(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The ecclesiastical edicts of the Theodosian code"

* COT 7 1922 *l 



Bv 760 .Bby2 iyuj 

Boyd, 
1938 



William Kenne 



th, 1879- 



The ecclesi 



astical edicts 



theTheodos^n 



code 



2 

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. 




Date Due 


\ 


^ 






\ '/ 








\ IQQ^ 






W H 'SJ ^\ji 












. —ftft . 






■^jm^ 


f^mrnm^^ 






























































































m 


1 1