt from curial obligations.'* A little later the ac-
ceptance of an Arian creed was forced on the synod of
Milan, while the Arians of Rome expelled Pope Liberius
from the city and elected an anti-pope. But the people
were not in sympathy with the movement and in 357 Liber-
ius was recalled. The abrogated ecclesiastical privileges
were then restored to the church of Rome and three years
later, in reply to a petition of the council of Ariminum, they
were renewed in the interest of the entire church.* The
legislation authorizing them, like the other ecclesiastical
laws of Constantine and Constantius, was rescinded by
Julian, but it was revived by Valentinian, and its exemp-
tions were extended to the lower orders by Gratian.^

1 C. Th., xvi, 8, 9, 10. There is no mention of the exemption from the
capitation tax levied on property as well as persons.

- C. Th., xvi, 2, 9. " Filios tamen eorum, si curiis obnixii non tenen-
tur, in ecclesia perseverare. Cf. 10. Quod et conjugibus et liberis eorum
et ministeriis, maribus pariter ac feminis, indulgemus, quos a censibus
etiam iubemus perseverare immunes."

3 C. Th., xvi, 2, II. *'Ibid., 2, 13, 14, 15. ^ Ibid., 15, 18, 24.

185] THE CHURCH AND SOCIAL ORGANIZATION 75

As soon as tliese privileges were granted, two problems
arose which necessitated restrictive measures. First, the ex-
pansion of church membership increased the number of the
clergy, over whose choice the emperor exercised no control.
Accordingly the state was deprived of the services of a
large and increasing class of citizens whose immunities
tended to become hereditary. On the other hand, many
curialcs sought refuge from their economic burdens by en-
tering the ecclesiastical orders.

Therefore, Constantine, in 320, forbade curiales or those
able to perform the duties of curiales to enter the service
of the church, the context of the edict implying that there
had been similar legislation previously;^ and another law
of the same character was enacted six years later." In ex-
planation of these restrictions of clerical privileges Con-
stantine stated the relation which the church should sustain
to secular society in tlie following sentences : " Those
should be chosen to the places of deceased clerks who are
poor in fortune and may not be held subject to civil obli-
gations." " The rich ought to bear the burdens of the
world, the poor ought to be supported by the riches of
the church."

These restrictions were not observed nor was Constan-
tine's idea of the social service of the church realized. The
church was more than a benevolent institution, and its offices
were something more than a livelihood for those poor in
worldly goods. Curialcs continued to find their way into
clerical orders, and so escaped their economic responsibili-
ties. Constantius therefore subjected clerical property to

1 C. Til., xvi, 2, 3. Note the opening words : "' Cum constitute emissa
praecipiat."

2 C. Th., xvi, 2, 6.

76 EDICTS OF THE THEODOSIAN CODE [i86

the regular taxes, restored the property of curiales who had
become clerks to curial obligations and required the owners
tered ecclesiastical service with the consent of their fellow
curiales.'^ Valentinian I also required curiales who had
taken orders during his reign to resume their public obliga-
tions and forbade " rich plebeians to be received by the
church." ^ Violations of the expressed policy of the state
continued, but through the influence of Ambrose Theo-
dosius pardoned those guilty prior to 388, while the property
of later offenders was confiscated to the fiscus.^ In 399
Arcadius required all curiales who had risen to the rank of
bishop, presbyter, or deacon since 388 to furnish a substitute
to their curia or to relinquish their property; and those in
the minor orders were to be immediately subject to their
obligation to the state.^ A similar edict was issued by
Theodosius the Younger, while Valentinian III forbade
curiales to take orders on any conditions, and also estab-
lished the rule that no one whose property exceeded 300
solidi should enter ecclesiastical service. The archdeacon
was charged by Majorian to correct all violations of this
law.^

The relation of the clergy to the mercantile profession
was also a subject of legislation. Because " it is evident
that the profits they make in their shops and places of
business will be given to the poor," Constantius exempted

1 C. Th., xvi, 2, 15; viii, 4, 7; xii, i, 49.

2 Ibid., xvi, 2, 17, 19, 21, 22. 3 Ibid., xii, i, 121.

* C. Th., xii, I, 163. Deposed clerks were also forced to assume
curial obligations, but they were not permitted to serve in any civil or
military office, xvi, 2, 39.

^ Ibid., xii, I, 172; Nov. Vol., iii, 3.

187] THE CHURCH AND SOCIAL ORGANIZATION yy

clerks from taxes on trade.^ But his idea of the altruistic
character of the clergy changed in his later years, and he
limited the exemption to occupations whose only object was
to supply the necessities of life.- In the readjustment of
ecclesiastical affairs after the death of Julian, this exemp-
tion was not revived by Valens in the east, but Gratian
granted it in the west in case of transactions not exceeding
10 solidi.^ Under Honorius the privilege was revived, but
finally Valentinian III revoked all immunity from taxation
in the case of clerks engaging in trade.*

In conferring on the clergy immunity from civic obliga-
tions Constantine and Constantius evidently produced con-
ditions which legislation could not control. But this was
not the result of any direct opposition by the church to the
policy of the state. Indeed, the relation of the clergy to the
social orders presented an ecclesiastical as well as a political
problem. The immunities of the profession led many to
enter its service for worldly and unconsecrated purposes.
Consequently Pope Leo I saw in Valentinian Ill's prohibi-
tion of ciu'ialcs entering the priesthood a protection to the
church. He consequently advised that curialcs who had
taken orders to avoid their civil obligations should be de-
posed, and that those engaging in military service after bap-

1 Ibid., xvi, 2, 14. " Et cum negotiatores ad aliquem praestationem
competentem vacantur, ab his universis istius modi strepitus conqui-
escat; si quid enim vel parcimonia vel provisione vel mercatura, hones-
tati tamen conscia, congesserint, in usum pauperum atque egentium min-
istrari oportet, aut id, quod ex corundum ergasteriis vel tabernis con-
quiri potuerit et colligi, collectum id religionis aestiment lucrum."

- C. Th., xvi, 2, 15.

^ Ibid., xiii, i, 5, 6, 11. Valens had a similar conception of the ser-
vice of the church to that of Constantine and Constantius. "Christianos
quibus si varus est cultus adiuvare pauperes et positos in necessitatibus
volunt." (5)

■* Ibid., xvi, 2, 36 ; Nov. Vol., xxxiv, 4.

78 EDICTS OF THE THEODOSIAN CODE [i88

tism should not be admitted to orders.' The fourth council
of Toledo excluded from the episcopacy those " bound to
the obligations of a curia," who have not risen from the
lower orders or are under thirty years of age. These rules
of the fifth century were in the twelfth century incorporated
in the Decretiim by Gratian as precedents for later ages.

The attitude of the church toward clerical industries also
coincided with that of the state. In the first and second
centuries, while the church was an obscure and unpopular
institution, its officials depended on their individual labor
or some secular profession for a livelihood, but with the
increase of membership and wealth in the third century, a
feeling arose against the combination of spiritual and
worldly professions. It was not prompted by a belief in
the unworthiness of secular pursuits, but by a conviction
that the spiritual duties of the priesthood were sufficient to
demand all the time of the clergy.^ In the fourth century
the synod of Elvira forbade bishops, priests and deacons to
leave their province for purposes of trade; a Donatist coun-
cil at Carthage forbade clerks to engage in any secular oc-
cupation, while Jerome and Augustine complained that the
spiritual duties of the clergy suffered on account of secu-
lar pursuits.^ The exemption of clerks from taxes on

1 Decretum, pars i, dist. 51 ; cf. Ivo Chart, Decret., iv, 349. A similar
comparison might be made of the attitude of church and state toward
the entrance of slaves into clerical service. The apostolical canons re-
quire that no one not his own master should become a clerk (c. 82).
Leo I forbade the ordination of slaves without their masters' consent
(£). dist., 54, c. i). Valentinian III forbade the ordination of tenants,
slaves and coloni. But if a member of these classes should become a
clerk and remain in orders thirty years or rise to the episcopacy, his
master could not seize him, but he might claim his pcculium. Nov.
Val., iii; xxiv, 3. Cf. D. dist., 54, cc. 6-9.

2 The sources of this sentiment were Cyprian and Tertullian.

3 Elvira (306), c. 19; Carthage (348); Jerome, Ep., 52, c. 5; Aug.,
Sermo, 85.

189] THE CHURCH AND SOCIAL ORGANIZATION 79

trade was therefore made in consideration of the custom
and conditions of the early centuries of the church, and its
removal was in accord with the better sentiment of the age.

While the exemption of clerks from personal burdens and
liability to certain forms of taxation and the withdrawal of
similar privileges from the pagan priesthood by Gratian
made the clergy a privileged class in a society notable for the
number and variety of its economic obligations, the institu-
tion they served received a similarly distinctive character by
the recognition of its right as a corporation to receive dona-
tions and testamentary bequests.

The recognition of the corporate rights of the church
antedates the reign of Constantine, a fact often neglected
in forming an opinion of the material fortunes of the
church in the age of its persecution. The Htigation of the
Christians of Rome wath the corporation of inn-keepers, the
decision in their favor by Aurelian, and his award of prop-
erty claimed by Paul of Samosata " to those who are in
communion w'ith the bishops of Italy and the Bishop of
Rome," as well as Valerian's confiscation of ecclesiastical
property and its restoration by Galerius, clearly show that
the property rights of individual churches were recognized
in the third century.^ After the persecution of Diocletian
Maxentius authorized Pope Miltiades to reclaim the prop-
erty of the church confiscated since 304 and Licinius granted
the same privilege " to the corporation of Christians " in
the east. These facts are evidences of the legal recogni-
tion of corporate privileges in the fourth century previous
to the legislation in the Theodosian code."

The character of these corporate rights is not definitely

1 Lampridius, Alex. Sev., 49; Euseb., H. E., vii, 30, 19. Ibid., vii, 13.

2 August, Brev. Coll. cum Donat., iii, 34; Lactantius, De Moriibus
Pcrsecutorum, 48.

8o EDICTS OF THE THEODOSIAN CODE [190

known, but some appreciation of them may be formed by-
considering- the nature of Roman corporations and making
a comparison with ecclesiastical conditions.

The right of organizing societies and corporations was un-
restricted under the Republic. On account of the activity of
political clubs in the civil wars, Augustus, by the Lex Julia,
dissolved all collegia except the ancient industrial guilds
which tradition associated with Numa Pompilius, and pro-
hibited new corporations to be formed without the consent
of the emperor. These privileged collegia were of two
classes, collegia tenuiorum, societies formed for purposes
of charity and mutual aid, principally by the workingmen,
and collegia sodalitatum, which combined with benevolent
aims social pleasures. The enforcement of the Lex Julia
varied according to the policy of each emperor. Thus
Trajan was active in the suppression of illegal corporations,
Hadrian made an exception in favor of charitable societies
at Rome, and Septimius Severus extended this privilege to
the provinces. Marcus Aurelius granted licensed collegia
the rights of juristic persons and Alexander Severus gave
them the right of representation by a defensor. They were
thus brought under the control of the Roman administrative
system and the greater toleration so gained is indicated by
the fact that, with the reign of Alexander the words coire
licet are no longer found in the inscription of the Collegia.

Since there is no account of the confiscation of ecclesias-
tical property previous to the persecution of 257, it is prob-
able that the churches preserved their corporate possessions
and legal interests as collegia, either as collegia temiiorum
or as simple religious societies, which societies were gen-
erally tolerated.^ The inscription that records the gift of

1 Cf. Liebenam, Zur Geschichte und Organisation des rom. Vereins-
wesen.

2 Dig., xlvii, 22, I.

191 ] THE CHURCH AND SOCIAL ORGANIZATION 8l

a cemeter}' to the church of Caesarea is similar to the form
by which burial land or places of assembly were given to
collegia; and there are reasons to believe that Christian con-
gregations were publicly and legally known under such
vague terms as cultores verhi, or ecclcsia fratrum, quite in
keeping with the names of many collegia tenuiorum} Ter-
tullian wrote his apology during the reign of Septimius who
was friendly to the collegia and this explains the language
with which he describes the Christian communities and
pleads for their toleration. The Christians make contribu-
tions (stipem) to their treasury (arcein) each month {men-
strua die), and they should receive a "place among the
legally tolerated societies " for, when " the virtuous meet
together, when the pious, the pure-minded assemble in con-
gregation, they should be called not a faction but a curia." ^
Some years after Tertullian wrote, the jurist Ulpian made
membership in an illicit collegium equivalent to crimen
majesfatis; and a similar popular conception of Christianity
may explain the charge of sacrilege and treason from which
Tertullian defended the Christians.'' Moreover, that the
names of the bishops of Rome were inscribed on the regis-
ters of the city prefect, and that the names of provincial
bishops were also probably preserved on the registers of

''^ Corpus Inscriptionum Latinartim, viii, 9585; De Rossi, Roma Sot-
teranea, vol. i, p. 107. Pagan collegia were known as cultores Jovis,
Herculis, etc.

2 The words stipem, arcem, menstrua, are also found in the inscrip-
tions of the collegia. Orelli-Henzen, Collectio Inscriptionum Latin-
arum, 6086. Curia in the African dialect corresponds to collegium in
that of Rome.

^ Dig., xlvii, 22, 2. Cf. xlviii, 4, i. The charge of sacrilege was a
popular one. Legally it was injury to sacral property, but the Chris-
tians were never found guilty of such an offense. This popular con-
ception of sacrilege found its way into the code as injury to property
of the Christian church. C. Th., xvi, 2, 25, 31.

82 EDICTS OF THE THEODOSIAN CODE [1^2

provincial governors, as well as the fact that the property-
rights of the church w^ere recognized by various emperors,
are best explained by the existence of Christian churches
as licensed corporations.^ This does not signify a legal re-
cognition of Christianity, for the name Christian would not
be taken by the collegia, nor does it mean that the character
of Christian institutions was in any way modified by pagan
foundations; but under some such fictitious title as those
mentioned above, the churches might secure the right of
assemblage and of holding property and thus ecclesiastical
organization might survive the severe persecution of the
second and third centuries.^

Under Constantine the privileges enjoyed by the churches
as private collegia or, temporarily, as public foundations
under Diocletian and Licinius were succeeded by similar
privileges as legalized religious corporations. To Roman
citizens the right was given to leave at death to " any of
the most sacred and venerable Catholic churches " what-
ever they desired.^ By this edict the church received a far
more extensive privilege than any of the religious founda-

1 Vigneaux, Essai sur I'histoire de la prefecture urbis, p. 140. De
Rossi, Roma Sotteranea, vol. ii, pp. vi, ix.

2 De Rossi holds that the churches adopted the organization of the
collegia tenuiorum exclusively. He has been criticised by Duchesne,
Les Origines chretiennes. Waltzung holds that the churches were re-
ligious corporations which were not licensed but were allowed to exist.
{Les Corporations de I'ancienne Rome et la charita.) Cf. the work of
Liebenam already mentioned.

3 C. Th., xvi, 2, 4. Habeat unusquisque licentiam, sanctissimo cath-
olicae venerabilique concilio decadens bonorum quod optavit, relinquere.
Non sint causa indicia, etc. Concilio refers to an individual place, not
an institution. Thus, Symmachus speaks of the concilium patrum for
the senate and Tertullian uses the word for a temple. That Constan-
tine 'did not recognize one universal church is evident from the inter-
changeable uses of the words ecclesia and ecclesiae. Cf. xvi, 2, 34, 38.
His desire to exclude the heretical churches from the privilege of the
law is probably responsible for its wording.

193] ^-^^ CHURCH AND SOCIAL ORGANIZATION 83

tions of paganism. These could only receive gifts or alien-
ate property by consent of the people and with special cere-
monies ; and, with a few exceptions, never acquired the right
to accept testamentary benefactions. As a justification of
this extraordinary privilege it was stated that " nothing
should be dearer to men than that the writing of their
last wish, after which they will not be able to write again,
should be unrestricted and their will, which may not return
again, should have free play." ^

This privilege, like the immunities of the clergy, was sub-
ject to abuse and corruption. The age was one of religious
enthusiasm and generosity, which were encouraged by the
teaching of the churchmen. Augustine urged Christians to
remember Christ as well as their sons in their last bequests.
Parents often gave all their property to the church, leav-
ing their children in want and hunger, and Jerome presents
a sad picture of the clergy of Rome visiting the houses of
rich matrons to solicit gifts." Valentinian, therefore, or-
dered the confiscation of gifts and legacies of widows and
minors that had been solicited by priests and monks. ^
Twenty years later Theodosius forbade the appropriation of
the property of a widow or deaconess to religious purposes
or the execution of their legacies to that effect, reserving

1 The church was also given the right of being represented in the
courts by an advocate, or civil representative, instead of an ecclesiastic,
for which privilege the similar right of pagan foundations was the
precedent. Cf. C. Th., xvi, 2, 38 (of Honorius), and Godefroy's com-
ment.

2 Aug., Sermo, 355, c. 4; Ep., 262; Jerome, Ep., 52. The law of the
Falcidian Fourth protected the legal heirs from complete disinheritance.
But the Sentences of Paul allow this rule to be applied only after gifts
to the gods have been deducted. It is probable that a similar custom
was observed in the case of testaments of the church. Cf. Lex Roniana
Visigothorutn (ch. vi of this monograph).

3 C. Th., xvi, 2, 20.

84 EDICTS OP THE THEODOSIAN CODE [194

their property to the heirs, relatives and creditors.^ But
ecclesiastical influences were strong enough to secure the
repeal of the law two months after its enactment and
Theodosius the Younger allowed the church to inherit the
property of clerks who died without testament or heirs. ^
Finally, Martian permitted widows, deaconesses and nuns
to leave by testament, Mei commissa, or codicil, whatever
they pleased to churches, bishops, clerks or deaconesses.^

The recognition of the corporate rights of the church
suggests the problem of the taxation of its property. While
no legislation by Constantine on this subject remains, his
association of the churches with the imperial patrimony sug-
gests that church property in some instances enjoyed similar
privileges.* The synod of Rimini petitioned Constantine
for the exemption of church property from taxation but the
request was not granted.'^ Still, church property enjoyed
some economic privilege, doubtless through its association
with clerical property, for Gratian declared it to be subject
to extraordinary taxes but exempt " by ancient custom "
from obligations to furnish food and means of transporta-

1 C. Th., 2, 27. This edict also fixes the age of deaconesses at sixty
years and prohibits women to tonsure their heads.

^ Ibid., xvi, 2, 28; V, 3, I.

3 Nov. Mart., v.

* C. Th., I, I. This edict states that, with the exception of private
properties, the Catholic churches and the families of the ex-consul and
Master of Horse Eusebius and Assacus, king of Armenia, no one shall
be aided by emoluments of houses and sustenance. Interpretations of
the edict differ. Godefroy saw in it exemption of church property
from taxation. But as neither Eusebius nor any of the ecclesiastical
historians mentions such a privilege, this cannot be its meaning. Lon-
ing suggests that it probably refers to gifts of grain and provisions.
Cf. Theodoret, H. E., i, 10; Euseb., x, 6. Taxes on church property
might have been occasionally remitted in case of need, but there is no
legal exemption by Constantine.

s C. Th., xvi, 2, 15.

195] THE CHURCH AND SOCIAL ORGANIZATION 85

tion for the palace and army, grain for distribution in the
cities, service on pubHc buildings, wood and fuel for the im-
perial factories and other miincra.^ Honorius extended
the exemption to service on roads, the repair of bridges,
and extraordinary superindictions.^ This exemption of a
vast and increasing property from so many obligations re-
sulted in a serious decline of public revenues; hence Theo-
dosius the Younger imposed on the church the care of
bridges, roads and streets, while Valentinian III removed
all exemptions from public burdens.^

When the privileges conferred on the church and clergy
are considered in relation to the social problems of the age,
they leave the impression that they increased the disintegrat-
ing forces in Roman society. The one hundred and ninety
edicts of the code which treat of the curiales give a vivid
picture of the decline of the middle class. On the other
hand, the senatorial order was increasing in wealth, and
the cumbersome administrative machinery was too corrupt
for any legislation to purify. Salvian, the garrulous priest
of Marseilles, the only writer of the fifth century inter-
ested in the economic and social problems of his time, de-
scribes the feeling aroused by legislation. According to
him the poor pay tribute to the rich, the weak bear the bur-
den of the strong. Two or three determine what may
bring injury to all, a few mighty ones make decisions which
bring misery to the multitude. The people, united by tra-
dition and the associations of a common fatherland, are
alienated in sympathies. One can not be happy without
bringing unhappiness to his neighbor, the individual's in-
terests absorb all consideration for his fellowman. Yet his
solution for the evils he saw was not a renewed patriotism,

1 C. Th., xi, 16, 15. ' Ibid., xvi, 2, 40.

8 Ibid., XV, 3, 3 ; Nov. Val, x.

86 EDICTS OF THE THEODOSIAN CODE [ig6

but a greater love and generosity for the institution he
served.^ The church, therefore, by laying stress on the dis-
tinction between clergy and laity, by securing privileges
which exempted its officials and property from the common
fortune of the people it professed to serve, must have in-
creased the confusion of interests which already existed.
This conjecture is confirmed by an examination of the par-
ticipation of the episcopacy in the administration of justice
and the attitude of the clergy toward the jurisdiction of the
civil courts.

1 Cf. Salvianus, De Gubcrnatione Dei, Liber iii, for his criticisms of
social conditions. For his solution, cf. Adversum Avaritiani. There he
finds the root of all evil in that spirit of avarice which withholds from
God and the church the wealth that should be devoted to religious and
charitable purposes.

CHAPTER V
The Episcopal Courts

The imperial administration rendered a distinct and
abiding service to Roman civilization by its influence on
the evolution of law. It unified the custom of city and pro-
vince, eliminated the antithesis between the rules of civil
and official law, and infused a new spirit of humanity into
the legal life of the empire by subjecting it to the guidance
of one supreme authority.

But these beneficent results of the centralization of justice
were not attained without incurring certain evils and abuses.
Chief of these were technicalities of procedure and delay in
justice incidental to the centralizing process and the for-
mation of a system of appeals. Salvian regards the fail-
ure to obtain justice in the courts as one of the causes
leading the unfortunate to leave their country and to seek
homes among the barbarians.^ Ammianus Marcelinus des-
cribes the lawyers as people

who promote every variety of strife and contention in thous-
ands of actions, wear the door-posts of widows and the
thresholds of orphans, create bitter hatred among friends, rela-
tives or connections who have a disagreement, mystify the

1 De Guhernatione Dei, v, 5. Priscus, a Greek historian of the fifth
century, found a Greek captive among the Scythians " who considered
his new life . . . better than his old life among the Romans." One
reason for this was the corrupt condition of the courts; another the
inequality in taxation among the Romans. Cited by Bury, Later Roman
Empire, vol. i, p. 28.

197] 87

88 EDICTS OF THE THEODOSIAN CODE [198

truth, prepare seven costly methods of introducing some well
known law,

and conclude their argument by declaring that " the chief
advocates have as yet had only three years since the com-
mencement of the suit to prepare themselves to conduct it,"
and so obtain an adjournment/ Although this statement
is evidently colored by the soldier's antipathy for civil
life, it represents, to some extent, the conditions that pre-
vailed. Indeed, the court system and the question of ap-
peals were subjects of frequent legislation by Constantine
and, in order that " unfortunate men, involved in the evils of
long and almost perpetual actions at law might soon escape
from evil appeals and exacting cupidity," he sanctioned and
introduced into the legal system of the empire the episcopal
court, an institution characteristic of the life of the early
church.^

The ideals of Christianity demanded that all problems
of human life should be decided according to its standards.
To this end the teachings of Jesus recommend a procedure
in disputes among his followers different from that of the
law courts, and St. Paul declared that the saints were more
worthy to act as judges than the unjust.^ The Didake or
Teaching of the Twelve Apostles, which represents the
Christian life of the second century, forbids " one who has
a dispute with his fellow " to commune with his congrega-
tion, nor should any one speak to him until his repentance.*
Tlie result was the development of a jurisdiction of the con-
gregation over other than the moral actions of its members.

1 Historia Annorum, xxx, 4.

^ Constitutiones Sirmondi, i (331). Cf. scq., p. 90, foot-note. For
legislation on appeals, C. Th., ix, i and xi, 30.

3 Matt., 18, 15-17; I Cor., 6, 1-3. ^Didake, 14, 2; 15, 3.

igg] THE EPISCOPAL COURTS 89

The so-called apostolic constitutions, an epitome of Christian
tradition and practice of the third and fourth centuries, re-
veal a well-developed administration of justice. Minor
suits and difficulties were heard by the deacons, more serious
ones by the bishop, who, each Monday, surrounded by dea-
cons and presbyters, heard pleas and rendered decisions/
The rules which guided the bishop and the officers assisting
him were not those of the common law, but were suggested
by the spiritual conceptions of Christianity. These re-
quired that the rulers of this world should not pass sentence
on the Christian; if possible the contending parties should
be reconciled without the judgment of the bishop; but his
sentence, once rendered, must be accepted as final, on pain
of excommunication, for whom he punishes and separates
" is rejected from eternal life and glory, . . . dishonorable
among holy men, and one condemned by God." "

The freedom from the limitations of the common law and
the voluntary character of the litigations in the episcopal
courts suggest an institution of Roman public life.

In early Indo-European law there was a custom by which
two parties submitted their dispute to the decision of a third.
This was accompanied by the deposit of a pledge which fell
to the party in whose favor the decision was made, later to
the arbitrator. If the unsuccessful litigant were dissatisfied,
he might appeal to the people; but contemporaneously with
the rise of a system of courts, the arbitrator found means
to have his sentence enforced by the state; in fact, this cus-
tom was one of the essential factors in the transition from
justice administered by self-help to orderly adjudication by
the state. A survival of it is found in the Roman institution
of rcccpti arbitri, by which the litigants voluntarily make
two contracts, one between themselves, another with the

1 Const. A post., u, 44-51. - Ibid., ii, 47.

^O EDICTS OF THE THEODOSIAN CODE [200

arbitrator. This settlement of cases outside the courts, ac-
cording to principles independent of (though not in conflict
with) the formal law of Rome, was recognized in the ad-
ministration of justice by the praetor. If one party failed
to observe the contract, the other by a civil action {actio
de stipidatio) invoked praetorian interference. On the other
hand the praetor, as guardian of the law, limited the cases
which might be submitted to this extra-judicial arbitration
and made certain rules for its procedure. While the epis-
copal court was extrajudicial in character and was not re-
cognized as a source of justice, it is evident that if the
litigants entered into a contract before submitting to the
bishop's arbitration, the successful party in the suit might
call upon the civil authorities to enforce the decision.^

These two institutions, the recepti arbitri and the epis-
copal court, form the basis of two edicts by which Con-
stantine gave the episcopal courts a place in the judicial
system of the empire.- While ten years separate them, the

1 The institution of recepti arbitri has been well treated by Matthias,
Die Entwickelung des romischen Schiedsgcrichtes, in the Festschrift zum
funfsigjdhrigen Doctorjiihildum von Bernard Windscheid. Rostock,
1888.

2 These are the seventeenth and the first of the Constitutions of Sir-
mond, a collection of imperial edicts made in the seventeenth century by
Sirmond, the French ecclesiastic and jurist. The source in which he
found them was the conciliar records of the sixth century, where they
were cited in demand for favors and privileges from the Germanic kings.
Some of them are found in the Theodosian code, some are not. Among
the latter, by far the most important are those under discussion. (The
constitution of 331, however, had been published previously by Cujas
in his edition of the Theodosian code.) Godefroy, the editor and com-
mentator of the Theodosian code, questioned the authenticity of these
two edicts of Constantine. He believed them to be ecclesiastical forr
geries; but Haenel has successfully defended them in his edition.
{Corpus Juris Ante-Justiniani, vol. iii, p. 140.) He believes the con-
stitutions were originally a part of the first book of the Theodosian
code, but on account of their subject-matter late manuscripts placed

20l] THE EPISCOPAL COURTS 9I

later edict is an interpretation of earlier legislation which
probably included an edict that has been lost.' They should
therefore be regarded as defining an existing institution, not
as successive steps in its 'formation.

By this legislation the episcopal arbitration was trans-
formed into a legal mode of procedure. " Unfortunate
men involved in long and almost perpetual actions at law "
were given the privilege of removing their litigation at any
stage of a civil process to the bishop, even against the will
of their opponents.^ Since the execution of the bishop's
decision was through the regular courts and his opinion
was given the sanction of the emperor as an interpretation
of law, the place given him in the system of justice was
similar to that of the judges of the public law courts.'
Moreover, the conception of his office as arbitrator was that
of an authority transcending the regular civil courts, for the
justice he administered arose from his individual conception

them as an appendix to the sixteenth book, and on account of the
transcription they were for a time lost. According to the edition of the
Theodosian code by Mommesen and his students they form a collection
older than the Theodosian code, perhaps were one of the sources used
by its compilers.

1 Religionis est, clementiam nostram sciscitare voluisse, quid de sen-
tentiis episcoporum vel ante moderatio nostra censuerit vel nunc servari
cupiamus. Sirmondi, i {anno 331)-

~ Quicunque itaque litem habens, sive possessor sive petitor erit, inter
initia litis vel decursis temporum curriculis, sive cum negotium pero-
ratur, sive cum iam coeperit promi sententia, indicium eligerit sacro-
sanctae legis antistitis, illius sine aliqua dubitatione, etiamsi alia pars
refragatur, ad episcopum cum sermone litigantiam dirigatur. Cons.
Sir., I.

3 Itaque quia a nobis instrui voluisti, olim prorogatae legis ordinem
salubri rursus imperio propagamus. . . . Sive itaque . . . ab episcopis
fuerit iudicatum, apud vos, qui iudiciorum summam tenetis, et apud
ceteros omnes indices ad exsecutionem volumus pervenire. (Sirm., i.
Cf. Soz., ii, 9.) Testimonium etiam, ab uno licet episcopo perhibitum,
omnes iudices indubitanter accipiant, nee alius audiatur, cum testimon-
ium episcopi a qualibet parte fuerit repromissum. {Cons. Sir., i.)

92 EDICTS OF THE THEODOSIAN CODE [202

of right and wrong; and as not even minors could appeal
from his decision, he enjoyed a wider range of action than
the civil judge; indeed, in this respect his jurisdiction was
equal to that of the pretorian prefect/

This recognition of the episcopal court as a source of
secular justice is unique in the history of Roman jurispru-
dence. No civil court was ever given such unlimited au-
thority. Since the first legislation upon the subject is lost,
no definite and satisfactory interpretation of the bishop's
position is possible. In view of the fact, however, that tra-
dition prevented Christians applying to secular courts, it is
not improbable that the bishops regarded the privilege given
them by Constantine as a step toward securing exemption
of the clergy from the civil courts.

After forcing the members of the synod of Milan in 354 to
excommunicate Athanasius and to subscribe to the Arian
creed, which he also required all bishops of the realm to
accept, Constantius guaranteed an end of persecution by
prohibiting the accusation of bishops in the public courts.
But the purpose of his edict was not clearly stated, and a
literal interpretation conferred exemption on bishops from
the jurisdiction of the criminal courts. In it we find the
origin and precedent for that examination of criminal
charges against bishops by the ecclesiastical authorities prior
to any action in the secular court, a privilege which was

1 "Illud est enim veritatis auctoritate firmatum, illud incorruptum, quod
a sacrosancto homine conscientia mentis illibatae protulerit. Otnnes ita-
que causae, quae vel praetorio iure vel civili tractantur, perpetuo stabili-
tatis iure firmentur, nee liceat ulterius retractari negotium, quod epis-
coporum sententia deciderit." (Cons. Sir., i.) Minors were denied the
right of appeal from the episcopal court by the same edict, while the
arbitral contract of a minor might ordinarily be quashed by asking for
an integrum restitutio. The same year that this edict was issued Con-
stantine made the decision of the pretorian prefect final. C. Th., xi,
30, 16.

203] T^HE EPISCOPAL COURTS 93

extended to the entire clergy in the Prankish monarchy and
was always one of the most difficult problems in mediceval
politics/

The introduction of the episcopal court with final juris-
diction in civil cases, the decision of controversies in this
court according- to the bishop's conception of right and
wrong, and the episcopal exemption from the regular crim-
inal procedure naturally caused confusion and abuse in a
system of jurisprudence so long and symmetrically devel-
oped as the Roman law. Episcopal jurisdiction was there-
fore limited and redefined by the legislation of succeeding
emperors.

The first step in this direction was taken by Gratian in an
edict which recognized the right of the church courts to
hear ecclesiastical cases but required criminal cases to be
decided by the secular courts." This legislation was in-
effective and was repeated twenty years later by Honorius,
who confirmed the jurisdiction of bishops over religious
cases, ordering their deposition of priests to be enforced by
police authorities if necessary, and required all other cases
to be heard according to the law.^ But the prerogative
granted by Constantius had been readily assimilated with
ecclesiastical tradition and custom. All efforts to revoke it
failed. The commentaries on the execution of Priscilian by

1 C. Til., xvi, 2, 12. " Mansuetudinis nostrae lege prohibemus, in
iudiciis episcopos accusari, ne, dum adfutura ipsorum beneficio impun-
itas aestimatur, libera sit ad arguendos eos animis furialibus copia. Si
quid est igitur querelarum, quod quispiam defert, apud alios potissimum
episcopos convenit explorari, ut opportuna atque commoda cunctorum
quaestionibus audientia commodetur " (355). For the interpretation of
this edict I am indebted to Godefroy, the seventeenth century editor
and commentator of the Theodosian code.

2 C. Th., xvi, 2, 23.

^ Ibid., xvi, II, i; ii, 35, 41; Const. Sir., 7.

94 EDICTS OF THE THEODOSIAN CODE [204

the decision of a secular court, the condemnation of John
Chrysostom by an ecclesiastical council, the opinion of Pope
Gelasius that, according to Roman law bishops must be
heard and condemned by an episcopal court before punish-
ment by the civil authorities, and the reprimand of the
exarch of Italy by Gregory the Great for imprisoning Bishop
Blancus — all illustrate the impotence of imperial legisla-
tion when opposed to ecclesiastical privilege and custom/

The revision of the episcopal court as a source of justice
was begun by Arcadius and Honorius. Two edicts which
are not found in the Theodosian code, limit its jurisdiction
to cases in which both parties agree to submit to the bishop's
arbitration.^ Litigation in the episcopal court was thus
reduced to the same basis as that of the recepti arhitri; but

1 Priscilian : Sulpicius Severus, Chronicon, ii, 49. " Priscillianus vero,
ne ab episcopis audiretur, ad principem provocavit, permissumque id
nostrorum inconstantia, qui aut sententiam vel in refragantem ferre de-
buerant aut, si ipsi suspecti habebantur, aliis episcopis audientiam reser-
vare, non causam imperatori de tarn manifestis criminibus permittere."
A twin-judgment of heresy and malciicium was brought against Pris-
cilian; and Martin of Tours, in criticism of the trial, said: " Saevum
etse et inauditum nefas, ut causam ecclesiae iudex saeculi iudicaret."
Ibid., ii, 50. Chrysostom, Mansi, iii, 1151. " Quoniam quorundam crim-
inum accusatus Johannes noluit adesse, leges talem deponant. quo et
ipse subiit." Gelasius (Migne, vol. Ivi, p. 641), "nunquam de pontificibus
nisi ecclesiam iudicasse; non esse humanarum legum de talibus ferre
sententiam absque ecclesiae principaliter constitutis pontificibus," etc.
Greg. Great, Ep., 2Z.

2 Cod. Just., \, A, 7; ibid., 8. The latter is also the eighteenth of the
constitutions of Sirmond. It is interesting to note that Augustus had
given the Jews the privilege of deciding their religious cases according
to their own law and custom, and this was confirmed by Theodosius
the Great. As the Jewish patriarchs extended the exercise of this
authority to secular matters, Arcadius required Jews living under the
protection of the Roman government to submit their litigation to the
common law courts. But if the patriarchal arbitration was agreed upon,
the decision was final even if not in accord with the principles of Roman
law. C. Th., ii, i, 10.

205] '^^^E. EPISCOPAL COURTS 93

the court did not lose its privileged position in the judicial
system of the empire. The bishop's decision, once rendered,
was final, and was enforced through the public courts, in-
deed the pretorian prefect was directed to prevent any
movement to quash it. Its validity therefore rested upon
the standing of the bishop as a judge, not on an agreement
to submit to the episcopal arbitration/ The essential ele-
ment of Constantine's legislation, the introduction into the
Roman judicial system of a court whose law and proceed-
ure were as untrammeled as that of the recepti arbitri, and
whose authority was as binding as that of the public judges,
remained unaltered.

This restriction imposed by Arcadius and Honorius was
openly disregarded by the church in so far as it applied to
cases in which clerks only were concerned; indeed, the
councils of the later fourth and the fifth centuries forbade
the clergy to carry their litigation into the civil courts. "
Valentinian III was therefore constrained to declare the
jurisdiction of the bishop over the clergy as well as the
laity to be invalid unless both parties agreed to accept his
decision; further, that clerks could not force laymen to
appear in the episcopal court ; and that bishops had no privi-
leged position before the law.^

1 Cod. Just., i, 4, 8. Imp p. Honorius ct Theodosius, A. A. Theodora,
P. P. " Episcopale iuclicium ratum sit omnibus, qui se audiri a sacer-
dotibus eligerint, eamque illorum iudicationi adhibendam esse rever-
entiam jubemus, quam vestris deferre necesse est potestatibus a quibus
non licet provocare. Per judicum quoque officia ne sit cassa episcopalis
cognitio, definitione executio tribuatur."

2 Carthage (397), c. 9; Aries (443 or 452), c. 31; Chalcedon (451).
c. 9-

3 Nov. Val. Ill, tit. 34. There are two other laws of Valentinian III
which were quoted in the Middle Ages as granting exemption from the
secular courts. Cons. Sinnon., iii and vi. (Cf. Florus of Lyons, Capi-
tula, 2.) But their purpose was to rescind the legislation of John the

C|6 EDICTS OF THE THEODOSIAN CODE [206

In this legislation and the attitude of the church toward
it we have the prelude to the problem of ecclesiastical courts
in the Middle Ages. The existence and legality of the
episcopal court were never questioned, but the nature and
extent of its jurisdiction were serious matters. The state
insisted that all criminal cases and those civil cases not sub-
mitted to the bishop by agreement should be heard by the
secular courts; but the church councils of the fifth century
continued to forbid clerks to resort to secular sources of
justice.^ Indeed, this prohibition seems to have been rec-
ognized by the civil authorities, for a gloss of the Breviary
of Alaric, a. sixth century compilation of Roman law, states
that the requirement of mutual consent in cases heard by
the bishop was repealed by Majorian so far as cases among
clerks were concerned.^ The privilege of applying to the
episcopal court for justice became one of the traditions of
the church. Benedict the Levite included in his collection
of capitularies the constitution of 331 as a Roman law re-
Tyrant, which had subjected religious as well as civil cases of the
clergy to the jurisdiction of the secular courts, and to guarantee the
right of ecclesiastical courts to hear ecclesiastical cases.

1 Angers (453), can. 19; Vannes (465), c. 9. Only with the permis-
sion of the bishop can clerks resort to the secular court. Carthage
(401), c. I, forbids a clerical witness in a clerical case decided by an
ecclesiastical court to appear again as witness if the dissatisfied clerk
appeals to the civil courts.

2 Lex Romana Visigothorum, Nov. Val. Ill, c. 12. This state-
ment has frequently been regarded as a forgery or a pious tradition.
But not all of Majorian's legislation is extant; moreover, Mar-
cian in 451 confirmed all the privileges which the orthodox emperors
had conferred on the church and canceled all pragmatic sanctions that
were contrary to ecclesiastical canons. Cod. Jttst., i, ii, 12. These facts
and the prevalent opinion that the glosses of the Breviary are derived
from the existing commentaries on the law, suggest that there was good
precedent for the statement of a repeal of Valentinian's legislation.
See chap. vi.

207] T^HE EPISCOPAL COURTS gy

enacted by Charlemagne/ Other canonists conscientiously
perpetuated the tradition, Gratian accepted it, and Inno-
cent III thought to correct his predecessors by ascribing
the authorship of the law to Theodosius the Great. -

The prominence which the clergy acquired in Roman
life and politics during the later empire enabled the bishops
to exercise an influence on the administration of justice
which was independent of their activity as ecclesiastical
judges.

The custom of intercession with state authorities by rhet-
oricians, men of learning or wealth in behalf of the unfor-
tunate, or of a patron for his client, was one of long standing
in Roman public life; and the dependency of the weak upon
the strong was emphasized by the economic conditions in
the later empire. Something very similar to this interven-
tion became one of the duties of the episcopacy. Ambrose
of Milan wrote to Studius, a public official, urging him to
adopt the conduct of Jesus toward the woman taken in adul-
tery in preference to the legal punishment by the sword,
while the intercessions of Basil of Csesarea with the Em-
peror Valens in behalf of the province of Cappadocia and of
Flavianus for the city of Antioch are trite illustrations of
the influence which the bishops often exercised in the im-
perial administration.^ The right of the judge to revise
a penal sentence opened the way for episcopal intercession
in the administration of criminal law. One of the duties
of the priesthood, says Ambrose, is " to snatch the con-
demned from death, when it can be done without disturb-
ance." * Abuses of this ecclesiastical interference in behalf

1 Capitula, vi, 366.

2 Decretum, C. XI, qu. i, cc. 35-3"; Decretal. Grcgor. IX, II, i, de
judiciis, c. 13.

3 Amb., Ep., vii, 58; Neander, General Church History, vol. iii, p. 190.
■* Amb., De OMciis, ii, 29.

gg EDICTS OF THE THEODOSIAN CODE [208

of the criminal classes led Tlieodosius and Arcadius to
forbid an appeal through the clergy after condemnation, ex-
cept in those cases where the appeal was prompted by a
sense of humanity or a failure of justice/ Honorius di-
rected the judges to produce the prisoners from their cells
on the Sabbath and to ask them if they had received
humane treatment. The conclusion of the edict encour-
aged the bishops to exhort the judges to fulfil this humane
duty. Indeed, St. Augustine intimates that prisoners were
often released from confinement on condition that they be
subjected to ecclesiastical penance.^

Closely associated with clerical intercessions was the re-
fuge which church edifices offered the unfortunate. The
protection of sacred buildings, altars, or statues of the
emperor was a custom of classical law inherited from that
primitive age wdien religious institutions afforded the only
protection from a system of justice administered by self-
help or popular vengeance. When the church was recog-
nized as a legal corporation, and the clergy began to have
an influence in public life, nothing was more natural than

1 C. Th., ix, 40, 15, 16. The interference of monks in judicial pro-
cedure was responsible for an edict of Theodosius which required those
following the monastic life " to inhabit desert places and vast soli-
tudes." Ibid., xvi, 3, I. The law was repealed two years after its en-
actment (392). Ibid., xvi, 3, 2.

2 Ibid., ix, 3, 7. This interest of the bishop in criminal justice was
extended in the legislation of Justinian by requiring the bishops to visit
the prisoners every Friday and Sunday, examine the crimes which each
prisoner had committed, inquire into the treatment of the jailor,^ and
report to the state authorities whatever was done contrary to good
order. Cf. Cod. Just., i, iv, 22. Aug., Ep. 153, c. 3: "Nam quosdam
quorum crimina manifesta sunt, a vestra severitate liberatos, a societate
tamen removemus altaris, ut poenitendo placare possint quem peccando
contempserant, seque ipsos puniendo." This letter is a defense and jus-
tification of episcopal intercession which had been criticized by Mace-
donius in a letter to Augustine, which precedes the letter of Augustine
in the edition of Migne's Patrologia.

209] T^iE. EPISCOPAL COURTS 99

that this privilege of asykim should be transferred to Chris-
tian places of worship. Indeed, the ecclesiastical asylum
was recognized by custom long before it became a subject
of legislation ; its purpose was to protect the one seeking it
until the bishop or priest might make intercession in his be-
half/ Principally two classes of people, debtors and slaves,
seem to have taken advantage of this protection and aid
offered by the church. The same year that Theodosius
sought to restrict episcopal intercessions he required the
bishop to surrender debtors of the fiscus who sought refuge
in the churches and forbade clerks to defend them or to
pay their debts." Arcadius sought to prevent curials from
accepting ecclesiastical aid by requiring those clerks who
offered them pecuniary assistance to pay the full amount of
the debts. He also ordered that slaves should not receive
the benefit of asylum for more than one day ; their masters
should be notified by the church officials and they, out of
regard for those to whom the slave had fled, should refrain
from inflicting punishment.^ Another edict designated the

1 Baronius, Annales, anno 324, gives a law of Constantine grant-
ing asylum rights to the church. This is a forgery. The earliest
mention of the institution in ecclesiastical sources seems to be the
council of Sardica, 343 (c. 7), where the members agree to the reso-
lutions of Hosius that aid shall not be denied those who flee to the
church. Numerous instances of the exercise of the protection of the
church are given by Godefroy. C. Th., ix, 45, i. Purpose, cf. C. Orange
(441), c. 5. Eos qui ad ecclesiam confugerint tradi non oportere, sed
loci reverentia et intercessioni defendi.

2 C. Th., ix, 45, I.

3 Ibid., 45, 3 and 5. The first of these edicts was enacted through
the influence of Eutropius. Chrysostom of Constantinople had defended
a number of individuals from the violence of Eutropius, who, in ven-
geance, had the customary asylum privileges of the church limited (398).
The following year, however, Eutropius sought refuge from the anger
of the Goths at the altar of the church, and Chrysostom interceded with
the barbarians for him. The law was then repealed. Soz., viii, 7. The
latter edict is dated 432.

lOO EDICTS OF THE THEODOSIAN CODE [210

altar and all parts of the church buildings as places of
refuge; no one seeking asylum there should be removed on
pain of death ; but force could be used if the refugees were
armed and refused to deliver their weapons at the command
of the clerks ; while Honorius recognized the space of fifty-
paces from the doors of the church as holy ground and
made its violation a sacrilege/

The recognition of the sanctity of the priesthood caused
the state, in the reign of Theodosius and Gratian, to invest
the clergy with certain privileges in the secular courts. It
was forbidden to force bishops to bear witness in criminal
cases, a privilege which was extended in the Justinian law
to an exemption from presenting any kind of evidence in
person.- Priests were also freed from all liability to tor-
ture,^ and when a criminal charge was made against a clerk
of any order the prosecutor was required to stake a pledge.
If the prosecution failed, the pledge was taken by the fiscus,
or if no pledge had been offered, the property of the prose-
cutor was confiscated.* Bishops who were the defendants
in actions of assault and battery were given the right of rep-
resentation by a procurator in a law of Valentinian III.^
Endowed with these privileges, the clergy were able to ex-
tend their influence in the Justinian law and to maintain a

1 C. Th., ix, 45, 4 of 431. Const. Sir., xiv. The latter edict also
sanctions intercessions. The influence of this law is seen in the Lex
Romano. Burgwidionum, ii, art. 5, and Lex Visigothorum, vi, tit. 5, c. 16.

2 This exemption from bearing witness was perhaps the result of the
movement in the church to prohibit appeals of ecclesiastical cases to the
emperor. See Council of Constantinople, can. 5. C. Th., xi, 39, 8 (381).
Novel. Justin., 123, 7.

3C. Th., xi, 39, 10 (385).

4 This law, an edict of Theodosius the Younger, is not in the Theo-
■dosian code. It was, therefore, probably repealed shortly after it was
issued. It is given by Haenel, Corpus Leguni, p. 241.

^ Nov. Val. Ill, xxxiv.

21 1 ] THE EPISCOPAL COURTS lOI

recognition of their peculiar character in the new kingdoms
that soon arose in the west.

The interpretation of the ideals and customs of a nation
or society by means of its legislation is one of the most diffi-
cult of problems. If the historian sixteen centuries in the
future should attempt to form an estimate of modern moral-
ity from our voluminous penal statutes, would he conclude
that the world in our time was full of thieves, cutthroats and
confidence men, or would he see in that legislation evidence
of a refined sense of right and wrong, an attempt to add
proportion and dignity to the temple of justice? When we
read the ecclesiastical legislation of the Roman emperors
we find a somewhat similar problem before us. Shall we
interpret the privileges and immunities received by the
church as a protection against certain phases of Roman life
not in harmony with Christian ideals, and beneficent in that
they prepared the church for the place it was to take in
the civilization of the future? Or shall we interpret the
career of the church by the legislation on heresy, and con-
clude that its policy was selfish, intolerant and antagonistic
to the interests of the empire? These questions lead us
into the field of hypothesis; each student will settle them
for himself according to his temperament. But there are
some conclusions in regard to the participation of the epis-
copacy in the legal life of the empire on which all may agree.

The most extensive privilege was granted by Constantine,
the genuineness of whose religious conviction has been
most questioned. Its limitation and reform were made by
those whose piety and devotion to the church have never
been doubted. One reason for this must have been that
the business of the secular courts suffered by the com-
petition of the ecclesiastical courts. Indeed the civil ad-
judication in which the episcopacy was involved as a result
of Constantine's legislation was a burden against which the

I02 EDICTS OF THE THEODOSIAN CODE [212

spiritually minded clergy protested. Chrysostom believes
that the difficulties of clerical arbitration are greater than
those of the public judge, for it is hard for him to find the
law, and having found it, also difficult not to violate it/
Augustine finds an opportunity in his Commentary on the
Psalms to complain of those people who voluntarily seek
the bishop's arbitration, yet when sentence has been given
are dissatisfied because they can not appeal. And when an
African council had charged him with certain affairs, he
made a contract with his congregation that he should be
released for four days of the week from the secular duties
of his office.^

In addition to their work as civil judges, the bishops
were active in the administration of secular property.
Augustine says that the dying left the interests of their
widows, children and property to the care of the church.
Ambrose defended the possessions of the widow and
orphan against the prosecution of the imperial fiscus.®
Gregory Nazianzus declares that the people no longer seek
in the priesthood physicians of the soul, but administrators
of moneys, advocates and rhetoricians.* This activity of
the bishop in the administration of civil law must have done
much toward the development of a vulgar law and custom,
differing in many details from classical jurisprudence.
Truly, in the language of the worthy Otto of Freising, " as
the empire decreased, the church adapted itself to the inter-
mission, and began to appear in great authority." ^

1 De Sacer., iii, 18.

2 Ps. 25, 13 ; Ep., 213. Cf. Po'ssidius, Vita Augustini, 19.

3 De OiHciis, ii, 29.

*Orat., 32. ^ Chronicon, vii, prologus.

CHAPTER VI

The Influence of the Legislation of the Theodosian
Code upon Early Mediaeval Jurisprudence

Any consideration of that legislation by which the church
began its career as a privileged institution whose members
were exempt from the economic obligations of citizenship,
whose courts were recognized as sources of secular justice,
and the corruptors of whose faith were punished with the
loss of the distinctive rights of Roman citizenship, suggests
the relation of these conditions to mediaeval jurisprudence.
By what process did the ecclesiastical law of the Theodosian
code became known to the civilization in the west which
succeeded the Roman Empire, and to what extent was that
law influential in securing the privileges which the clergy
enjoyed in mediaeval society?

There was in the first place a direct transmission of the
Roman imperial law, as it existed at the close of the fifth
century, to the Teutonic kingdoms established in western
Europe through the Lex Romana Visigothonmi, or Brev-
iary of Alaric.

In the second place there was a direct, although not ex-
tensive influence exercised by the code and Novels of Jus-
tinian upon Italian legal development in the sixth and
seventh centuries and upon the later development in those
centuries of the Visigothic law in Spain.

It will be advisable, first of all, to examine the Justinian
code and its relation to the earlier imperial law as well as
its immediate influence upon legal development in Italy.
213] 103

I04 EDICTS OF THE THEODOSIAN CODE [214

One of the first problems that confronted Justinian was
to bring order out of the confused ecclesiastical conditions
in the empire, and there is no better evidence of the despotic
strengfth, if not the wisdom, of his administration, than the
policy by which this end was secured. Believing " faith in
God" and "good order in the church" the only guarantees
for the existence of monarchy, he revised and extended the
privileges of the clergy and established an even more inti-
mate union of church and state than had previously existed.
The civil as well as the ecclesiastical litigation of the clergy-
was relegated to the jurisdiction of the bishops, and the
participation of ecclesiastical courts in criminal processes
against the clergy was recognized,* On the bishops were
conferred the rights of supervising public works and muni-
cipal expenditures; the prerogative of nominating candi-
dates for the administrative service of the empire ; the privi-
lege of assisting in the installation of governors; the duties
of publishing new imperial legislation, of visiting prisons,
and of hearing the complaints of the oppressed and unfor-
tunate.^ The privilege of appealing to the bishop in civil
and criminal processes, and from him directly to the emperor
was recognized, and at the request of the litigants, the
bishop might sit with the secular judge in the civil court.*
That the unity and supremacy of the civil authority were
maintained while such machinery of government existed is
sufficient witness of Justinian's ability to realize his con-
ception of government.

The legislation above summarized was closely related to
the rise of ecclesiastical influence in Italy which was coin-

^ Nov., Ixxix ; cxxviii, 21.

^ Nov., cxxviii, 16; Cod. Just., i, iv, 26; Nov., cxlix, i; viii, 14; vi,
epilogue i ; Cod. Just., i, iv, 22, 26.

^ Nov., Ixxvi. I, 4, 9; ibid., 2; Cod. Just., 1, iv, 7.

215] '^^^ INFLUENCE OF THE LEGISLATION 105

cident with the collapse of the civil administration during
the later sixth and early seventh centuries. Justinian's law
books were published in Italy after the reconquest of the
peninsula in 552, and a pragmatic sanction extended the
jurisdiction of the Novels to the west.^ That the clergy
was familiar with them is shown by the papal correspon-
dence of the time. Pelagius, a contemporary of Justinian,
repeats the rules of the Novels which restrict civil prosecu-
tions against clerks to the jurisdiction of the bishop and
prohibit the alienation of church property. Frequent re-
ferences to the rights and privileges given the clergy by Jus-
tinian were made by Gregory the Great. As soon as he was
elected Pope, he opened a correspondence with the Emperor
Maurice, the Exarch of Ravenna and various officials of
Africa, Sardinia and Naples. He received copies of new
laws enacted by the emperor, which he doubtless published
at Rome, and reported to Constantinople the oppression of
the poor by the imperial officials. He petitioned the exarch
for the repair of aqueducts and other public works at Rome,
while his rights as bishop to supervise municipal finance and
to interfere in behalf of justice are illustrated by an eloquent
letter to Leontius.

That official, a representative of the central government,
examined Libertinus, an ex-prefect of Rome, found him
guilty of squandering public money, and had him scourged.
Gregory, incensed at the infliction of such a penalty upon a
Roman citizen, reproved Leontius and declared, " Had I
found the accused guilty, it would have behoved me to warn
you by letter and had I failed to obtain your attention, I
should then have turned to the emperor." - Other letters

1 Kruger, Geschichte der Quellcn und Litemtur des romischen
Rechts, p. 354.

2 Greg., Ep., x, 51. This letter is interesting for the fact that it in-

lo6 EDICTS OF THE THEODOSIAN CODE [216

show the Bishop of Rome interceding in behalf of the un-
fortunate, encouraging his fellow bishops to bring influence
to bear on the secular judges in behalf of justice, and to send
complaints against public officials to Rome, on the plea that
" to coerce the violent laity is not to act against the law
but to bring a support to it." ^

Tlie letters of Gregoi-y also suggest that he was familiar
with Justinian's legislation regarding the clergy and church
property. He claimed for clerks the right to have civil
cases in which they were defendants heard by the bishop,
and interceded with the civil officials to prevent the forced
service of ecclesiastics on public works.^

The law of Arcadius which recognized injury to church
property as sacrilege had found its way into the Justinian
code. Tothis Justinian added the prohibitionof the alienation
of church property except for the release of captives or other
pious cause; provisions that what the abbot or bishop ac-
quires in office is the property of the foundation; and that
the property of clerks dying intestate and without heirs re-
verts to the church.^ These rules made by Justinian are
also reflected in the letters of Gregory, and his decisions on

timates that conflicts between ecclesiastical and civil jurisdiction might
frequently occur. Nov., cxxviii, 16, gives the bishop and a committee
of five citizens the authority to examine public accounts and to remove
guilty officials. This and similar legislation illustrates how the church
stepped in and took the responsibilities of the decaying municipal
organzation. Cf. Cod. Just., i, S5> 8, which gave the bishop power to
participate in the election of defensores. Justinian, in the Pragmatic
Sanotion of 554, gave the bishops of Italy authority to nominate
judges. Aliae aliquot constitutioncs, i, in Kriegel, Corpus Juris Civilis,
vol. iii.

!£/)., iii, I, 5, 9; ix, 27, 47; xi, 3; xiv, 15. For the legislation of
the code which gave the right to interfere in behalf of justice, see
preceding page.

~ Ep., xi, 27; xi, 72, 99; >=^i> S; C. J., i, iii, 2.

^ Nov., cxxxi, 13; cxx, 10; C. /., I, ii, 2; Nov., cxxiii, 38.

217] -^^^ INFLUENCE OF THE LEGISLATION 107

the alienation of church property found their way into the
canon law/

Equally important for mediasval conditions was Gregory's
activity in the administration of testamentary law. Justin-
ian made the bishops the general guardians in the execution
of charitable bequests and ordered that, if the executors
failed to fulfil the provisions of such bequests, the bishop
should intercede for a legal execution, that the reservation
of the Falcidian Fourth for the benefit of the heirs should
be denied, and that the whole property should be appro-
priated by the bishop for pious purposes.^ By virtue of
this authority Gregory informed the Duke of Sardinia that
benevolent donations must be carefully executed, instructed
the deacon Castorius to see that the terms of a testament in
which the church was a beneficiary " should be fulfilled with-
out impediment," decided that a bishop's estate and the
property accumulated before his service in the episcopacy
should revert to his son, and interfered for the just execu-
tion of a legacy in favor of the children of two freedmen.^

In the light of this extensive activity of the episcopacy in
the administration of justice, why should not ecclesiastical
decisions be recognized as a source of law? This was the
conclusion of the clergy, and it is well illustrated by the de-
velopment of testamentary law. While Justinian gave es-
pecial protection to benevolent bequests, he did not con-
template any alteration in the customary forms of testa-
ment ; in fact, he clearly stated that he desired to avoid such
a change.* But there was a feeling on the part of the

!£/>., I, 68; vi, 126; vii, 13, 38; viii, 34; x, i; xi, 10. Cf. D., xii,
qu. 2, cc. 13-14-

2 Nov., cxxxi, II, 12.

^ Ep., i, 48; V, 28; iv, 37; x, 5. Interference in the latter case was
the result of an appeal to Gregory.

* Cod. Just., i, 2, 19.

Io8 EDICTS OF THE THEODOSIAN CODE [218

clergy that testaments in favor of the church, especially
clerical testaments, should not be limited by the customary
forms of the civil law/ Gregory the Great shared this
opinion, and in a letter to the subdeacon of Sicily ordered
that the death-bed wish of a certain woman in the interest
of the church, although verbally expressed, should be ful-
filled." This and a passage in the Gospel of St. Matthew
were the sole precedents for the decree of Alexander III
which made the last will expressed in the presence of the
priest and two or three witnesses rescind any previous
testament.^

The first decided influence of the ecclesiastical law of the
Roman codes on the secular jurisprudence of the middle
ages is found in the legislation of the Visigoths. Before
the migration of this nation into southern Europe its laws
and customs had come under the influence of Roman in-
stitutions, and with the formation of a monarchy in south-
ern Gaul and Spain that influence increased. Visigothic
institutions of private property in land, of loans and interest,
of matrimony and of testament have their origin or received
some modification in the contact with the more civilized
Romans. While other conditions favored the union of the
two peoples into one nation, they were separated by a re-
ligious problem. The Goths were Arians, their Roman
subjects were Catholics. Very little is known of the ec-
clesiastical policy of the early Visigothic kings; they con-
ferred gifts and favors upon the Arian church, but their
legislation does not reveal any clerical influence such as that
exercised after their conversion to Catholicism, while their

1 Con. Lyons (567), c. 2.

- Ep. ii, 22.

8 C. 13, X, 3, 26.

219] '^^^^ INFLUENCE OF THE LEGISLATION 109

attitude toward the Catholics was one of toleration, except
when pohtical conditions made persecution necessary/

Such were the conditions when the codification of Visi-
gothic law beg-an. Written laws were issued before the
reign of Euric, but to him is attributed the first national
code whose jurisdiction included cases between Goth and
Roman as well as purely Gothic litigation.- There was no
statement that cases in which Gothic interests were not in-
volved should be heard according to Roman law, but the
course of later legislation indicates that this was the cus-
tom. The sources of Roman law, however, which included
the Hermogenian, Gregorian and Theodosian codes, the
Theodosian Novels and the writings of the jurists, and in-
terpretations of law now unknown were too voluminous,
their language was not sufficiently clear for popular use, and
custom had also made changes in their interpretation.
These facts and the opportunity to conciliate his Catholic
subjects, who had suffered persecution under Euric, and
who, it was feared, might support the Franks in the conflict
with that nation which seemed imminent, led Alaric II to
undertake a compilation of Roman law for use in purely
Roman litigation. This was the Lex Romana Visigo-

1 Dahn, Kdnige der Gerjnanen, vol. vi, p. 277- Alaric I recognized
the ecclesiastical asylum of the Roman law ; Gregory the Great gives
evidence that the property rights oif the Catholic church in Aries were
respected; Athaulf, third king, married a Catholic, and there is con-
flicting evidence regarding the policy of Theoderic I, while the toler-
ance of Theoderic II was praised by Sidonius. The Catholic his-
torian of the Spanish church, Gams, emphasizes the religious conflict
{Kirchcngeschichtc von Spanicn), while secular historians, notably
Dahn, regard the conflict as occasional and intermittent and as the
result of political complications.

2 For the legislation of Euric and his predecessors, see Zeumer,
Geschichte dcs west-gothischcn Gcsctzgcbung, Nciics Archiv., Bd. xxiii,
pp. 423, 468.

no EDICTS OF THE THEODOSIAN CODE [220

thorum, generally known as the Breviary of Alaric.^ It is
the work of a commission of provincial Roman lawyers and
bishops. It was approved by a council of bishops and
nobles and was then published in 506 with the command that
in the future no other source of law should be used by
Roman subjects. In its legislation and interpretations of
law, which were derived from existing glosses, we have the
Roman law of the fifth and early sixth centuries as it was
applied in the courts.^ A review of its provisions relating
to the church and clergy will illustrate their position in an
age when the civilizations of German and Roman were
blending and ecclesiastical aims were coming to dominate
both.

The political conditions under which the Breviary was
compiled prevented any extensive reproduction of the im-
perial edicts against heresy. Only two of those in the
Theodosian code were included, one in which Honorius or-
dered the " one and true Catholic faith " to be observed in

1 The last edition of this code was published by Haenel {Lex Romana
Visigo thorum, Leipsic, 1848). Conrat has recently published a system-
atic arrangement of its material in German translation, with references
and quotations from the text, after the fashion of the German hand-
books of public and private law. (Breviarium Alaricianum; Romisches
Recht itn frdnkischen Reich in systematischer Darstelhmg, Leipzig,
1903-)

2 The glosses of the Breviary were formerly regarded as unimport-
ant. But legal historians now recognize that they represent the cus-
tom of the later fifth and sixth centuries ; indeed, that they are derived
from older glosses now lost, and therefore are to be taken as a direct
survival of later classical law. Cf. Haenel, Lex Romana Visigothorum,
p. x; Blume, in Bekke/s und Muther's Jahrbuch des deutschen Rechts,
Bd. ii, 203; Fitting, Zeitschift fiir Rechtsgeschichte, Bd. xi, 228. On the
other hand, one writer has rejected the view that the glosses are de-
rived from previous commentaries (Degenkalb in Kritische Vicrteljahr-
schrift fiir Gesetzgehung und Rcchtswissenschaft, Bd. xiv, 505). For a
summary of the discussion, see Karlowa, Romische Rechtsgeschichte,
Bd. i, p. 977-

22 1 ] THE INFLUENCE OF THE LEGISLATION m

Africa, the other his confirmation of the legislation of
Theodosius, while the Novels of Theodosius II and Valen-
tinian III, enacted when heresy was no longer a political
problem, were allowed to remain unaltered/ There is also
only one law against apostasy, that of Valentinian II, which
punished the apostate with loss of testamentary rights; but
converts to Judaism were threatened with confiscation of
property, and traffic in Christian slaves by Jews was pro-
hibited."

A more decided evidence of the influence of the clergy
in the work of codification is the conception of church prop-
erty. Paraphrasing passages in the Institutes of Gains and
the Sentences of Paul are statements that " things of divine
law are churches, that is temples of God, and such patri-
monies and properties as are among the rights of churches;"
that an agreement to alienate religious property is invalid,
and sacrilege is punishable by casting the offender to the
wild beasts; and that only after debts and legacies to the
churches " in honor of God " have been deducted from an
estate, could the rule of the Falcidian Fourth be applied in
the interest of the heirs. ^

The laws treating of episcopal jurisdiction and the rela-

1 C. Th., xvi, 5 (Lex Romana) ; Nov. Theod., i, 8, 9; Nov. Val, i, i.

-Lex Romana (C Th., xvi, 2, i ; 3, 2; 4, i, 2).

3 Gaius, ii, i (Haenel, p. 322; Conrat, p. 791). " Omnes (itaque) res
aut nostri iuris sunt, aut divini, aut publici. . . . Divini sunt ecclesiae, id
est, templa Dei, vel ea patrimonia ac substantiae, quae ad ecclesiastica
iura pertinent." Ibid., ii, 9, 5 (Haenel, p. 334; Conrat, p. 791).

Paul, iv, 3 (Haenel, p. 400; Conrat, p. 891). "Lex Falcidia similiter
et Pegasianum Senatus consultiun, factum hereditarii debiti ratione et
separatis his, quae in honorum Dei ecclesiis relinquuntur, quartam hered-
itatis ex omnibus ad scriptum heredem consuit pertinere." The right of
the church to receive bequests and to receive the property of clerks
dying intestate and without heirs was also recognized. C. Th., v, 3, i.
The Novels of Majorian (i, i, 7) and Valentinian HI (xii, i, 5) were
also included. Sacrilege, Paul, v, 21, i.

112 EDICTS OF THE THEODOSIAN CODE [222

tion of the clergy to the secular courts are also important.
The edict of Constantius which allowed criminal charges
against bishops to be examined by a synod of bishops and
that of Gratian which required criminal accusations against
clerks to be heard in the secular courts, were re-enacted.^
The Novel of Valentinian Hmiting the civil jurisdiction of
bishops over clerks and laymen to cases in which both
parties submitted to his arbitration was also included, but
the gloss states that Majorian repealed the restriction so far
as it applied to clerks." Ecclesiastical tribunals were
granted exclusive jurisdiction over religious cases and
church edifices were accorded the privilege of asylum, while
the exemption of the clergy from the economic obligations
of citizenship and the legislation of Valentinian and Major-
ian defining the relation of the curiales to the clerical pro-
fession were reproduced.^

Thus all the essential elements of that legislation by
which the clergy secured its privileged position in the later
empire, passed into the Breviary. It was by far the most
widely known source of Roman law prior to the twelfth
century, and was applied in the courts of southern Europe.
The church, moreover, claimed the Roman as its personal
law. We have therefore in the Breviary a statement of the
position of ecclesiastical institutions in the custom of the
early mediaeval courts.

The purpose of the Breviary was to furnish a summary
of Roman law for use in disputes between Romans
when Goths and Romans were living as neighbors under
the same royal authority, but preserving their respective

1 C. Th., xvi, I, 2, 3 (Lex Romana). Bishops were also exempted
from torture. C. Th., xi, 14, 5.

2 See preceding chapter, p. 96, n. 2.

3 C. Th., xvi, I, 3, 4, 5 {Lex Romana) ; C. Th., ix, 34, i (Lex
Romana) ; Nov. Val, III, xii (L. R.) ; Nov. Maior., 1 (L. R.).

223] ^^^ INFLUENCE OF THE LEGISLATION 113

laws and customs. An important step toward the union of
the two races was made by Leovigild, who revised the code
of Euric, repealed the ancient prohibition of the marriage
of Goth and Roman and adopted the Roman system of blood
relationship and the theory of the equality of sons and daugh-
ters in rights of succession.^ The conversion of his son Rec-
cared to Catholicism, and the recognition of that faith as the
national religion, removed the last influence which separated
Goth and Roman. It was now possible to formulate a na-
tional code of law applicable to all subjects of the kingdom.
This was begun by Reccessvinth. His Liber ludiciorum,
published in the middle of the seventh century, was a com-
pilation of the legislation of his predecessors and his own.
It was intended to displace all other sources of law and to
it all persons and people of the kingdom were subject." Re-
vised by Ervig and enlarged by Egica, it is known as the
Lex Visigothornm and it was in theory at least the basis of
Spanish jurisprudence until the thirteenth century.^

An examination of this code with reference to the sources
of its legislation leads to the conclusion that, in addition to
Visigothic law and custom and the Breviary, the Justinian
jurisprudence was well known in Spain. Tlie language of
the Lex Visigothorum has never the dignity nor grace of

1 The restriction upon intermarriage of Goth and Roman was perhaps
caused by the policy of the CathoHcs, who hoped to convert the Goths
from Arianism through mixed marriages. The marriage of Roman
and barbarian was also prohibited in the Breviary. C. Tli., xii, tit. 14
(L. R.).

2 Date, between the years 652 and 654. Zeumer, Gcscliicltte dcr zvcst-
gothischen Gesetzgebung (Nciies Archiv., Bd. xxiii, p. 486). Jurisdic-
tion, Lex Visigothorum, ii, i, 9. The words Liber ludiciorum appear
in the oldest manuscripts. Zeumer uses the name Lex Quoniam from
the first words of the Edict of Reccesvind, by which it was promul-
gated. It is also known as the Lex Visigothorum Recccssznndiana.

3 Time of revision and enlargement, 681 and 693. Cf. Zeumer, N. A.,
Bd. xxiii, pp. 483. 488.

114 EDICTS OF THE THEODOSIAN CODE [224

the Latin of the second and third centuries, which was so
largely reproduced in the eastern law books, but the division
of Reccessvinth's work into twelve books, the number of the
Justinian code, the apparent correspondence of many Visi-
gothic formulas with the law of the Digest, the precedent
which the Justinian law offers for the Visigothic edicts on
testament, representation, procedure and evidence, indicate
an influence of the later Roman law on Visigothic juris-
prudence in the period of its maturity. This probability is
strengthened by the fact that from 554 to 624 there was a
Byzantine province on the Levantine coast of Spain whose
capital was Catalonia. Also, as late as the ninth, probably
the tenth, century, a collection of Spanish laws included along
with some of the legislation of Euric and the Liber Ittdi-
ciorum, imperial constitutions, portions of the Institutes
and Novels of Justinian, and an epitome of the Breviary;
while the purpose of the collection is to make known the
" Roman laws " as " promulgated by our Lord Justinian."
In the light of these facts, it is probable that Reccessvinth's
prohibition of the future use of Roman and foreign laws
refers to the law books of Justinian as well as to the
Breviary.^

Other evidence of the survival of the Justinian law in
Spain, pertinent to the theme of this chapter, is found by
a comparison of its legislation on the episcopal courts with
that of the Lex Visigothorum.

1 De Urena (Literatura Juristica Espanola, vol. i, p. 294) thinks that
the prohibition refers to the Justinian law books alone and not to the
Breviary. The collection referred to is in the Holkham Library, Nor-
folk, England. It has been published by Prof. A. Gaudenzi, of Bologna,
under the title, Un' antica compilazione di dirrito Romano e Visigoto
con alcuni frammenti delle leggi di Eurico (Bologna, 1886). A por-
tion of it has been reprinted in the Neues Archiv., Bd. xxiii, p. 389. A
collection of Roman law was also made by Petrus de Granon in the
tenth century, which suggests a knowledge of Justinian legislation. Cf.
Nicholas Antonio, Bibliotheca Hispana Vctus, vol. i, p. 518.

225] -^^^ INFLUENCE OF THE LEGISLATION 115

Three edicts, one of Chindasvinth, one of Reccessvinth,
and one of Ervig, determined the place of the episcopal
court in the legal system of the Visigothic kingdom after
the conversion of the Visigoths to Catholicism/ The first
of these provides that, if any one engaged in civil litigation
believes that the decision of the judge has been influenced
by prejudice, that official, with the aid of the bishop, shall
review the case and issue a new decision. If there is still
dissatisfaction, appeal may be made to the royal court, after
the joint sentence of bishop and judge has been executed,
on the plea of unjust judgment. If the appeal is then justi-
fied, the judge and bishop shall suffer the penalty of unjust
judgment; if it is rejected, the appellant must suffer in the
same manner. The second edict recognizes the bishop as the
protector of the common people (pauperes) and establishes
a procedure in case the judge shall refuse to re-hear the case
with the bishop.^ The bishop may then make an indepen-
dent decision which the count must execute; and if the
bishop refuses to hear the appeal or the count hesitates to
enforce the episcopal decision, each shall forfeit one-fifth
of the value of the suit. The third law reverts to the course
of action outlined in the first. Bishop and judge shall hear
the appeal together; if they can not agree, each shall com-
mit his opinion to writing and send it to the king, whose
decision shall be final.

1 Lex Vis., ii, i, 24 (Chindasvinth), 30A (Reccessvinth), 30B (Ervig).
In the interpretation of these laws I have followed Zeumer, Nencs
Archiv., Bd. xxiv, pp. 79-88. References to the text are to his recent
edition of the Lex Visigothoruin in the Monumenta Germania, Leges,
sec. 2, torn, i (1903).

- Different definitions have been given the word pauperes. Dahn and
the older writers assign it a literal meaning, the poor or unfortunate.
Zeumer thinks it refers to the people as opposed to the nobles and civil
authorities. In such a sense it was used by the councils of Toledo
(iv, c. 32) and Tours (ii, c. 22,). Neues Archiv., Bd. xxiv, pp. 80-81.

Il6 EDICTS OF THE THEODOSIAN CODE [226

The only precedent for this legislation is the eighty-sixth
Novel of Justinian, and a comparison leaves the impression
that the one was the source of the other/ Justinian re-
quired the bishop to hear the case along with the civil
judge suspected of prejudice, gave him the power to re-
vise the sentence of the civil court, provided for a final
appeal to the emperor, and inflicted the Roman penalty for
unjust judgment on the bishop who gives an illegal decision,
or on the appellant, if unsuccessful in his appeal. In one
essential, however, the Justinian law differs from the Visi-
gothic, in regard to the stage of the procedure when appeal
may be made. In the former, appeal from a suspected
judge is in order only before the formal joining of issue
{litis contesfatio) ; in the latter, the appeal may be made
to the bishop at any stage of the process. This deviation
is explained by a Novel of Valentinian, incorporated in the
Breviary, which permits appeal without any limitation by
the regular procedure."

This reception and influence of the ecclesiastical law of
Justinian in Spain is one of the most notable manifestations
of that confusion of the civil and ecclesiastical authorities
which was so notable in the centuries of transition from
classical to mediaeval civilization. It aided in that confusion
of law and morality, of civil and ecclesiastical powers that
followed the conversion of the Goths to Catholicism and
continued to be one of the characteristics of Spanish life
as late as the thirteenth century, when the earliest of the
constitutional monarchies of Europe knew no conflict be-
tween church and state, for the two institutions were inex-
tricably blended in the law and custom of the realm.

1 Nov., Ixxxvi, was probably known in Spain through the Epitome
of Julian (Jul., Ixix).

^ Nov. Just., liii, 3; Jul., xlvii; Nov. Vol., xxxiv, 16, xii (Lex
Romano).

227] THE INFLUENCE OF THE LEGISLATION ny

The evidence for the influence of the Justinian jurispru-
dence on the ecclesiastical law of the Prankish empire is
not so conclusive as that just reviewed. The Franks were
not so susceptible to Roman influence as the Goths, and their
kingdom was far more Germanic in population and institu-
tions than that of their neighbors beyond the Pyrenees.
While no manuscript of Justinian's law books which ante-
dates the ninth century has been discovered in France,
there were conditions in the Prankish empire which suggest
an acquaintance with the ecclesiastical provisions of his code.

The election of a count by the bishop and the people, the
nomination of another by St. Eligius of Tours, suggest the
edicts of Honorius and Justinian which allowed the bishop
to participate in the election of defcnsores and to nominate
civil officers.^ The capitulary of Chlothair II which states
that in the absence of the king the bishop may force a
judge to revise his unjust sentence, is similar in spirit to the
appeal to the bishop provided for in the Novels.^ A similar
comparison might be made in the exemptions of the clergy
from the secular courts. Chlothair's edict of 614 extended
to the entire clergy the right of bishops to have criminal
charges against them heard by a council of bishops, while
personal actions against clerks were also conceded to the
episcopal courts by the same edict — a privilege more ex-
plicitly guaranteed in the Mantuan capitulary of 787.^

The only precedent for such a policy is that of Justinian's
Novels.* Moreover, that other procedures suggestive of

1 Greg. Turon, Hist. Franconim, v, 47 ; Vita St. Eligii, i, 32. Cf. C. J.,
I. 55. 8; Nov., cxiix, i.

2 Cloth., Pracceptio, 6 (Boretius, p. 19) ; Nov., Ixxxvi.
8 Boretius, i, p. 21, 4; ibid., p. 196.

* Nov., cxxiii, 31, makes the episcopal court a court of first instance
for all personal actions against clerks, monks and deaconesses. For
criminal actions, cf. ibid., viii, p. 21.

Il8 EDICTS OF THE THEODOSIAN CODE [^22^

Justinian's legislation were sometimes used, that the de-
mands for exemption of clerks from the jurisdiction of the
civil courts were more frequent and explicit in the middle
and latter part of the sixth century, the time when the law
books and Novels were published in the west, and that Jus-
tinian's legislation was known to some extent in the king-
dom of Burgundy, which passed under Prankish control be-
fore the code was completed or the Novels were published
in the west — these facts seem to increase the probability
of the knowledge and use of Justinian's law prior to the
ninth century/ And in that century the Epitome of Julian
was well known, for from it was taken, word for word, the
prohibition in the capitularies of Lewis the Pious of the
alienation of church property, except in exchange for royal
favors.^

If the precedents found in the Justinian law were effec-
tive in fixing the position of the church in the legislation of
the Prankish kings, the Breviary of Alaric. as already stated,
established its place in local custom and usage. Its forty
manuscripts, nearly all found in Prankish territory, the
frequent occurence of portions of it in the manuscripts of
other collections of laws, the seven epitomes or minor codes
for which it is the source, are evidence of the popularity of
the Brez'iary in medi?eval jurisprudence.^ Something more

1 A council of 794 directs that bishops and counts together decide
cases involving clerks and laymen. (Boretius, i, 77). Hincmar, in his
letter to Charles the Bald, mentions a method by which the king ap-
points judges who, with the bishops, decide mixed cases. £/>., 40, Cone.
Aur. (538), c. 32; ibid. (541). c. 20, Cone. Matiscon (585), c. 9 et scq.
Cf. Nissel. Dcr Gcrichtstand dcs Clcrus iin frankischcn Reich, pp.
112, 116; Conrat, Gcsch. der Quellen und Lit. des rom. Rechts, vol. i,
P- Z7.

2 Savigny, vol. ii, p. 100.

8 Cf. Introduction and text of Haenel's edition and the Prolegomena
to Mommsen's edition of the Theodosian code.

229] THE INFLUENCE OF THE LEGISLATION 119

than tradition indicates that Charlemagne recognized and
approved it as a source of justice, for the statement that
" it was received and placed among the laws by Charles
and his son Pippin " coincides with their recognition and
confirmation of folk law, by which each nation was given
the privilege of amending its own " wherever that was neces-
sary and committing it to writing, in order that the judge
might make decisions by written law . . . and all men, poor
and rich, have justice in the kingdom." ^

The ecclesiastical legislation of the Breviary was often
the precedent for laws made by the councils and consequently
found its way into the works of the canonists. The restric-
tion on Jewish traffic in Christian slaves was more than once
re-enacted.^ The edict of Constantius which placed criminal
accusations against bishops under the jurisdiction of the
synod of bishops was cited in the demand for the immunity of
clerks from procedure in the secular courts, as was also the
law granting clerks exemption from taxation and public bur-
dens.^ The right of representation in criminal procedure
given the bishops by Valentinian was extended to all grades
of the clergy by an eighth century epitome of the Breviary.^
The rule of Honorius on celibacy seems to have been the

1 A manuscript of the Epitome of Aegidius, one of the compilations
made from the Breviary, is the source of the first quotation (Conrat,
Ges. d. Q. u. L., p. 44) ; the second is from the Annales Laiirentientes,
anno 802. A clause of a lost capitulary also says: Constituta ex lege
Salica, Romana, atque Gombata (Boretius, i, 170). Stobbe regards the
passage in the Annales as a confirmation of folk-law. (Geschichte der
deutschen Rechtsquellen, Bd. i, p. 20.) Likewise Conrat, p. 44, n. 4.

2 Cone. Aurel. (538), 13; (54i) 30, 31; Matiscon (581), 16; Ben.
Diacon., iii, 286; Burch. Worm., Decret., iii, 90; Ivo Chart, i, 284; cf.
C. Th., xvi, I, 4 (Lex Romana).

3 Aurel (541), 20; Matiscon (585), 9; Paris (614), 4; Ben. Diac., iii,
284; Ps. Isid, Ep., Gains. Cf. C. Th., xvi, i, 2 {Lex Rofnana) ; Ben.
Diac, iii, 185. Cf. C. Th., xvi, i. i {Lex Romana).

* Nov. Val. Ill, 12 ; Epit. Monach.

I20 EDICTS OF THE THEODOSIAN CODE [230

source for similar legislation of numerous councils, while
the laws regarding heresy and apostasy were also known,
but were not so frequently cited. ^

It was from the Breviary also that the ecclesiastical au-
thorities derived many of those legal principles which gave
the canon law its distinctive character as a system of justice.
The rules that the accuser in a criminal action who fails
to prove his charge must suffer the penalty involved, that
those accused of crime and not proved innocent can not give
testimony in a criminal process, that the judge can not
examine until a formal accusation has been made, and the
extension of the conception of crime from physical injury
to libel — these principles of the canon law have their source
in the Breviary of Alaric.^ They illustrate how direct was
the transition from the later Roman to the ecclesiastical
justice of the middle ages, and, when compared with the
contemporary legal ideals of the Germanic nations, they ex-
plain the popularity of the court Christian. Indeed the
references to the sixteenth book of the Theodosian code by
the canonists are far less frequent than to those titles of the
ninth book and the portions of the Sentences of Paul which
treat of evidence, procedure and appeal — a fact that indi-
cates that the chief concern of the church in the early middle
ages was not the maintenance of ecclesiastical privileges,
but the work of directing the varied social activities of
mankind.

1 Loning, Bd. ii, p. 323 ; Ben. Diac, iii, 188, 287 ; Ps. Isid., Ep., Ana-
lect, ii; Ep., Gaius; Lex Bav., i, 13, art. 2.

-Ben. Diac, iii, 164; Burchard, vol. i, p. 164; Ivo Pann., iv, iii;
Ivo Chart., xvi, 248. It is interesting to notice that Gratian was not .
acquainted with the Breviary, but he was familiar with its legislation
through the acts of the councils. There is also no evidence of use of
the Breviary by the Popes.

BIBLIOQRAPHY

The principal authorities used in the preparation of this monograph
are here given. From them may be derived a wider and more minute
acquaintance with the extensive literature which treats of ecclesiastical
and civil problems in the Roman Empire.

I. Laws
Breviariiwi Alaricianum (Conrat). Leipzig, 1903.
Codex Theodosianns (Haenel). Berlin, 1842. (Vol. ii of Bocking's

Corpus Juris Romani Anie-Justiniani.)
Codex Thcodosianus (Godefroy). Lyons, 1665.
Codex Justinianus (Kriegel).

Corpus Legum Ante-Justinianum (Haenel). Leipzig, 1857.
Lex Romana Visigothorum (Haenel). Leipzig, 1848.
Leges Visigothormn (Zeumer). Hanover, 1902. {Mon. Gem. Hist.

Legum, sectio i.)
Novellae, Constitutioncs Impcratorum Thcodosii II, Valentinian III,

etc. 1844. (Vol. iii of Bocking's Corpus Juris Ante Justiniani.)
Novellae Justiniani. Berlin, 1899. (Vol. iii of Corpus Juris Civilis, ed.

Mommsen, Kruger, etc.)
Theodosiani Libri XVI (Mommsen and Meyer). Berlin, 1905.

n. Contemporary Historians ^
Eusebius, Historia Ecclcsiastica.
Eusebius, Vita Ecclcsiastica.
Rufinus, Historia Ecclcsiastica.
Socrates, Historia Ecclcsiastica.
Sozomenus, Historia Ecclcsiastica.
Theodoretus, Historia Ecclcsiastica.

111. Modern Literature and Criticism
Allard, Lc Christianisme ct I'empirc romaine. Paris, 1898.

1 The editions of these authors embodied in Migne's Patrologia have
been generally followed. Use has also been made of translations in the
Library of Nicene and Post Nicene Fathers.

231] 121

122 BIBLIOGRAPHY [232

Bury, Later Roman Empire. London and New York, 1899.

Conrat, Geschichle der Quellen unci Litcratur des romischen Rechts im

friiheren Mittelaltcr. Vol. i. Leipzig, 1891.
Dahn, Konige der Germanen. Wurtzburg, 1866.
Diehl, Etudes sur I' administration bysantique dans I'exarchat de Ra-

venne. 1888.
Dill, Roman Society in the Last Century in the West. New York, 1898.
Esmein, Cours clcmentaire d'histoire du droit frangais. Paris, 1895.
Goyau, Chronologic de I'empire roniaine. Paris, 1891.
Harnack, History of Dogma (7 vols.). Boston, 1897-1900.
Hatch, Organization of the Early Christian Churches. Oxford, 1881.
Hefele, Conciliengeschichte (Bd. i, ii). 1873-1875.
Kriiger, Geschichte der Quellen und Literatur des romischen Rechts.

Leipzig, 1888.
Langen, Geschichte der romischen Kirche bis sum PontiUkate Leo I.

Leipzig, 1888.
Loning, Geschichte des deuischen Kirchenrechts. Strassburg, 1878.
Maassen, Geschichte der Quellen und Literatur des canonischen Rechts

im Abendlande (vol. i). Gratz, 1870.
Matthias, Die Entwickelung des romischen Schiedsgerichts. Rostock,

1888.
Nissl, Der Gerichtstand des Clerus im frdnkischen Reich. Innsbruck,

1886.
Neues Archiv. (Gesellschaft fiir altere Deutsche Geschichtskunde).

Bds. xxiii, xxiv, xxv, xxvi.
Rauschen, Jahrbilcher der christlichen Kirche unter dem Kaiser Theo-

dosius dem Grossen. Freiburg, 1897.
Richter, Das west-romische Reich besonders unter den Kaisern Gra-

tian, Valentinian II und Maximus. Berlin, 1865.
Riffel, Geschichtliche Darstellung der Verhdltnissen zwischen Kirche und

Staat bis auf Justinian I. Mainz, 1836.
Schiller, Geschichte der romischen Kaiserzeit. Gotha, 1887.
Schultze, Geschichte des Untergangs des romischen Heidenthums. Jena,

1887.
Viollet, Histoire des institutions politiques de la France (vol. i). Paris,

1890.
Zeitschrift fUr Kirchengeschichte.

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