* 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. 
 
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