Theodosius' Law on the Legal Holidays

L n D n th L n F rr t Th R n V tf Th d n r 8

Fritz Graf

Journal of Early Christian Studies Volume 22 Number 2 Summer2014 pp 219-242 (Article)

Published by The Johns Hopkins University PressDOI 101353earl20140022

For additional information about this article

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Journal of Early Christian Studies 222 219ndash242 copy 2014 Johns Hopkins University Press

The Theodosian Code (CTh) is cited after Th Mommsen P Kruumlger P Meyer eds Theodosiani libri XVI cum constitutionibus Sirmondianis et leges novellae ad Theo-dosianum pertinentes (Berlin Weidmann 1905) the translations follow (with minor changes) Clyde Pharr The Theodosian Code and Novels and the Sirmondian Consti-tutions A Translation (Princeton NJ Princeton University Press 1952) The Justin-ian Code (CJ) is cited after Corpus Iuris Civilis II Codex Iustinianus ed P Kruumlger 10th ed (Berlin Weidmann 1929 [originally 1877]) the translations are mine as are translations that are not otherwise credited For a useful collection of the religious legislation from CTh and CJ with Mommsenrsquos texts a French translation commen-tary and bibliography see Les lois religieuses des empereurs Romains de Constantin agrave Theodose II (312ndash438) SC 497 591 (Paris Eacuteditions du Cerf 2005 2009) I thank the two anonymous referees of the journal for their helpful suggestions

Laying Down the Law in Ferragosto The Roman Visit of Theodosius in Summer 389

FRITZ GRAF

The article looks at the ten constitutions and rescripts Theodosius promul-gated during his stay in Rome in June to August 389 after his victory over the usurper Maximus It understands Theodosiusrsquos activity as law-giver as part of his campaign to appear as the legitimate heir to a long series of exceptional emperors from Augustus to Trajan to Constantine with a deep concern for the civic side of Roman life with the exception of his decree against Man-ichaeans (CTh 1651) his other laws that concern religion are part of this overarching effort

INTRodUCTIoN

After his victory over Maximus Theodosius I spent more than two years away from Constantinople mostly in Milan during the summer of 389 from early June to late August or early September he stayed in the city of Rome It seems a strange choice to move from a North Italian city to Rome in June and to stay there during ferragosto but Romersquos aristocrats

220 JoURNAL oF EARLY CHRISTIAN STUdIES

1 The image of a Theodosius whose sensualism dictates his political decision returns in an amusing way in otto Seeck Geschichte des Untergangs der antiken Welt 5 2nd ed (Stuttgart Metzler 1920) 210

2 Pacatus Paneg 2 (12)473 (XII Panegyrici Latini ed R A B Mynors [oxford Clarendon Press 1964] 120) ut pompam praeeuntium ferculorum curru modo modo pedibus subsecutus alterno clarus incesso nunc de bellis nunc de superbia tri-umpharis Soz he 714 7 (Sozomenus Kirchengeschichte eds J Bidez and G C Hansen GCS [Berlin Akademie-Verlag 1960] 318) Theodosius arrives in Rome celebrates a triumph (ἐπινικίαν πομπὴν ἐπετέλεσε) and cleans up (εὖ διέθηκε) the Ital-ian church after Iustinarsquos deathmdashie makes Italy entirely orthodox after the death of the most assertive Arian at his Milan court see also Seeck Geschichte 5227 (ldquoals Triumphator zog er am 13 Juni 389 in die Welthauptstadt einrdquo) on the triumphal processions and its transformations in late antiquity see Michael McCormick Eternal Victory Triumphal Rulership in Late Antiquity Byzantium and the Early Medieval West (Cambridge UK Cambridge University Press 1986) (34ndash36 on Theodosius I) Augusto Fraschetti La Conversione da Roma Pagana a Roma Cristiana (Bari Lat-erza 1999) 47ndash63 but see Constantine Porphyrogenitus De insidiis 74 (ed de Boor 114) on Constantius II Synes ep 40 a letter to one Uranius accompanying the gift of a horse for hunting and ldquothe Libyan Triumphrdquomdashnot Uraniusrsquos if he rides in it but an otherwise unattested victory celebration

3 See note 6 below

having no real choice had all opted for Maximus and Theodosius needed to focus for some time on the mother city of Constantinople and to win the senators over he did so as I will show by setting a living example for the hard work and dedication one should expect from a good emperor At a time and in an environment where he had to prove the legitimacy of his treatment of Maximus whom he earlier had recognized as a co- Augustus where he needed to instill the feeling that his own dynasty was the necessary way to go and where (as Zosimus shows) at least some people regarded him as a hedonistic power-player such a demonstration would come useful1 He entered the city in a way that both his panegyrist and a later historian Sozomenus describe as a triumphmdashalthough tech-nically according to Augusto Fraschetti this was not a triumphus but an adventus because no emperor since Constantine would sacrifice to Jupiter optimus Maximus on the Capitole and deposit his victory crown in the lap of Jupiterrsquos image2 But in a way the distinction is somewhat otiose to his contemporaries as well as presumably to Theodosius himself his formal entry into Rome came as close to upholding Romersquos imperial tradi-tions as possible3 Shortly after he received his panegyric at a meeting of the senate we still have it the work of an otherwise little known Gallic orator Latinius Pacatus drepanius (whose recently published poems show him to be a Christian) who undertook the steep task of making everyone forget the other panegyric spoken in Milan by one of the most brilliant

GRAF THE RoMAN VISIT oF THEodoSIUS 221

4 Pacatusrsquos panegyric Panegyrici Latini 2 see also C E V Nixon Pacatus Pan-egyric to the Emperor Theodosius (Liverpool Liverpool University Press 1987) on a possible reason for his selection Cristiana Sogno Q Aurelius Symmachus A Politi-cal Biography (Ann Arbor MI University of Michigan Press 2006) 69 on Pacatus the Christian poet Anne-Marie Turcan-Verkerk Un poegravete latin redeacutecouvert Latinius Pacatus Drepanius paneacutegyriste de Theacuteodose (Brussels Eacuteditions Latomus 2003)

5 on Symmachusrsquos panegyric its history and Symmachusrsquos costly recovery from its consequences under Theodosius see Sogno Symmachus 68ndash76 (based on his let-ters) the panegyric was ldquoan unwelcome consequence of having powerful friends at courtrdquo (68)

6 Ut pompam praeeuntium ferculorum subsecutusmdasha crucial phrase to under-stand the parallels with the triumph (see note 2) strangely omitted in the translation of Nixon and Rodgers In Praise 515 (see next footnote) Already Cic Pis 61 talks about neglecta triumphalia fercula to indicate that he did not celebrate a triumph (A C Clark ed M Tulli Ciceronis Orationes 4 [oxford Clarendon Press 1920]) the fercula the litters or stretchers carried the images and the spoils that was exhib-ited in the triumphal procession see Mary Beard The Roman Triumph (Cambridge MA Belknap Press 2007) 143ndash86 We do not know what Theodosius exhibited but that there were fercula carried in front of an emperor at least for some time riding his chariot shows that he at least understood this as a triumph

7 Pacatus paneg 2(12) 473 (Mynors 120) qualem te Urbi dies primus invexerit quis in curia fueris quis in rostris ut pompam praeeuntium ferculorum curru modo modo pedibus subsecutus alterno clarus incessu nunc de bellis nunc de superbia tri-umpharis ut te omnibus principem singulis exhibueris senatorem ut crebro civilique

speakers of the era Q Aurelius Symmachus Eusebius in honor of Maxi-mus4 This explains why Pacatus focuses only on Theodosius although Valentinian II technically Augustus of the West must have been present as well In these troubled times a panegyric was a dangerous genre Sym-machusrsquos letters let us know what high price Symmachus later paid for his embarrassing undertaking yet at the time he was invited to speak in Milan one feels that he too had little choice5

Pacatus ends his panegyricus with a praeteritio that deserves to be cited in full After having described Theodosiusrsquos military exploits in great lengths he ends by saying that better orators will be able to narrate what happened once Theodosius came to Rome

the impression you made on the day you first entered the city how you behaved in the Senate house and the rostra how you followed the spoils that were carried in front of you6 now in a chariot now on foot distinguished on either mode of progress triumphant now in war now over pride how you showed yourself to all as a ruler to individuals as a senator how in your frequent and unpretentious public appearances you not only visited public buildings but hallowed with your divine footsteps private dwellings as well all the safer with your military guard removed for the vigilance of a devoted people7


progressu non publica tantum opera lustraveris sed privata quoque aedes divinis ves-tigiis consecraris remota custodia militari tutior publici amoris excubiis Translation after C E V Nixon and Barbara Saylor Rodgers In Praise of Later Roman Emper-ors The Panegyrici Latini (Berkeley CA University of California Press 1994) 515

8 Trajan Plin paneg 22ndash24 the citation (tu triumphum de super-bia principum egisti my translation) in 222 (Mynors 17) and Pacatusrsquos nunc de superbia triumpharis (Mynors 120) echoes this There are similar statements in the descriptions of the adventus of Constantius II in Ammian 161013 (critical) and of Honorius in Claud VI cons Hon 523ndash610 (panegyric) See Nixon and Rodgers In Praise 515 n168

9 Socr he 1841 see R Malcolm Errington ldquoChurch and State in the First Years of Theodosius Irdquo Historia 27 (1997) 21ndash72 here 45 Hartmut Leppin Theodosius der Grosse (darmstadt Primus 2003) 147ndash48

10 See John F Matthews Laying Down the Law A Study of the Theodosian Code (New Haven CT and London Yale University Press 2000) Fergus Millar A Greek

This can be seen as the description of an emperor who wanted to appear not as the successful warrior he was but as a peaceful citizen king in a tradition that goes as far back as Trajanrsquos entry into Rome Plinyrsquos panegy-ric had Trajan walking in his procession not riding nor being carried and thus (in Plinyrsquos words) ldquotriumphing over the arrogance of rulersrdquo and he described how he let his lictors walk at a distance while he walked among a throng of senators and knights8 But it can also be read as a description of the civilian virtues that the Roman aristocrats expected from the emperor after the turmoil of the past However one reads it it is worthwhile to compare it to Theodosiusrsquos work as a lawgiver in Rome

during his three months in Rome the emperor entered into a very close collaboration with the city prefect of Rome To us it is still visible in the excerpts of his letters to the prefect in the Theodosian Code that address a series of problems In his Church History Socrates seems to preserve a vague memory of this work when he claims that Theodosius ldquoremoved two most infamous abuses which existed in the cityrdquo but in his moral-istic zeal the historian selected two affairs that were not recorded in the Code9 The preserved texts are important complements to the short and biased reports by the historians on Theodosiusrsquos time in Italy between 388 and 390 Recent studies on the Theodosian Code have emphasized that the imperial letters although excerpted in the Code for their general importance originally were mostly individual answers from the imperial center to questions posed by one individual functionary rescripta not constitutiones to be technical they reflect problems and conditions in a specific location at a specific time as especially Fergus Millar has impres-sively demonstrated10 The template is Trajanrsquos short answer to Plinyrsquos long


Roman Empire Power and Belief Under Theodosius II (408ndash450) Sather Classical Lectures 46 (Berkeley CA University of California Press 2006)

11 Plin ep 1096 and 97 Tert Apol 27ndash9 tunc Traianus rescripsit (Tertullian Apologeacutetique ed Jean-Pierre Waltzig [Paris Belles Lettres 1929] 5)mdashas an orator Tertullian was well attuned to legal matters

12 Two CTh 14179 and 15125 are addressed to the Constantinopolitan pre-fect Proculus and concern problems of Constantinople somewhat surprising as this would have been Arcadiusrsquos domain and the Constantinopolitan prefect should have consulted him and not Theodosius see for the ldquocorrectrdquo procedure CTh 9219 of June 26 written in Constantinople and addressed to the comes sacrarum largitionum Tatianus on punishing the cataractae producers of fake coins the Greek term points to an Eastern problem I suspect that Theodosiusrsquos work on Rome triggered reforms for the sister city that he found important enough to implement over the head of his son especially since the young prefect the son of Tatianos had just been installed by Theodosius I omit from my discussion CTh 4223 and 8417 because their trans-mitted dates cannot be correct

13 on the family ldquoone of the great houses of the fourth centuryrdquo founded by the homonymous consul of 314 and praefectus urbi 313ndash15 (Alan Cameron The Last Pagans of Rome [oxford oxford University Press 2012] 138 with Macr sat 114 Praetextatos Flavianos Albinos Symmachos et Eustathios quorum splen-dor similis et non inferior virtus than of that of the great late Republican families [Macrobii Saturnalia ed I Willis Leipzig Teubner 1970 5]) see Ronald J Weber ldquoAlbinus The Living Memory of a Fifth-Century Personalityrdquo Historia 38 (1989) 472ndash97 on this prefect see Andreacute Chastagnol Les fastes de la Preacutefecture de Rome au Bas-Empire (Paris Nouvelles Eacuteditions Latines 1962) 233ndash36 PLRE 137ndash38 See also the detailed portrait by Edmond Lieacutenart ldquoUn courtisan de Theacuteodoserdquo Revue Belge de Philologie et drsquoHistoire 13 (1934) 57ndash82

14 on the two Albini in the Saturnalia the Caeionius Rufius Albinus (praef urbi 389ndash91) and Caecina decius Albinus (praef urbi 402) see Cameron Pagans (previ-ous note) 233ndash35

letter that describes how he dealt with Christians in his province Bithynia in the year 112 Pliny needed imperial guidance and confirmation for his way to deal with an entirely new situation and he got it But we also know from Tertullian that Trajanrsquos rescript was generalized as a constitution that guided all official actions against Christians in the second century11

THE TEN PRESERVEd TEXTS

The Theodosian Code preserves excerpts from ten letters written in Rome during summer 389 all but two addressed to Albino praefecto Urbi12 two more rescripts are not preserved but remembered by Socrates as we saw Among the many important Albini of the period Theodosiusrsquos addressee is identified without any doubt as Caeionius Rufius Albinus13 We know him also as an interlocutor in Macrobiusrsquos Saturnalia14 and perhaps more importantly from four statue bases from the Roman Forum in his role


15 The inscriptions CIL VI 3791a = 31413 36959 3791b = 31414 (ILS 789) 36960 (ILS 8950)

16 See Glen Bowersock ldquoSymmachus and Ausoniusrdquo in Colloque Genevois sur Symmaque agrave lrsquooccasion du mille six centiegraveme anniversaire du conflit de lrsquoautel de la Victoire ed Franccedilois Paschoud (Paris Belles Lettres 1968) 1ndash16 here 10ndash12

17 Paneg 2(12)404 423 etc Theodosius CTh 15148 (Milan January 14 389 to the praetorian prefect of Gaul on cleaning up the legal system of remnants of the period)

18 I thus do not see a need to wait for a fifth base to turn up

as praefectus urbi he had set up statues in honor of the three rulers Val-entinian II Theodosius and Arcadius and in memory of Theodosiusrsquos mother Thermantia The inscriptions on the bases give his full name and rank and most likely the statues were erected during the imperial visit15

The letters in the Code that Theodosius addressed to him range from June 17 389 to February 24 391 and the first letter we have to his suc-cessor Faltonius Probus Alypius is dated June 12 391 Caeionius Rufius Albinus must have entered office not very long before Theodosiusrsquos visit installed after the troubles with Maximus because he was reliable as were the many other members of the family who served in this function his family was very well connected and he must had kept some distance to Maximus unlike Symmachus but like Ausonius if he was as prudent a politician as this the length of his office should not surprise16 The hon-orary inscriptions make the not very subtle point of addressing all three emperors as extinctor tyrannorum ac publicae securitatis auctor a title that in reality only Theodosius could claim the tyranni being the one just executed Albinus follows the lead of the moment the emperor himself had described Maximus as tyrannnus in a letter from January 14 389 and Pacatus does so regularly in his panegyric17 The honor of Therman-tia but not of Valentinianrsquos mother Iustina is important as well after all Iustina had died in late 388 or early 389 as a victim of the deposed tyrant presumably at about the same time as Thermantia Political reasons must have been more important than religious considerations although Iustina was an Arian while Thermantia must have been a Nicene Catholic the inscription styles her not just as Theodosiusrsquos mother but also as grand-mother of Arcadius and Honorius ldquowho by the excellence of her nature has augmented the divine lineagerdquo (praestantia indolis suae augmenti divinam prosapiam) The new prefect had clearly realized that not the young Val-entinian but the young Arcadius and the much younger Honoriusmdashboth present in the citymdashrepresented the future of the empire18


19 Sen apoc 74

The first letter CTh 16518 dated June 17 orders the expulsion of the Manichaeans from the city of Rome If Theodosius arrived on June 13 the letter was written only four days after his arrival Then for an entire month nothing happened at least in legislation on July 17 Theodosius sent a letter to Proculus the urban prefect of Constantinople on the pro-tection and maintenance of public buildings (CTh 15125) Then fol-lows the first batch of letters to Albinus between July 25 and August 16 all dealing with technicalities of the law-courts on July 25 Theodosius writes on the appeal in lawsuits in urbe venerabili that deal with imperial money (CTh 113049) on August 8 there follows a long and seminal text on legal holidays (CTh 282 = CJ 11433) on August 16 on the necessity to bring defendants of sorcery to a speedy trial (CTh 91611 = CJ 9189) and on the compulsory service as mancipes administrative assistants (CTh12161) In between Proculus received instructions on handing out the annona to specific functionaries in Constantinople (CTh 14179 July 26) Towards the end of August the emperor finally dealt with some questions of supply on August 18 on restoring the grazing land of swine herders (CTh 1445 ldquoWe have learned that the resources of the swine herders have collapsedrdquo) on August 25 on restoring the privileges of the pork butchers that had been bestowed upon them by Gratian (CTh 1446 = CJ 11171) and three days later on a detail of the water rights for individuals (August 28 CTh 1525 = CJ 11433) We have no date for the two problems Socrates mentioned but that never made it into the Code on the destruction of the taverns that had been flourishing in the bakeries and warehouses that served the bread distribution and on the abolition of penal prostitution of adulteresses by other ways of punishing adultery

This looks like a very full agenda for the emperor and his advisors especially since most of the letters date in the six weeks between July 25 and August 28mdashthe hottest time in Rome when the leisured families were in their villas or on the shore and the courts had almost ceased to work This could have meant that fewer people were left who could distract the emperor more importantly the emperor set an example of diligence and dedication 350 years earlier another emperor with a problem of legiti-macy Claudius had made a point to sit in tribunal in July and August19 With the possible exception of the law on legal holidays all these letters are concerned with details and must have started as requests from Albinus I imagine the prefect taking part in prolonged meetings of the consilium


20 on consilium instead of the later consistorium see Francesca Amarelli ldquodai consilia principis al consistoriumrdquo in Atti dellrsquoAccademia Romanistica Constantiniana 10 Convegno internazionale in onore di Arnaldo Biscogno Il tardo impero Aspetti e significati nei suoi riflessi giuridici eds Giuliano Crifograve and Stefano Giglio (Napoli Edizioni Scientifiche Internazionali 1995) 187ndash94

21 [Pr] Quicumque maleficiorum labe pollutum audierit deprehenderit occu-paverit ilico ad publicum protrahat et iudiciorum oculis communis hostem salutis ostendat [1] Quod si quisquam ex agitatoribus seu ex quolibet alio genere hominum contra hoc interdictum venire temptaverit aut clandestinis suppliciis etiam manifes-tum reum malificae artis suppresserit ultimum supplicium non evadat geminae sus-picionis obnoxius quod aut publicum reum ne facinoris socios publicaret severitati legum et debitae subtraxerit quaestioni aut proprium fortassis inimicum sub huius vindictae nomine consilio atrociore confecerit (ed Mommsen Corpus 12463 trans Pharr Corpus 238)

while Theodosius cleaned up matters in Rome20 This cleaning up that so impressed Socrates (ldquothe emperor removed two most infamous abuses which existed in the cityrdquo) is clearly visible in most of the decisionsmdashthe swine herdersrsquo land somehow had been taken away by more powerful landowners or developers of suburban villas the privileges of the pork butchers had been neglected there were not enough people who wanted to serve as mancipes

oN THE PRoSECUTIoN oF SoRCERERS (CTH 91611)

As impressive as these matters is the situation that was behind the instruc-tion of how to deal with people accused of sorcery (CTh 91611)21

[Pr] If someone should hear of a person who is contaminated with the pollution of sorcery or if he should apprehend such a person or seize him he shall drag him out immediately before the public and shall show the enemy of the common safety to the eyes of the courts

[1] But if any charioteer or anyone of any other class of men should attempt to contravene this interdict or should destroy by clandestine punishment even a person who is clearly guilty of the evil art of sorcery he shall not escape the supreme penalty since he is subject to a double suspicion namely that he has secretly removed a public criminal from the severity of the law and from due investigation in order that said criminal might not expose his associates in crime or that perhaps he has killed his personal enemy by a more atrocious plan under the pretense of avenging this crime


22 See detlef Liebs ldquoStrafprozesse wegen Zauberei Magie und politisches Kalkuumll in der roumlmischen Geschichterdquo in Grosse Prozesse der roumlmischen Antike ed Ulrich Manthe and Juumlrgen von Ungern-Sternberg (Muumlnchen Beck 1997) 146ndash58 Carlo Castello ldquoCenni sulla repressione del reato di magia dagli inizi del principato fino a Costanzo IIrdquo in Atti dellrsquoAccademia Romanistica Constantiniana 8 Convegno Internazionale I problemi della persona nella societagrave e nel diritto del tardo Impero ed Giuliano Crifograve and Stefano Giglio (Naples Edizioni Scientifiche Internazionali 1991) 665ndash92

23 Constantine CTh 9163 (May 23 32124 or 31719) Constantius II 9164ndash6 Valentinian I 9167 Still to understand accusations of magic simply as hidden accu-sations of paganism is too simplistic pace Isabella Sandwell ldquooutlawing lsquoMagicrsquo or outlawing lsquoReligionrsquo Libanius and the Theodosian Code as Evidence for Legislation Against lsquoPaganrsquo Practicesrdquo in Understanding the Spread of Christianity in the First Four Centuries Essays in Explanation ed William Harris (Leiden Brill 2005) 87ndash124

The prosecution of sorcery (maleficium or magia) had a long history in Roman law In the Republic sorcery that damaged property rights was prosecuted according a clause in the Law of the XII Tablets whereas sor-cery that infringed upon the bodily integrity of a free person fell under the lex Cornelia de sicariis et veneficis that was mainly concerned with homicide since neither of these laws isolated sorcery as a special crime trials that focused on sorcery as the sole crime remained extremely rare even in imperial times and conscious emperors did not even pursue such an accusation22

Constantine put the prosecution of sorcery onto a new legal footing by allowing the prosecution of those who used magic (magicis accincti arti-bus) against the bodily or sexual integrity of free persons but he excepted healing and weather magic from prosecution and punishment and he separated it radically from astronomy or divination this turned harmful sorcery into a criminal act that was much more clearly defined than before Later emperorsmdashespecially Constantius IImdashmuddied the waters again23

Theodosius concentrated on a very real detail despite the somewhat emotional language of his letter Many people were apprehended as sor-cerers and killed while they awaited trial Among these defendants there must have been an unusually high death rate from torture maybe together with other more suspicious fatalities Thus the suspicion arose that these deaths had nothing to do with justice but rather helped guilty people By killing an accused person before the interrogations and the trial one could prevent him from naming accomplices especially oneself and onersquos friends or to accuse someone of sorcery was a good way to get rid of an innocent personal enemy who would die before any trial Not by chance the letter specifies only the charioteers as potential criminals Magic in connection with the chariot races was rampant and charioteers and their


24 A general survey in Henriette Pavis drsquoEscurac ldquoMagie et cirque dans la Rome antiquerdquo ByzF 12 (1987) (=Meacutelanges F Thiriet) 449ndash67

25 Cass var 3512 frequentia palmarum eum faciebat dici maleficum inter quos magnum praeconium videtur esse ad talia crimina pervenire necesse est enim ad perversitatem magicam referri quando victoria equorum meritis non potest applicari (Magni Aurelii Cassiodori Variarum libri XII ed Aring J Fridh CCSL 96 [Turnhout Brepols 1973] 63) See Parshia Lee-Stecum ldquodangerous Reputations Charioteers and Magic in Fourth-Century Romerdquo Greece amp Rome 53 (2006) 224ndash34 here 226

backers must have hired ritual specialists to perform the grisly binding spells whose lengthy texts we still possess and that send death and injury to the rival horses and their charioteers24 This remains true well beyond the time of Theodosius I and is the reason why this law was taken over into Justinianrsquos Code (CJ 9189) it remained relevant in Byzantine soci-ety At about the same time in Rome Theodericrsquos chancellor Cassiodorus knows that especially very successful charioteers were running the risk of being suspected of magic25

It is unlikely that Theodosius was himself aware of the problem It is one of the things to which a conscious urban prefect would be drawing the emperorrsquos attention he might even suggest the solution that the impe-rial letter would then spell out This fits the pattern of most of the other letters during Theodosiusrsquos Roman time as it fits the two cases mentioned by Socrates All this feels like intensive working sessions in which the pre-fect proposed a list of things that he needed clarified or changed with the emperor offering his answer after discussion with his inner circle supple-mented perhaps by some powerful senators that made up the consilium at his temporary court in Rome

It is another question whether these topics just happened to need a resolution whether the prefect offered all problems to the emperor or whether the emperor suggested to the prefect the areas he wanted to treat and Albinus came up with a list from which Theodosius chose what he wanted to be addressed We cannot decide among these three options but given Theodosiusrsquos clear wish to impress Rome its aristocracy and its inhabitants as an emperor who cared for the city the first option seems the most unlikely it is more than sheer happenstance that the topics he treated concerned heresy good administration of justice public morals and the supply of food and water


26 Omnes dies iubemus esse iuridicos [1] Illos tantum manere feriarum dies fas erit quos geminis mensibus ad requiem laboris indulgentior annus accepit aestivis fervoribus mitigandis et autumnis foetibus decerpendis [2] Kalendarum quoque Ianuariarum consuetos dies otio mancipamus His adiicimus natalitios dies urbium maximarum Romae atque Constantinopolis quibus debent iura deferre quia et ab ipsis nata sunt [3] Sacros quoque Paschae dies qui septeno vel praecedunt numero vel sequuntur in eadem observatione numeramus nec non et dies solis qui repetito in se calculo revolvuntur [4] Parem necesse est haberi reverentiam nostris etiam die-bus qui vel lucis auspicia vel ortus imperii protulerunt (ed Mommsen Corpus 12 87 trans Pharr Corpus 44) See CJ 11433 Breviarium 282

27 Codex Theodosianus cum perpetuis commentariis Iacobi Gothofredi ed Ioan dan Ritter (Leipzig Weidmann 1736) 1141 Augustus Suet Aug 322 (ne quod

THE REFoRM oF THE LEGAL CALENdAR (CTH 2819)

Perhaps the most momentous decision was the reform of the legal calen-dar of the city of Rome (CTh 2819)26

[Pr] We order all days to be court days [1] It shall be lawful for only those days to remain as holidays which

throughout two months a very indulgent year has recognized as respite from toil for the mitigation of summer heat and for the harvesting of the autumn crops

[2] We also set aside the customary days of the Kalends of January as rest days To these we add the natal days of the greatest cities Rome and Constantinople to which the law ought to defer since it also was born of them

[3] We count in the same category the holy Easter days of which seven precede and seven follow and likewise the days of the sun which revolve upon themselves at regular intervals

[4] It is necessary for our anniversaries also to be held in equal reverence that is both the day which brought forth the auspicious beginning of our lives and the day which produced the beginning of our imperial power

The tough first sentencemdashomnes dies iubemus esse iuridicosmdashmust be the emperorrsquos answer to the prefectrsquos question which days should be business days The question must have been triggered by a lack of business days that slowed the courts down and created an unacceptable backlog Already Jacques Godefroy the seventeenth-century commentator on the Code pointed out that it was an ongoing concern of the emperors from Augus-tus to Marcus Aurelius to clean up the accretions of holidays in the legal calendar in order to have enough working days for the impending legal business27 to take good care of the legal system was a hallmark of a good


autem maleficium negotiumve inpunitate vel mora elaberetur triginta amplius dies qui honoraris ludibus occupabantur actui rerum accomodavit ldquoTo prevent any action for damages or on a disputed claim from falling through or being put off he added to the term of the courts thirty more days which had before been taken up with honorary gamesrdquo [trans J Rolfe LCL 31] We thus do not have an overall number of business days) Claudius was in the tribunal etiam suis suorumque diebus non-numquam festis quoque antiquitus et religiosis (Suet Claud 14 see dio 6043) and he did away with the break between summer and winter term but seems to have added the break days at the end of the year which Galba turned into business days as well (Sueton Galba 143 cp Sen apoc 74) Marcus Aurelius Historia Augusta Capito-linus Marcus Antoninus 1010 iudiciariae rei singularem diligentiam adhibuit fastis dies iudiciarios addidit ita ut ducentos triginta dies annuos rebus agendis litibusque disceptandis constituere ldquoTo the administration of justice he gave singular care He added court-days to the calendar until he had set 230 days for the pleading of cases and judging of suitsrdquo (trans david Magie LCL 139)

28 See the passages on Claudius and Marcus Aurelius in the preceding note in Sen apoc 74 Claudius claims ius dicebam totis diebus mense Iulio et Augusto and his Apollo predicts of Nero legum silentia rumpet apoc 41 v 23 (Seneca Apocolocyn-tosis ed P T Eden [Cambridge UK Cambridge University Press 1984] 34 and 40)

29 CJ 3123 (April 13 323) A nullo iudice praesumi decet ut auctoritate sua ferias aliquas condat nec enim imperiales ferias vocari oportet quas administrator edixerit ac per hoc si nomine eximuntur etiam fructu carebunt

30 Augustus Suet Aug 322 (note 14) Characteristically Claudius personally lived up to this sitting in court even during his own anniversaries Suet Claud 14 (above note 27)

emperor28 The accretion of holidays was due to an ever-growing number of honorary days for emperors and their relativesmdashthe birthdays of members of the ruling family accession days victory days the arrival in Rome or Constantinople This explains why Constantine another emperor with a keen sense for the law insisted on the imperial monopoly for determining festival days no administrator should have the right to establish feriae of his own or call them imperialesmdashpresumably to prevent abuse by adula-tion29 But the accretion was inherent in the imperial system from the time of its foundation Already Augustus with clear insight into the problems had declared all honorary days as legal business days30mdashwhich did not prevent that during the period we can observe in the late Republican and early Imperial stone calendars a day originally marked on these calendars as F (fastus a business day) or C (comitialis a legal business day as long as there were no comitia) turned into NP (nefastus publicus) and thus made legal business impossible To mark the single days in this way on a publicly visible calendar gave the impression of some sort of control and demonstrates the relevance of these days In the late antique calendars of Philocalus and Polemius Silvius these letters have disappeared although othersmdashthe traditional letters for days for the nundinae and new ones for


31 Henri Stern Le calendrier de 354 Eacutetude sur son texte et ses illustrations Insti tut Franccedilais de Beyrouth Bibliothegraveque archeacuteologique et historique 55 (Paris Imprimerie Nationale Librairie orientaliste Paul Geuthner 1953) 55ndash57

32 on this development see Andreacute Chastagnol La preacutefecture urbaine agrave Rome sous le Bas-Empire (Paris Presses Universitaires de France 1960) 84ndash136

33 The Latin text is ambiguous the Visigothic interpretatio of the Theodosian law understands it as two months (but when spelling out the exact dates is in fact closer to one month each) see Max Conrat Breviarium und Roumlmisches Recht im fraumlnki-schen Reich (Leipzig Hinrich 1923) 434ndash36 The Greek translation in the so-called Basilika the ldquoImperial Lawsrdquo give one month for either break Basilika 71723 and 25 see H J Scheltema and N Van der Wal eds Basilicorum libri LX Series A volumen I Textus librorum IndashVIII (Groningen and Gravenhage J B Wolters and Martinus Nijhoff 1955)

34 Stat Silv 4439ndash42 (the harvest season emptied the forum and legal strife was pausing) Plin ep 8212 (he talks about Iulio mense quo maxime lites interquiescunt but he still might go to court sometimes in the early morning See C Plini Secundi Epistularum libri decem ed R A B Mynors [oxford Clarendon Press 1963] 252) and Gell 9151 (cum Antonio Iuliano rhetore per feriarum tempus aestivarum dece-dere ex urbis aestu volentes Neapolim concesseramus A Gellii Noctes Atticae ed P K Marshall [oxford Clarendon Press 1968] 1299]) In Senecarsquos parody Claudius was proud to have been sitting in the tribunal even in July and August apoc 74

35 Ulp dig 2121 oratione divi Marci (from bk 4 De omnibus tribunalibus) 2122 eadem oratione in senatu habita (from bk 5 Ad edictum) = P Krueger and Th Mommsen Digesta Iustiniani Augusti Corpus Iuris Civilis 11 (Berlin Weid-mann 1868) 57

36 Ulp dig 2124 (libro primo Ad edictum) repeated in the Visigothic interpre-tatio to the Theodosian law

the planetary week and phases of the moonmdashare written for the recipi-ents of these calendars business days were irrelevant31 the law became the almost exclusive monopoly of the urban prefect publication was no more necessary32 This explains why Theodosius begins his letter with such a bald and surprising statement

After the radical principle he adds the exceptions in the view of the legal calendar holidays are exceptions not the rule one big chunk of busi-ness time is taken out by the seasonal holidays one month in summer and one in fall33 The summer was slow in legal business already in the first century ce34 but it was Marcus Aurelius who as far as we know first formalized the two-month vacation into a law (which incidentally must mean that the calendar letters had been disappearing around this time)35 We also know that sensibly enough the exact dates were left to the pro-vincial governors because the different climates in the empire would have made a rigid rule impractical36

Then there are the traditional festivals Theodosiusrsquos text does not con-tain any of the great festivals days of pagan Rome that were purported


37 Michele Renee Salzman On Roman Time The Codex-Calendar of 354 and the Rhythms of Urban Life in Late Antiquity (Berkeley CA University of California Press 1991)

38 Sollemnes paganorum superstitionis dies inter feriatos non haberi olim lege reminiscimur imperasse CTh 2822 Since Arcadius became emperor only in Janu-ary 395 olim is somewhat hyperbolic

39 See especially Fraschetti Conversione (above note 2) 9ndash3140 In general Michel Meslin La fecircte des calendes de janvier sous lrsquoEmpire romain

Collection Latomus 115 (Brussels Latomus 1970) on the Byzantine continuation see Anthony Kaldellis ldquoThe Kalends in Byzantium 400ndash1200 Ad A New Interpretationrdquo Archiv fuumlr Religionsgeschichte 13 (2011) 187ndash203 on the opposition of the Church fathers see Fritz Graf ldquoFights about Festivals Libanius and John Chrysostom on the Kalendae Ianuariae in Antiochrdquo Archiv fuumlr Religionsgeschichte 13 (2011) 175ndash86

41 Athen 863 361F ἔτυχεν δὲ οὖσα ἑορτὴ τὰ Παρίλια μὲν πάλαι καλουμένη νῦν δὲ Ρωμαῖα τῆι τῆς πόλεως Τύχηι ναοῦ καθιδρυμένου ὑπὸ τοῦ πάντα ἀρίστου καὶ μουσι-κωτάτου βασιλέως Ἀδριανοῦ ἐκείνην τὴν ἡμέραν κατrsquoἐνιαυτὸν ἐπίσημον ἄγουσι πάντες οἱ τήν Ῥώμην κατοικοῦντες καὶ οἱ ἐνεπιδημοῦντες τῆι πόλει (Athenaei Naucratitae Deip-nosophistarum libri XV ed G Kaibel [Leipzig Teubner 1887] 2291) Natalis urbis Romae in the Feriale duranum R o Fink A S Hoey W F Snyder ldquoThe Feriale duranumrdquo YCSt 7 (1940) 102ndash12 Natalis Urbis in the calendar of Filocalus Th Mommsen ed ldquoFasti anni Iulianirdquo in Inscriptiones Latinae Antiquissimae fasc 1

to go back to King Numamdashfestivals still performed in 354 according to the calendar written by Filocalus and celebrated well beyond this date37 But when a festival was celebrated it did not necessarily count as a legal holiday the absence of Numarsquos festivals from Theodosiusrsquos rescript does not mean they did not survive or Theodosius wanted them abolished on the contrary a rescript that Arcadius sent on July 3 395 to the corrector Paphlagoniae the regular judge of the province referred to an earlier con-stitution of his ldquothat the regular superstitious days of the pagans should not be counted as legal holidaysrdquo This sounds like a precision of Theodosiusrsquos constitution added by his successor and proves the survival of many old festivals38 The Kalendae Ianuariae the festival cycle that marked the New Year had no clear connection to the Roman gods despite the traditional sacrifice to Iupiter optimus Maximus on January 1 that the new consuls performed Christian consuls since the days of Constantine had quietly skipped it39 January 1 moreover used to be traditionally a day of token business whereas the following days were holidays with the culmination of the Vota on January 3 the solemn prayers and good wishes for the rul-ing emperor no emperor did want to do away with this and the festival survived well into Byzantine time40 The same is true for the birthday of the city of Rome in the Republican calendar called Parilia and connected with the goddess Pales it was renamed Rhomaia under Hadrian but later calendars simply call it Natalis urbis (Romae) ldquoRomersquos Birthdayrdquo41 and


2nd ed (Berlin Reimer 1893) 262 Natalis Urbis Romae Parilia dicta de partu Iliae Polemius Silvius ldquoFasti anni Iulianirdquo 263

42 See R Malcolm Errington ldquoChurch and State in the First Years of Theodo-sius Irdquo Historia 27 (1997) 21ndash72

43 Stern Calendrier (above note 28) 33 (the gap) 70ndash88 (the imperial days)

the city of Byzantium developed its mirror festival If this is really what Theodosius wrote in and for Rome and not an interpolation by the editors of the Code under Theodosius II it means that the Romans celebrated not only the birthday of their city but also the birthday of Constantinople If we can rely on this although it is beyond proof it must mean that the former Westerner Theodosius wanted ritually to underline the unity of the empire and the key role Constantinople had to play in it This corre-sponds to his decision of a decade earlier after his accession in the middle of a Gothic war to abandon Thessalonica despite its strategic usefulness and to set up his permanent court in Constantinersquos city42

on the other hand to mark only two honorary days for each reigning emperor as legal holidays looks somewhat austere but it recalls Augustusrsquos rule that no honorary day was to be a holidaymdashmaybe someone in Theo-dosiusrsquos council remembered this In Filocalusrsquos calendar each consecrated emperor from C Iulius Caesar to diocletian had his anniversary and the emperors of the ruling Constantine dynasty from Constantius Chlorus onward had at least two days the physical and the imperial birthday the latter being the day of their accession to Caesar All in all in the year 354 the Romans celebrated twenty-six memorial days for the birthdays alone some of them marked by circus games and six additional days for events of the Constantinian dynasty these all with somewhat elusive ludi votivi43 Maybe all these days were still celebrated when Albinus was urban prefect with the birthdays and accession days of Theodosius Honorius and Arcadius added but of course those of Maximus already abolished The letter does not tell us Albinus would have known

To these days determined on the one hand by the necessities of the climate in an agrarian society and on the other hand by political consid-erationsmdashthe Kalendae with the Vota as main event no less than the hon-orary days of the ruling emperors and the birthdays of the two imperial citiesmdashTheodosius added specific Christian days the Sundays and the two weeks around Easter Easter as the oldest and most sacred Christian festi-val should not surprise us Since the reign of Valentinian I in the West the festival had been marked by an amnesty for minor criminals in 381 and again in 385 Valentinian II (or whoever inspired the boy emperor) con-firmed the amnesty for Italy although the list of exceptions was somewhat


44 Valentinian I CTh 9383 (Rome May 5 367 [369]) Valentinian II and Theo-dosius 380381 Const Sirm 7 and CTh 9386 (Rome 381 July 4) Theodosius CTh 9388 (Milan 385)

45 CTh 9354 (Thessalonica March 27 380) on another constitution inspired by Acholius Errington ldquoChurch and Staterdquo 37

46 CTh 2821 (May 27 392 to the praetorian prefect of oriens)47 Constantine prohibited legal business and work in the cities on Sundays but

allowed agricultural work because its success depended on the weather CJ 3122 (March 5 321) almost four months later he reiterated the prohibition of legal busi-ness but allowed emancipation and manumission CTh 281 (July 3 321)

48 CTh 2818 posted in Aquileia49 Quaresima Easter Christmas and Epiphany CTh 2824 (Ravenna February

4 405) the same and the apostolic passion days ie Peter and Paul CTh 1555 (Constantinople February 1 425) Sundays alone CTh 2820 (Constantinople April 17 392 circus games allowed on a Sunday when it is an imperial birthday) 2823 (Constantinople August 27 399 circus games theatrical performances and chariot races allowed on a Sunday when it is an imperial birthday) 2825 (Ravenna April 1 409 no exceptions at all to the Sunday prohibition)

50 Christrsquos birth Caesare et Paulo coss (year 1 pCn Chronica Minora saec IV V VI VII ed Th Mommsen vol 1 MGH Auct Ant 9 [Berlin Weidmann 1892] 56) Christrsquos Passion Gemino et Gemino coss (year 27 pCn Chron Min

expanded44 In a letter written by Theodosius in 380 in Thessalonica and addressed to the vicarius of Macedonia he declared Easter and the two weeks around it as free from public and private legal business perhaps this was suggested by Acholios the bishop of Thessalonica as were other decisions on church matters made in these early days in that city45 We have no document before our 389 Roman constitution that shows that Theodosius wanted this rule applied elsewhere as well three years later in 392 he applied it to the entire oriens but again we lack documenta-tion for an even wider application46

Sundays were kept free from litigation already by Constantine with the exception of manumission and emancipation47 Theodosius or Gra-tian repeated the prohibition on November 3 386 making any break a sacrilegemdashnot presumably for a pagan who was not bound by any rule to observe Sunday but certainly for a Christian48 In the early fifth cen-tury the holiness of Sunday Easter and other main Christian festivals was further increased by a series of prohibitions that concerned theatrical and other spectacles on these days49 The most elaborate constitution is one that Theodosius II addressed in 425 to the praetorian prefect of oriens it added the ldquocommemoration of the passion of the apostlesrdquo to the list of sacred days The apostles must be Peter and Paul whose arrival in Rome and passion the writer of the Filocalus calendar specifically marked in his list of consuls as he marked the birth and passion of Christ50


ed Mommsen 57) Peter and Paul arrival in Rome Galba et Sulla coss (year 33 his consulibus Petrus and Paulus ad urbem venerunt agere episcopatum Chron Min ed Mommsen 57) their passion coss Nerone Caesare et Vetere (year 55 his consulibus passi sunt Petrus et Paulus iii Kal Iul Chron Min ed Mommsen 57)

51 See Wilhelm Riedel and W E Crum eds The Canons of Athanasius of Alex-andria The Arabic and Coptic Versions (London and oxford Williams and Norgate 1904) 26f = Arabic fol 103b = sectl6 on the date see Riedel and Crum ldquoCanonsrdquo xxvxxvi

52 See Thomas C Lawler St Augustine Sermons for Christmas and Epiphany (Westminster Md The Newman Press 1952) 8ndash11 d Bernard Botte Les origines de la Noeumll et de lrsquoEacutepiphanie Eacutetude historique Textes et Eacutetudes Liturgiques 1 (Lou-vain Abbaye du Mont Ceacutesar 1932)

When one tries to summarize Theodosiusrsquos intention and achievement in the constitution on legal holidays in the city of Rome one has to stress the judicious mixture of traditionalism and innovation that characterizes the reform Theodosiusrsquos main interest was to free up enough business days for the courts not to Christianize Rome Still there is some Christianization despite the pagan addressee By declaring the fourteen days around Easter and all Sundays legal holidays on the same level as the seasonal holidays the Kalends of January and the honorary days Theodosius made these Christian days felt by all inhabitants of the city not just by Christians except in very urgent cases there were no legal services available on these days even to pagans regardless whether the law officers were Christians or pagans as Caeonius Rufius Albinus wasmdashon the other hand even a pagan traditionalist would have to go to court on one of the hallowed festival days that were thought to go back to King Numa In this respect Theodosiusrsquos constitution was an important step towards Christianizing the city of Rome and the pagan prefect had no choice but to go along But Theodosius was somewhat conservative in counting only Easter and the Sundays as non-business days not the other important Christian festivals Pentecost Christmas and Epiphany when editing Theodosiusrsquos text for the Code of Justinian in 528 the editorial committee added these festivals as did the jurists who wrote the interpretation for the Visigoth court in 506 Together with Easter these three were the major Christian holidays in the fourth-century East as the so-called canons of Athanasius confirm for late fourth-century Egypt51 and Augustinersquos sermons on Christmas and Epiphany demonstrate that they had the same status in the West at least in the early fifth centurymdashChristmas being somewhat more popular than Epiphany it seems52 There is a debate about the adoption of the two festivals in the West there is an increasing density of testimonies for both after the mid-fourth century only although Christmas might be attested


53 See the debate between Hermann Usener Das Weihnachtsfest Religionsge-schichtliche Untersuchungen 1 2nd ed (Bonn Friedrich Cohen 1911 [originally 1889 repr 1969]) and Botte Les origines

54 Tert bapt 192 (in a discussion of the most apt days for baptism) Pentecoste ordinandis lavacris laetissimum spatium est (Quinti Septimi Florentis Tertulliani Opera ed A Reifferscheid and G Wissowa CSEL 51 [Milan Hoepli 1890] 217)

somewhat earlier53 But whatever the details the two festivals were less firmly entrenched in Rome in 389 than Easter was this must have allowed Theodosius and Albinus to leave them out as they left out even honorary days of the dynasty of Constantine in order to achieve their goal of trim-ming off the exceptions It also might suggest that the bishop of Rome had less influence on the choice of days than the urban prefect had (we do not know whether he even took part in these deliberations)mdashwhich should not surprise in a matter of legal expediency Pentecost on the other hand well established already in Tertullianrsquos Africa could be left out from the list since it fell on a Sunday anyway54 But it still is curious that it is not named given that all later texts felt a need to remedy this Again Theo-dosius did not overtly push for a Christianization of the calendar and the bishop of Rome had not much say in the matter

on another level the impact of the constitution is less easily gauged on the surface it looks as if the main casualties in order to gain time for legal business were the honorary days out of more than twenty-six attested in the Calendar of 354 only four were considered legal holidays namely the physical and institutional birthdays of the two emperorsmdashprovided in the case of the birthdays of both cities (in my reading) Rome and Constanti-nople celebrated both Augusti Given the insistence of the letters always to name all Augusti this might well have been the case If the other hon-orary days were retained they were no legal holidays regardless whether they were celebrated with games or not We have no good reason to doubt that these days were celebrated in some form or other That they appear in the manuscript calendar of Polemius Silvius cannot be used either way since that calendar seems to be a purely antiquarian document based on the Calendar of 354

THE EXPULSIoN oF THE MANICHAEANS (CTH 16518)

Most of Theodosiusrsquos decisions concern either the law or the provision of Romemdashwith one glaring exception the very first letter addressed to Albi-nus only a few days after the emperorrsquos arrival ordered the expulsion of the Manichaeans It stands out from the rest of what the emperor did in


55 [Pr] Quicumque sub nomine Manichaeorum mundum sollicitant ex omni quidem orbe terrarum sed quam maxime de hac urbe pellantur sub interminatione iudicii [1] Voluntates autem eorundem quin immo ipsae etiam facultates populo publicatae nec vim testamentorum teneant nec derelinqui per eos aut isdem fas sit Nihil ad summum his sit commune cum mundo (ed Mommsen Corpus 12861 trans Pharr Corpus 453)

56 CTh 1657 given in Constantinople on May 8 381 to Eutropius the prae-fectus praetorio (of oriens)

57 CTh 1659 March 31 382 to Florus the praefectus praetorio for oriens (July 381 to Spring 383)

58 CTh 1653 (Trier March 2 472) on P Ampelius praef urb Rom from Jan 1 371 to July 5 3712 see Chastagnol Les Fastes (above note 13) 185ndash88 no 71

this summer both by its date and its content a measure against heretics this needs an explanation But again the text first (CTh 16518)55

If any persons should disturb the world under the name of Manichaeans they shall indeed be expelled from the whole world but especially from this city under threat of judgment

[1] Moreover given that the property of these people shall be confiscated to the people their wills shall not have the force of testaments nor shall it be lawful that any property be left through them or to them In short they shall have nothing in common with the world

A few years earlier in 381 Theodosius and Gratian had issued a con-stitutions against the Manichaeans continuing earlier imperial measures it was addressed to the Praetorian Prefect of oriens and thus concerned only his domain roughly the East of the Empire56 The constitutionmdashin a rare retroactive measuremdashprohibited testaments of Manichaeans except if the children had left the sect banned the visible establishment of Manichaean shrines and meeting halls in any city or town and pro-hibited Manichaeans to disguise themselves under other more flattering or less obvious names such as Encratitae Apotactitae Hydroparastatae or Saccophori The measures were repeated and extended in the follow-ing year by prohibiting Manichaeans from founding their own monastic communities (solitarii) explicitly legalizing informers and expanding the Manichaean investigation against those who would not respect the Eas-ter date57 Expulsion or confiscation of goods are not mentioned nor do we hear of an extension of these measures to the West but it might not have been necessary In 372 Valentinian I continued earlier repression by sending a letter to Ampelius the prefect of Rome ordering the punish-ment of Manichaean teachers and the confiscation of their schools58 In a


59 CTh 167360 The original law CTh 167161 This extension was not taken up in Brev1621 62 CTh 16573 ne in conventiculis oppidorum ne in urbibus claris consueta

feralium mysteriorum sepulcra constituant Manichaeism thus has been observed in cities as well as on the countryside

63 Hier ep 22133 et quam viderint pallentem atque tristem miseram et Man-ichaeam vocant et consequenter tali enim proposito ieiunium haeresis est (Jerome Lettres ed J Labourt [Paris Belles Lettres 1949] 1123) on Priscillian see below

law written in Padua on May 23 383 to the praetorian prefect of Italy Valentinian II set a statute of limitation on lawsuits that questioned a will because the intestator at his death had been an apostate59 obviously the original lawmdashissued on May 2 381 and preserved only in the copy sent from Constantinople to the praetorian prefect of oriens Eutropiusmdashhad been applied empire-wide and it had triggered an avalanche of law-suits60 Interestingly enough the younger Valentinianrsquos rescript also extends the crime of apostasy to not just becoming a pagan but also a Jew or a Man-ichaean presumably also in order to channel a flood of legal contesta-tion of wills61mdashThe empire-wide application of the apostasy law of 381 could by the way argue that the Manichaean law of the same year had the same width of application as always the Theodosian Code excerpts only a regionally limited text The application of the law to clarae urbes (CTh 16573) can mean not just Constantinople and Antioch but also Alexandria and Rome well beyond the reach of the prefect of oriens to which the text is addressed if the ldquofamous citiesrdquo were already in the original text and not added by the editors of CTh the law was from the start intended to apply in the entire empire

The law of 381 is also important in two other respects By prohibiting ldquoto establish the usual sepulchres of their hellish mysteries in the meet-ing-places of towns or in the famous citiesrdquo62 the law shows how well institutionalized and how widespread Manichaeism was at the time and how the lawgivers regarded their liturgy (mysteria) as a satanic perversion of Christian liturgy At the same time the law adds obfuscation by pro-hibiting other groups that are named explicitly and that all are extreme ascetic groups in the East often lumped togethermdashEncratitae Apotacti-tae Hydroparastatae Saccophorimdashbut that the law understands as just a disguise for Manichaeism the meaning of Manichaeism is extended to almost any ascetic group Jerome could satirize it while Priscillian and his followers paid dearly for this vagueness63

But despite all this at least in the Rome of the 380s the rather large Manichaean community felt safemdashsafe enough to Augustine new to Rome


64 Aug conf 51018 1323 on the good reasons Symmachus had to send Augustine to Milan see Peter Brown Augustine of Hippo (London Faber amp Faber 1967) 70ndash71 Jennifer V Ebbeler ldquoReligious Identity and the Politics of Patronage Symmachus and Augustinerdquo Historia 56 (2007) 230ndash42

65 The list of crimes in Sulp Sev chron 2508 convictum maleficii nec dif-fitentem obscenis se studuisse doctrinis nocturnos etiam turpes feminarum egisse conventus nudumque orare solitum (Sulpice-Seacutevegravere Chroniques ed Ghislaine de Senneville-Grave SC 441 [Paris Cerf 1999] 342) see especially Henry Chadwick Priscillian of Avila The Occult and the Charismatic in the Early Church (oxford Clarendon Press 1976) Virginia Burrus The Making of a Heretic Gender Author-ity and the Priscillianist Controversy (Berkeley CA University of California Press 1995) Whereas contemporaries were more impressed by the label Manichaean later reception focused on magic see Alberto Ferreiro ldquoSimon Magus and Priscillian in the lsquoCommonitoriumrsquo of Vincent of Leacuterinsrdquo VC 49 (1995) 180ndash88

and ill to be accepted and to convalesce in a Manichean household in 383 and in the following year to an unknown Manichaean to recommend Augustine to the Urban Prefect Symmachus for the post as professor of rhetoric at the court of Milan and to Symmachus to take up the recom-mendation and send the young man to Milan64 obviously the Eastern prohibitions had not really made it to Rome and the pagan nobility felt no urge to repress Manichaeans

Why then did Theodosius at the end of the same decade feel the need to send a letter on exiling Manichaeans to the new prefect of Rome so shortly after the imperial adventus in the city and underscoring the need to expel them from the very city he was in (quam maxime de hac urbe) There is always the possibility that he acted of his own but in imperial legislation this is the exception and not the rule So we have to explore the option that he had been asked to write such a letter The most likely person to ask for an opinion on a legal matter of course is the responsible official the urban prefect of Rome and his question would have been what to do with the Manicheans in Rome given the legal actions taken against them everywhere else after the law of 381 that Albinus surely knew If this was the case the new prefect might have asked in order rather to advertise his political correctness than because he did not know what to do

An alternative is the bishop of Rome Siricius in office since 384 when his ruthless and long-living predecessor damasus had died To a Roman bishop the easy life of the Roman Manichaeans must have been a scan-dal and he had a demonstrated interest in them or rather in Priscillian denounced by some as a Manichaean although convicted and executed as a sorcerer with a history of sexual transgressions that was said to be dis-guised as asceticism65 After Priscillianrsquos execution in presumably 387 at


66 on the date see especially A R Birley ldquoMagnus Maximus and the Perse-cution of Heresyrdquo Bulletin of the John Rylands University Library 66 (198384) 13ndash43 here 28ndash33

67 Preserved in the Collectio Avellana ep 40 (CSEL 3590) 68 Par 4 Ceterum quid adhuc proxime proditum sit Manichaeos sceleris admit-

tere non argumentis neque suspicionibus dubiis vel incertis sed ipsorum confessione inter iudicia prolatis malo quod ex gestis ipsis tua sanctitas quam ex nostro ore cog-noscat quia huiuscemodi non modo facta turpia verum etiam foeda dictu proloqui sine rubore non possumus (ed CSEL 3590 trans P R Coleman-Norton Roman State and Christian Church [London SPCK 1966] 3401) Against Chadwick Pris-cillian 147 who thought that Siricius wrote mainly about the Priscillian affair and censured Maximusrsquos behavior Birley ldquoMagnus Maximusrdquo 37 argued that ldquothere is no warrant for the assertion that Siricius had written in the first instance about the Priscillianistsrdquo Burrus ldquoThe Makingrdquo 95 follows him

the court of Maximus in Trier66 Siricius wrote a letter to the emperor it is lost but Maximusrsquos answer is preserved67 It opens with a strong affir-mation of his Catholic orthodoxy and the promise to refer the case of a priest Agricius whose ordination was doubtful to a bishopsrsquo synodmdashSiricius must have been wondering how much help he would get from the usurper compared to the young Valentinian II and his defiantly Arian mother Iustina Maximus always in need of powerful help gave the reas-suring answer In the last paragraph of his letter Maximus discusses the Priscillian affair In view of a recent debate whether this too had already been part of Siriciusrsquos letter it is necessary to give the text

Moreover as to what crime the Manichaeans have confessed according to a recent report and not in accusations or vague and uncertain suspicions but through their confession in a court of law I prefer that Your Holiness learns from the very acts and not from my mouth such things are not only atrocious when they are done but also shocking when they are said and I cannot talk about them without embarrassment68

The introductionmdashceterum followed by an indirect interrogative clausemdashis typical letter style to answer a question asked in the previous letter Maxi-mus uses ceterum also in his second paragraph to introduce the Agricius affair which doubtless was in Siriciusrsquos letter We thus can be relatively cer-tain that Siricius wanted some information on the trial of Priscillian if we take Maximusrsquos reaction seriously the bishop most likely asked about the legal reason for the execution given that no imperial rescript had defined Manichaeism as a capital crime Maximusrsquos written answer shows that it could not be heresy but something more hideous and morally offensivemdashexactly the combination of sorcery and gross sexual misconduct that Sul-picius Severus describes in his account of the affair Together with the let-ter Maximus sent Siricius the minutes of the trial (acta) they might well


69 As Priscillian himself shows Tract 250 (CSEL 184030) 70 Sulp Sev chron 247671 I realize that this is another although in itself flimsy argument for dating the

execution of Priscillian late72 Liber pontificalis 40 (ed Mommsen 86) Hic invenit Manichaeos in urbe quos

etiam exilio deportavit et hoc constituit ut si quis conversus de Manichaeis rediret ad ecclesiam nullatenus communicaretur nisi tantum religatione monasterii die vitae suae teneretur obnoxius

have been the source for Sulpiciusrsquos account as well This also must mean that already Siricius had used the term Manichaei the term would have been somewhat strange and inopportune if Maximus had introduced it to characterize defendants executed for sorcery even though earlier enemies had used the term against them69

We can easily guess why Siricius had such an interest in the crime of Priscillian and his fellow offenders especially in the context of a letter that explored the religious reliability of the usurper on the (implied) backdrop of Valentinianrsquos Arianism if Maximus needed friends to bolster his power Siricius needed friends to deal with the Manichaeans at home In this light Maximusrsquos hesitant answer is understandable he had no interest to tell Siricius straight-out that Priscillian had not been tried as a Manichaean but for other crimes

Bishops were known to have pushed emperors for legislation that helped them among many others Priscillianrsquos enemies had sought and obtained from Gratian a rescriptum to expel all heretics according to Sulpicius Severus70 If Siricius sought something like this from Maximus the usurper did not live long enough to help not two years after his let-ter he was dead71 The man who overthrew executed and succeeded him Theodosius was the obvious target for a letter from Siricius to help him with his problemmdashor maybe the bishop had even the intelligence to go through the new prefect obliging himself to Albinus for a useful tip Theodosius in turn must have felt that he needed to underscore that in this he followed Maximus and to impress on Romersquos senators that Rome was no safe haven for Manichaeans and could not make lightly of an imperial decree of Valentinian I

However this was the request had unexpected success as soon as the victorious emperor was in town the prefect received the rescript And measures against the Roman Manichaeans were neither slow nor clement In its entry on Siricius the Liber Pontificalis claims that the pope found and expelled Roman Manichaeans and that he severely restricted their conversion to Christianity by making them join a monastery for the rest of their earthly life to prove their true penitence72 Chronology is vague


as always in this chronicle but a connection with Theodosiusrsquos rescript is tempting provided the account is reliable The claim to have found Mani-cheans in the city is a formula ascribed to many fourth- and fifth-century popes and thus fairly worthless as factual information and expulsion was not Siriciusrsquos business but the prefectrsquos the chronicle ascribed to its hero the reaction of Albinus to the imperial ordermdashmaybe not fully without justification if Siricius provoked the emperorrsquos letter The rest of the infor-mation is specific and might deserve more trust Conversion is certainly the bishoprsquos business and it was cleverly attractive instead of being expelled expropriated and left without valid wills many Roman Manichaeans might have preferred to convert to orthodoxy This resulted in so many requests that Siricius had the luxury to be choosy and test the sincerity of conversion He did so in a rather underhanded way to spend the rest of onersquos life in a monastery was only marginally preferable to exile at least when regarded in purely secular terms

SUMMARY

Theodosiusrsquos legal work in the summer of 389 in Rome gave Theodosius the opportunity to advertise himself as a just and concerned ruler living up to the image Pacatus had drawn in his panegyricus of an emperor who sought contact with the senators and citizens of Rome and felt so protected by them that he did not surround himself with bodyguards His interest in public morals as well as in the supply of water and pork advertised this closeness his fair treatment of persons accused of sorcery recommended him as a just and unprejudiced ruler and he cleaned up many items in a court system that might have been almost as slow as it is in modern day Italy At the same time the presence of a hard-working emperor in the city could be seen as the hopeful beginning of a new epoch Theodosiusrsquos activities during July and August 389 had sound political reasons But they had another consequence as well even if the emperor presented himself not as a fiery champion of Christianity but as the ruler over all Romans he nevertheless set an early accent with his decree against the Manichae-ans and given the looseness of the term other ascetic groups as well and he quietly helped to promote Christianity by emphasizing the role of Eas-ter and of Sunday He thus lived up to Pacatusrsquos final portrait of a civic emperor beloved by the population and at least Albinus and Siricius must have felt deeply satisfied with the Imperial Visitor

Fritz Graf is Distinguished University Professor in Classics at the Ohio State University

Journal of Early Christian Studies 222 219ndash242 copy 2014 Johns Hopkins University Press

The Theodosian Code (CTh) is cited after Th Mommsen P Kruumlger P Meyer eds Theodosiani libri XVI cum constitutionibus Sirmondianis et leges novellae ad Theo-dosianum pertinentes (Berlin Weidmann 1905) the translations follow (with minor changes) Clyde Pharr The Theodosian Code and Novels and the Sirmondian Consti-tutions A Translation (Princeton NJ Princeton University Press 1952) The Justin-ian Code (CJ) is cited after Corpus Iuris Civilis II Codex Iustinianus ed P Kruumlger 10th ed (Berlin Weidmann 1929 [originally 1877]) the translations are mine as are translations that are not otherwise credited For a useful collection of the religious legislation from CTh and CJ with Mommsenrsquos texts a French translation commen-tary and bibliography see Les lois religieuses des empereurs Romains de Constantin agrave Theodose II (312ndash438) SC 497 591 (Paris Eacuteditions du Cerf 2005 2009) I thank the two anonymous referees of the journal for their helpful suggestions

Laying Down the Law in Ferragosto The Roman Visit of Theodosius in Summer 389

FRITZ GRAF

The article looks at the ten constitutions and rescripts Theodosius promul-gated during his stay in Rome in June to August 389 after his victory over the usurper Maximus It understands Theodosiusrsquos activity as law-giver as part of his campaign to appear as the legitimate heir to a long series of exceptional emperors from Augustus to Trajan to Constantine with a deep concern for the civic side of Roman life with the exception of his decree against Man-ichaeans (CTh 1651) his other laws that concern religion are part of this overarching effort

INTRodUCTIoN

After his victory over Maximus Theodosius I spent more than two years away from Constantinople mostly in Milan during the summer of 389 from early June to late August or early September he stayed in the city of Rome It seems a strange choice to move from a North Italian city to Rome in June and to stay there during ferragosto but Romersquos aristocrats




3 See note 6 below


































19 Sen apoc 74





























































































































SUMMARY






3 See note 6 below


































19 Sen apoc 74





























































































































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19 Sen apoc 74





























































































































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SUMMARY



Theodosius' Law on the Legal Holidays

Documents

Transcript of Theodosius' Law on the Legal Holidays