Book 16, the final book of the Theodosian Code, treats religion. The tenor and contents of this book give us a sense of how the imperial court refashioned its own religious authority in the centuries following the legalization of Christianity. Although bishops might attempt to subordinate the imperial house to episcopal authority (see Text 8), the emperors still maintained their role as guardians of religious equilibrium. So emperors convoked Christian councils (see Chapter 8) and legislated on religion.
Such legislation might be broad and sweeping, such as the famous 16.1.2, making "Catholic" Christianity the official Christianity (although not quite the official religion) of the empire. This law was later deemed to be so significant that it was promoted to the head of the massive law code commissioned by the sixth-century Emperor Justinian. The concern not only to recognize and proscribe, but to catalog and delimit, Christian heresies with a proliferation of labels has been adopted for legal purposes from the writings of heresiologists (see Chapter 7). But the laws do not merely codify religious biases. We see emperors attempting to balance the good of the state with their blazing zeal for Christian orthodoxy as they debate clerical exemption from costly public service and rein in exuberant monastics (male and female). The status of non-Christians in imperial law is also notable: at times, emperors legislate against non-Christian religious practices (animal sacrifice, public Jewish festivals) in the name of Christian loyalty, but they are also careful to protect non-Christian persons against religious violence (see 16.10.24). Imperial legislation on religion—Christian and non-Christian—thus provides an ambivalent window into the overlap and conjunction of law and faith.
Note: The year each law was issued is noted in parentheses at the end of that law's text.
1 (2) Emperors Gratian, Valentinian, and Theodosius Augustuses: An Edict to the People of the City of Constantinople.
It is Our will that all the peoples who are ruled by the administration of Our Clemency shall practice that religion that the divine Peter the Apostle trans-
mitted to the Romans, as the religion that he introduced makes clear even unto this day. It is evident that this is the religion that is followed by the Pontiff Damasus and by Peter, bishop of Alexandria, a man of apostolic sanctity; that is, according to the apostolic discipline and the evangelic doctrine, we shall
From The Theodosian Code and the Sirmondian Constitutions, ed. Clyde Pharr et al. Copyright © 1952 by Clyde Pharr, renewed 1980 by Roy Pharr. Reprinted by permission of Princeton University Press.
believe in the single Deity of the Father, the Son, and the Holy Spirit, under the concept of equal majesty and of the Holy Trinity.
We command that those persons who follow this rule shall embrace the name of Catholic Christians. The rest, however, whom We adjudge demented and insane, shall sustain the infamy of heretical dogmas, their meeting places shall not receive the name of churches, and they shall be smitten first by divine vengeance and second by the retribution of Our own initiative, which We shall assume in accordance with the divine judgment (380).
2 (2) The same Augustus [Constantine] to Octa-vianus, Governor of Lucania and of Bruttium.
Those persons who devote the services of religion to divine worship, that is, those who are called clerics, shall be exempt from all compulsory public services whatever, lest, through the sacrilegious malice of certain persons, they should be called away from divine services (313).
2 (3) The same Augustus [Constantine] to Bassus, Praetorian Prefect.
A constitution was issued that directs that thenceforth no decurion or descendant of a decurion or even any person provided with adequate resources and suitable to undertake compulsory public services shall take refuge in the name and the service of the clergy, but that in the place of deceased clerics thereafter only those persons shall be chosen as substitutes who have slender fortunes and who are not held bound to such compulsory municipal services. But We have learned that those persons also are being disturbed who became associated with the clergy before the promulgation of the aforesaid law. We command, therefore, that the latter shall be freed from all annoyance and that the former, who in evasion of public duties have taken refuge in the number of the clergy after the issuance of the law, shall be completely separated from that body, shall be restored to their orders and to the municipal councils, and shall perform their municipal duties (329).
2 (27) Emperors Valentinian, Theodosius, and Ar-cadius Augustuses to Tatianus, Praetorian Prefect.
According to the precept of the Apostle, no woman shall be transferred to the society of dea conesses unless she is sixty years of age and has the desired offspring at home (cf. 1 Tim 5:9). Then, after she has sought a curator for her children if their age should so require, she shall entrust her goods to suitable persons, to be managed diligently and conscientiously. She herself shall receive only the income from her landed estates, which she shall have full power to keep, to alienate, to give, to sell, or to bequeath, as long as she lives or when she is departing to her fate, and her will is unrestricted. She shall expend none of her jewels and ornaments, none of her gold and silver and other embellishments of a sumptuous home, under the pretext of religion. Rather, she shall transfer in writing all her property intact to her children or next of kin or to any other persons whatsoever, according to the judgment of her own free will. However, when she dies, she shall designate as heirs no church, no cleric, or no pauper. For her will shall necessarily lack all force if it should be composed by the decedent contrary to the prohibition concerning the persons specifically mentioned above. Furthermore, if anything should be extorted from the decedent by the aforesaid persons, nothing shall be bestowed on clerics, to the fraud of Our venerable sanction, by secret trust, through cunning artifice or the disgraceful connivance of any person. Rather, they shall be deprived of all the goods which they had coveted. Moreover, ifanything is revealed to have been transferred in writing through a letter, codicil, gift, or testament, or finally, in any way whatsoever, to those persons whom We have excluded by this sanction, such deed of transfer shall not be cited in court. On the contrary, according to the limitation prescribed by this statute, that person shall succeed as heir through intestacy who understands that he is entitled to the goods, provided that he acknowledges that he is a child or proves that he is a near kinsman; or finally, if either by chance or by will he is found to be an heir, a legatee, or a beneficiary of a trust for all or for a portion of the goods, by an open codi-eil; he shall enjoy the gift of his fortune, the reward of his knowledge, and after the above-mentioned persons have been disqualified and rejected, he shall assume the authority of an heir over the hereditary substance.
Women who cut off their hair, contrary to divine and human laws, at the instigation and persuasion of some professed belief, shall be kept away from the doors of the churches. It shall be unlawful for them to approach the consecrated mysteries, nor shall they be granted, through any supplications, the privilege of frequenting the altars that must be venerated by all. Moreover, if a bishop should permit a woman with shorn head to enter a church, even the bishop himself shall be expelled from his position and kept away, along with such comrades. Not only if he should recommend that this be done, but even if he should learn that it is being accomplished by any persons, or, finally, that it has been done in any way whatsoever, he shall understand that nothing will exonerate him. This shall indisputably serve as a law for those who deserve correction and as a customary practice for those who have already received correction, so that the latter may have a witness, and the former may begin to fear judgment (390).
3 (1) Emperors Valentinian, Theodosius, and Ar-cadius Augustuses to Tatianus, Praetorian Prefect.
If any persons should be found in the profession of monks, they shall be ordered to seek out and to inhabit desert places and desolate solitudes (390).
3 (2) The same Augustuses to Tatianus, Praetorian Prefect.
We direct that the monks to whom the municipalities had been forbidden, since they are strengthened by judicial injustices, shall be restored to their original status, and the aforesaid law (i.e., 3 (1) above) shall be repealed. Thus indeed, We revoke such a decree of Our Clemency, and We grant them free ingress into the towns (392).
5 (65) Emperors Theodosius and Valentinian Augustuses to Florentius, Praetorian Prefect.
The madness of the heretics must be so suppressed that they shall know beyond doubt, before all else, that the churches that they have taken from the orthodox, wherever they are held, shall immediately be surrendered to the Catholic Church, since it cannot be tolerated that those who ought not to have churches of their own should continue to detain those possessed or founded by the orthodox and invaded by such rash lawlessness.
Next, if they should join to themselves other clerics or priests, as they consider them, a fine of ten pounds of gold for each person shall be paid into Our treasury, both by him who created such cleric and by him who allowed himself to be so created, or if they should pretend poverty, such fine shall be exacted from the common body of clerics of the aforesaid superstition or even from their offertories.
Furthermore, since not all should be punished with the same severity, the Arians, indeed, the Macedonians, and the Apollinarians, whose crime it is to be deceived by harmful meditation and to believe lies about the Fountain of Truth, shall not be permitted to have a church within any municipality. Moreover, the Novatians and Sabbatians shall be deprived of the privilege of any innovation, if perchance they should so attempt. The Eunomians, indeed, the Valentinians, the Montanists or Priscillianists, the Phrygians, the Marcianists, the Borborians, the Messalians, the Eu-chites or Enthusiasts, the Donatists, the Audians, the Hydroparastatae, the Tascodrogitae, the Photinians, the Paulians, the Marcellians, and those who have arrived at the lowest depth of wickedness, namely, the Manicheans, shall nowhere on Roman soil have the right to assemble and pray. The Manicheans, moreover, shall be expelled from the municipalities, since no opportunity must be left to any of them whereby an injury may be wrought upon the elements themselves. No employment at all in the imperial service shall be permitted them except on gubernatorial office staffs in the provinces and as soldiers in the camp. They shall be conceded no right at all to make reciprocal gifts, no right to make a testament or last will. All the laws that were formerly issued and promulgated at various times against such persons and against all others who oppose our faith shall remain in force forever, by vigorous observance, whether concerning gifts made to the churches of the heretics or property left in any manner by last will, whether concerning private buildings in which they have assembled with the permission or connivance of the owner and that shall be vindicated to the Catholic Church, which must be venerated by us, or concerning a procurator who has permitted such assembly without the knowledge of the owner and who shall be subject of a fine of ten pounds of gold or to exile if he is freeborn, or, if he is of servile condition, he shall be flogged and sent to the mines. Moreover, such heretics shall not be able to assemble in any public place or to build churches for themselves or to devise any scheme for the circumvention of the laws. They shall be prevented therefrom by all civil and military power and also by the power of the municipal councils and defenders and the judges, under threat of a fine of twenty pounds of gold. Furthermore, all those laws that were promulgated concerning the imperial service and concerning the right to make gifts or with reference to testamentary capacity, a capacity that must either be denied altogether or one that was barely conceded to certain persons, and those laws concerning various penalties against the different heretics, shall remain in full force, and not even a special grant of imperial favor impetrated contrary to the laws shall avail.
None of the heretics shall be given permission to lead again to their own baptism either freeborn persons or their own slaves who have been initiated into the mysteries of the orthodox Church, nor indeed shall they be allowed to prevent from following the religion of the Catholic Church those persons whom they have bought or have possessed in any way and who are not yet adherents of their superstition. If any person should administer such baptism or should permit it to be administered to him and should not report the fact, if he is freeborn, he shall be condemned to exile and a fine of ten pounds of gold, and to both offenders shall be denied the right to make a testament or a gift.
We decree that all the foregoing provisions shall be so enforced that no judge may order a minor punishment or no punishment at all for such a crime when it is reported to him, unless he himself is willing to suffer the penalty that through connivance he has remitted for others (428).
8 (18) Emperors Honorius and Theodosius Augustuses to Anthemius, Praetorian Prefect.
The governors of the provinces shall prohibit the Jews, in a certain ceremony of their festival1 Haman
That is, the Jewish festival of Purim.
in commemoration of some former punishment, from setting fire to and burning a simulated appearance of the holy cross, in contempt of the Christian faith and with sacrilegious mind, lest they associate the sign of Our faith with their places. They shall maintain their own rites without contempt of the Christian law, and they shall unquestionably lose all privileges that have been permitted them heretofore unless they refrain from unlawful acts (408).
10 (10) The same Augustuses [Valentinian, Theo-dosius, and Arcadius] to Albinus, Praetorian Prefect.
No person shall pollute himself with sacrificial animals; no person shall slaughter an innocent vie-tim; no person shall approach the shrines, shall wander through the temples, or revere the images formed by mortal labor, lest he become guilty by divine and human laws. Judges also shall be bound by the general rule that if any of them should be devoted to profane rites and should enter a temple for the purpose of worship anywhere, either on a journey or in the city, he shall immediately be compelled to pay fifteen pounds of gold, and his office staff shall pay a like sum with similar haste unless they resist the judge and immediately report him by a public attestation. Governors with the rank of consular shall pay six pounds of gold each, their office staffs a like amount; those with the rank of corrector or of praeses shall pay four pounds each, and their apparitors, by equal lot, a like amount (391).
10 (24) The same Augustuses [Honorius and Theodosius] to Asclepiodotus, Praetorian Prefect.
(After other matters.) We punish with proscription of their goods and exile, Manicheans and those persons who are called Pepyzites. Likewise, those persons who are worse than all other heretics in this one belief, namely, that they disagree with all others as to the venerable day of Easter, shall be punished with the same penalty if they persist in the aforesaid madness.
But We especially command those persons who are truly Christians or who are said to be, that they shall not abuse the authority of religion and dare to lay violent hands on Jews and pagans who are living quietly and attempting nothing disorderly or contrary to law. For if such Christians should be violent against persons living in security or should plunder their goods, they shall be compelled to restore not only that property that they took away, but after suit they shall also be compelled to restore triple or quadruple that amount that they robbed. Also the governors of the provinces and their office staffs and the provincials shall know that if they permit such a crime to be committed, they, too, will be punished in the same way as the perpetrators of the crime (423).
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