99 See Juster, Juifs, vol. 1, p. 226 ss.

100 L. Visig. 12.2.5–9. Thus 12.2.5: “No Jew shall on the fourteenth day of any month (a reference to the month of Nissan, cf. Exod. 12,6) celebrate the Passover, nor shall he perform any of the ceremonies customary at such times. Nor shall any Jew, in honour of his ancient, erroneous belief, observe any festival days, great or small; or attempt their observance; or hereafter keep the Sabbath, or any other sacred days prescribed by his rites, or attempt to do so. Anyone detected violating this law shall be liable to the condemnation and penalty prescribed for the same” (i.e., those penalties described in 12.2.11 and cited in the following note); 12.2. 6–8 cited infra in nn. 191, 139 and 120 respectively. [Parkes, , Church and Synagogue, 359 s.Google Scholar; Thompson, , Goths, 206Google Scholar; King, , Law and Society, 133 ss.].Google Scholar

101 L. Visig. 12.2.11: “The following law is derived from others of great severity, which have been enacted to punish the perfidy of the Jews; and it is hereby decreed that whoever attempts to commit any of the crimes prohibited by former laws, or contained in any amendments to the same, or presumes to act in defiance of said laws, shall be either stoned to death, or burned by such of his own countrymen as may have entered into an agreement to do so. However, if the king, in his mercy, should decide to spare the life of such a criminal, he shall be delivered up as a slave to whomever the king may select, and all his property shall be given to others; and this shall be done in such a way that the culprit can never come into possession of his property again, or recover his liberty in the future.” The king thereby extends to all the Jews the penalties which the baptized Jews had suggested to enforce against themselves in the very terms of their placitum, cf. supra n. 34. [King, , Law and Society, at p. 133 n. 3Google Scholar: “Death by burning or stoning had been ordered as the regular punishment in Reccesvind's XII.2.11”.].

102 L. Visig. 12.3.1: “The second edict (i.e. L. Visig. 12.2.11 referred to in the preceding note) seem to us not only improper but even repugnant to our faith, in that it subjects to the same penalty those who are guilty of different offences. While there are different degrees of guilt according to the laws, the latter do not always impose different penalties, but many crimes are treated alike, and each offence is not punished according to the measure of its guilt; for it is evident that crimes of greater and lesser gravity should not be punished in the same manner; especially as our Lord has said in the Divine Law that the penalty shall be in proportion to the offence (Deut. 25, 2); and, therefore, this law (i.e. 12.2.12) which prescribes the penalty to be inflicted for the transgressions of the Jews shall be hereafter considered as of no validity and effect. [Parkes, , Church and Synagogue, 363Google Scholar; Thompson, , Goths at p. 235Google Scholar: “The King emphasized Reccesuinth's law against heretics in general: any public defence of heretical opinions would be punished by exile and the confiscation of property. If a man were found to hold heretical views through ignorance, he should be sent to the local bishop or priest for instruction; and if he failed to correct his beliefs he would be liable to the same penalty as the public champion of heresy. Jews were not allowed to read, or to be in possession of, books in which the Christian faith was criticized. The penalty was public decalvation and 100 lashes. Erwig directed that all children above the age of 10 years should be subject to the full ferocity of the punishment.” On the decalvatio, see Thompson's observation, Goths, p. 104: “I use the cowardly term ‘decalvation’ because I cannot decide whether the victim was scalped or whether he merely had his head shaved: see Cameron, Averil, Revue belge de philologie et d'histoire, xliii (1965), pp. 1203–16CrossRefGoogle Scholar, with bibliography, referring to the Merovingian practice.” See also Poliakov, L., The History of Anti-Semitism (New York) vol. 2, p. 18Google Scholar: “In case of transgression, the designate penalty was decalvatio. Scholars today are seeking in vain to determine the exact nature of this punishment.”].

103 See supra n. 92.

104 See infra n. 27B. [Thompson, , Goths at p. 24BGoogle Scholar: “The persons upon whom the King bestowed the enslaved Jews would have to sign an undertaking never to allow them to practise their rites. Finally, their children would be taken from them when they reached the age of 7 years and would be handed over to devout Christians to be brought up and in due course married off to Christians. No doubt some bishops and judges found ways and means to avoid enforcing these appalling regulations. No doubt, too, the law was rigorously enforced in several areas of Spain; and for nearly twenty years the victims had to wait before their liberators landed at Gibraltar. A Jew named Paragorus has left us a melancholy memorial dating from Egica's second year, 688. His three children had died of the plague that was ravaging Gallia Narbonensis at that time; and he set up their tombstone in Narbonne. The inscription includes a Hebrew phrase written in Hebrew characters, and has carved upon it a five-branched candlestick. Paragorus at least was not afraid to proclaim his Jewish faith.”].

105 Cf. L. Visig. 12.2.4: “No Jew … shall conceal himself … after having taken to flight”; L. Visig. 12.3.9: “If any Jew … should conceal himself in any part of our kingdom; or should escape to foreign countries, for the purpose of concealment; or if anyone should offer a hiding-place to a transgressor of this law, knowing he is a fugitive; any of the said parties guilty of any of the above-named offences, shall be punished with a hundred lashes, have his head shaved, and, after his property has been confiscated for the benefit of the king, shall be subjected to the miseries of slavery;” 12.3.20: even Jewish travellers are examined, lest they “make use of any of the said (rites and ceremonies), while wandering hither and thither, or … seek a hiding-place anywhere, in which to observe the same rites”; and cf. infra n. 115. [See Blumenkranz's, remarks in Juifs et Chrétiens, p. 313Google Scholar: “The Jews who feigned to submit to baptism but secretly remained faithful to Judaism probably convened in clandestine reunions to hold their religious ceremonies, save when they thought that caution required, on account of the peril to which they were exposed, that they refrain from all their communal rites. In any event, in times of persecution the “clandestine synagogue” was not something to cause surprise: we already noticed such a practice when an edict for compulsory baptism was made under Chilperic.” And see ibid. n. 84: “Juster goes somewhat beyond the meaning of the texts in his effort to discover some reference to clandestine synagogues in passages where the law simply mentions hiding places where baptized Jews would seek shelter from the special measures of supervision taken against them.” Blumenkranz's note is strange: in fact Juster only talks of hiding places (cachettes) and not, as intimated by Blumenkranz, of clandestine synagogues.].

106 Infra text at n. 115.

107 Brev. 2.8.3. [Parkes, , Church and Synagogue, 352Google Scholar: “no actions were to be brought against Jews on their religious holidays. While all the abusive and petulant phraseology of Theodosius II on relations between Jews and Christians was omitted, the actual content of his laws remained.”].

108 C.Th: 2.8.26. [See Pharr's translation: “The same Augustuses (Honorius and Theodosius) to Johannes, Praetorian Prefect. (After other matters.) On the Sabbath Day and on all other days at the time when the Jews observe the reverence of their own cult, We command that no one of them shall be compelled to do anything or be sued in any way, since it appears that the other days can suffice for fiscal advantages and for private litigation.

Given on the seventh day before the kalends of August at Rovenna in the year of the eighth consulship of Our Lord Honorius Augustus and the third consulship of Our Lord Theodosius Augustus.—July 26, 409; 412.

Interpretation: It is Our pleasure that no Jew shall be sued on the Sabbath Day, either for any fiscal advantage or for any business transaction whatsoever, because the day of their religion must not be disturbed by any legal action.” On this constitution see Biondi, B., Il Diritto Romano Cristiano (hereafter Biondi, D.R.C.) (Milan, 1952) vol. 1, p. 167Google Scholar; Seaver, J. E., Persecution of the Jews in the Roman Empire (300–438) (Lawrence, 1952) 62Google Scholar s. “To this the Codex Justinianus adds: “Likewise we decree that the Jews should not have permission to assemble on the same day when orthodox Christians con gregate, lest by chance the Christians be harmed through Jewish disturbance of the aforementioned holy days.” (C. J. 1.9.13).” See also Blumenkranz, , Juifs et Chrétiens, 308.Google Scholar].

109 Cf. supra n. 100.

110 L. Visig. 12.3.5: “… if any Jew should presume to celebrate the appearance of the new moon, or the Festival of Tabernacles, or the Sabbath, or any holidays, or should observe any other rites or ceremonies of his worship, he shall receive a hundred lashes, shall have his head shaved, and shall be subjected to the miseries of exile, and all his property shall be forfeited to the king; with the condition, however, that should be converted at any time, it may be restored to him; but if not, it shall remain in the possession of those upon whom it has been bestowed.” [Parkes, , Church and Synagogue, 364Google Scholar; King, , Law and Society, 134, 142.Google Scholar].

111 Such is the meaning of the last phrase in the preceding note. It will be noted that the period of exile incurred for the crime celebrating these holidays is not specified, but it was probably a lengthy one (exilio aiutino) for keeping Passover. Cf. the following note.

112 L. Visig. 12.3.4: “… that when any Jew celebrates the Passover according to the rites of his religion, he shall receive a hundred lashes, have his head shaved and be driven into perpetual exile, and his property shall be confiscated for the benefit of the royal treasury.” Cf. preceding note.

113 Cf. L. Visig. 12.3.22 cited supra n. 68.

114 L. Visig. 12.3.21: “Every colony of Jews, in whatever city or province they may be situated, shall visit the bishop or priest of the diocese upon the Sabbath, and upon other festival days, when they are accustomed to celebrate their rites; they shall not be permitted to wander about on said days; and during all such festivals, when they are suspected of performing their rites, they shall under no circumstances leave their homes without the permission of the priest.” Should no priest be available in the locality, those in the nearest vicinity are to appoint good Christian men or women in whose company the Jews and the Jewesses, respectively, shall be required to spend the holidays; and the penalty for transgressing Jews are, again, having his head publicly shaved and suffering the ignominy of one hundred lashes.” [Parkes, , Church and Synagogue, 365Google Scholar; King, , Law and Society, 134Google Scholar, s. “Celebration in the Jewish fashion of the Passover, the Feast of Tabernacles, the Sabbath and the lunar and other festivals was forbidden on pain of those same punishments which were imposed for the refusal of baptism. It was the responsibility of the clergy to ensure that local Jews were under worthy Christian supervision at the times of the Jewish festivals so that secret worship could not take place. The same determination to prevent Jewish circumvention of the law underlay the elaborate and surely unenforceable requirements concerning Jewish travel. The traveller was obliged to report to the local bishop, priest or judge when he arrived in a strange region: the cleric—or, presumably, the judge—was responsible for the Jew's good behaviour and had to give him, when he left, a letter detailing the times of his arrival and departure, as well as to notify the clerics who had charge of the areas through which he would pass. Evasion of these provisions, or failure to keep to his route, brought the offending Jew a lashing.”].

115 L. Visig. 12.3.20: “Where a Jew, residing in a city or province of our kingdom, makes application to a bishop, priest or judge of that diocese or district, and it appears from the testimony of ecclesiastical witnesses, that he has abandoned the observance of the Sabbath, and the practice of the rites and ceremonies usually observed by members of his sect; and that he did not make use of any of the same, while wandering hither and thither, or did not seek any hiding-place anywhere, in which to observe said rites; and that, while at home, he is known to have conferred with Christians of approved faith, partaken of food with them, and participated in the Christian communion; and upon such days as his ceremonies were accustomed to be practised, he resorted to the church to receive the salutory instructions of the bishops and the priests”; and he shall not depart from such priest until giving notice to the local priest. “And the said priest shall draw up a letter, written with his own hand, directed to those ecclesiastics, in whose jurisdiction said Jew represents that he is about to travel, in order that, all suspicion of fraud being removed, said Jew whether travelling or remaining in one locality, may not be subjected to religious restraint and discipline. If any Jew should violate this law, authority is given to any bishop or priest of the diocese, as well as to any judge, to punish him with a hundred lashes; nor shall he be permitted to return to his home, unless he is furnished with letters from the bishop or priest of the diocese in which he was unlawfully found. In said letters the number of days shall be especially noted; that is, dating from the time when said Jew made application to the bishop aforesaid, as well as those included in his absence until the day of his return.” [Parkes, , Church and Synagogue, 365Google Scholar; King, , Law and Society, 135Google Scholar (see the preceding note); Thompson, , Goths, 236Google Scholar s: “Exasperating restrictions were imposed on Jews who wished to travel. If a Jew journeyed from one city or province to another, he had immediately on his arrival at his destination to present himself to the local bishop, priest, or judge, who would see to it that he did not celebrate the Jewish Sabbath or any other festival. He had to lodge with devout Christians and eat with them and take the Christian communion. The local priest would inquire where he proposed to go next, and would write ahead to the priest of that place to warn him of the Jew's intended arrival. He might not return home until he had received a letter from the bishop or priest of each locality through which he made his way, stating the date of his arrival, the length of his stay, and the date of his departure. But he was not allowed to travel at all on the Jewish Sabbath or other feasts: on those days each Jewish community had to congregate with the bishop or judge. And it was necessary to declare that on these occassions bishops should not be left alone with Jewish women: any bishop who raped or had intercourse with them was to be unfrocked and exiled.

All punishments prescribed in these Christian laws were to be inflicted by the bishop, and the Jewish defendant was to have no advocate to speak for him. But Erwig, like other kings before him, expected that some bishops and judges would be reluctant to enforce such savage laws or would be bribed to ignore them: the fine for such an omission was 72 solidi. Judges should not act without the bishops' knowledge: otherwise, they might be open to bribery. A penalty was also prescribed for any cleric or layman who accepted a bribe from a Jew in return for concealing Jewish practices.”].

116 C. Th. 16.5.5. (425) [See Pharr's translation: “Emperors Gratian, Valentinian, and Theodosius Augustuses to Hesperius, Praetorian Prefect.

All heresies are forbidden by both divine and imperial laws and shall forever cease. If any profane man by his punishable teachings should weaken the concept of God, he shall have the right to know such noxious doctrines only for himself but shall not reveal them to others to their hurt. If any person by a renewed death should corrupt bodies that have been redeemed by the venerable baptismal font, by taking away the effect of that ceremony which he repeats, he shall know such doctrines for himself alone, and he shall not ruin others by his nefarious teaching. All teachers and ministers alike of this perverse superstition shall abstain from the gathering places of a doctrine already condemned, whether they defame the name of bishop by the assumption of such priestly office, or, that which is almost the same, they belie religion with the appellation of priests, or also if they call themselves deacons, although they may not even be considered Christians. Finally, the rescript that was recently issued at Sirmium shall be annulled, and there shall remain only those enactments pertaining to Catholic doctrine which were decreed by Our father of eternal memory and which We ourselves commanded by an equally manifold order, which will survive forever.”

Given on the third day before the nones of August at Milan.—August 3. Received on the thirteenth day before the kalends of September in the year of the consulship of Auxonius and Olybrius.—August 20, 379. On this constitution see: Parkes, , Church and Synagogue, 184, 241Google Scholar; Biondi, , D.R.C., 1, 291Google Scholar, 297, 302.].

117 Council of Narbonne (1 November 589), canon 4:

“Let no one, be he a freeman or a slave, a Goth, a Roman, a Syrian, a Greek or a Jew, perform any work on the Lord's day: neither shall anyone yoke his oxen, save where there is need to remove them to another place. And if anyone dares to act as aforesaid, he shall, if a freeman, pay six solidi or, if a slave, suffer a hundred strokes.” Gonzalez, Coll. can. 661 = Mansi, Conc. 9. 1016. [= Vives, , Concilios. 147.Google Scholar On this canon see Parkes, , Church and Synagogue, 354Google Scholar: “In the same year, that of the third council of Toledo, there was a council at Narbonne, which also dealt with various Jewish matters, but on questions of detail rather than principle. The Jews were strictly forbidden to work on Sunday.”].

118 Cf. infra n. 171. [See Blumenkranz's, observations: Juifs et Chrétiens, 308Google Scholar, n. 56: “Juster, , Condition légale 42 and 30Google Scholar, remarks that “since this provision has not received “royal confirmation, it was not binding as a rule of law”. It appears to us that, in view of the special conditions in which the Visigoths rule extended to Septimania, this could well have had local validity even without confirmation by the king. For the rabbinical regulations relating to dirges, see Perles, J., Die Leichenfeierlichkeiten im nachbibl. Judenthum in (1861) 10 MGWJ 383Google Scholar ss.” See also p. 315 ss.]

119 Placitum of the Jews under Chintila (ed. Ureña y Smenjaud, p. 573): “The rites of the Jews and their holiday ceremonial, their Sabbath and carnal circumcision, as well as all their other superstitions and rites and ceremonies, we do reject, abominate and execrate; and we promise to live according to the Catholic law by using the same food as the Christians, save that which is repugnant to us by its nature and not by superstition; for all what God has created is good.” L. Visig. 12.2.16: “We will not make any distinction in food, according to our ancient usages… With regard to the flesh of animals which we consider unclean, if we should be unable to eat the same on account of our ancient prejudices, nevertheless, when it is cooked along with other food, we hereby promise to partake of the latter with no manifestation of disgust or horror”.

120 L. Visig. 12.2.8: “The blessed apostle Paul said: ‘To the pure all things are pure’ (Tit. 1.5), but nothing is pure to those who are defiled, because they are unbelievers; and, for this reason, the execrable life of the Jews and the vileness of their horrible belief, which is more foul than any other detestable error, must be destroyed and cast out. Therefore, no Jew shall make a distinction between food which is clean and unclean, as established by the customs and traditions of his ancient rites. No one shall perversely refuse to eat food of any kind, whose condition is proved to be good. No one shall reject one article of food, and accept another, unless the distinction be such as is considered salutary and proper by all Christians. Anyone detected in the violation of this law shall be subjected to the punishment instituted for the same” (i.e., the sanction prescribed in 12.2.11 and cited supra n. 101).

121 L. Visig. 12.3.7: “The detestable Jewish custom, viler than any other superstition, dividing food into clean and unclean, accepts the former, while it rejects the latter. Whoever is convicted of the commission of the error of this practice, that is to say, who acts differently from the custom observed, under similar circumstances, by all true Christians, shall receive a hundred lashes and have his head shaved … The provisions of this law shall be observed in every respect concerning drink, as well as food; and the punishment hereinbefore specified shall be inflicted upon all who abstain from the wines or other beverages of Christians”. [But see Blumenkranz's observations, juifs et Chrétiens 307, n. 50: “Straining the sense of the Spanish laws, Juster goes so far, in his interpretation of L.V. 12.2.8, as to denounce their apparent monstrousness: abstaining from pork would have been tolerated by Erwig, when amending that law into L.V. 12.3.7, only in favour of baptized Jews, and not of unbaptized Jews! Indeed the text of the law reads: “…hii tales, qui fideles in reliquis conseruationibus approbantur, pro hac sola reiectione suillarum carnium ad iacturam legis superius conprehensam teneri non potuerunt”, so that only those of the baptized Jews who, by their behaviour in other respects had given complete satisfaction as to their faith, may be authorized to decline eating pork; the preamble of the law clearly shows that it only applies to baptized Jews, since it prescribes that, in matters of food, no further exemptions shall be allowed, than is the honourable custom of the Christian way of life. Juster shows the same inclination to read into the text of the law more than it actually contains, thus in L.V. 12.3.11 concerning the possession of Jewish literature, he describes it as applying to “any Jew or baptized Jew” (p. 32), although this text explicitly refers to the placitum, to the professio (pledge) containing a promise to desist possessing such books, so that the pledge made in the professio or in the placitum was imposed upon baptized Jews only”. See also King, Law and Society, 141, n. 2: “But the rejection of pork ‘natura … fastidiante’ was not seen as an indication of relapse in the case of a Jew who had made the profession (XII.3.7: ‘Si… christianitatis ab eis non defuerit votum’, where the conditional clearly points to the existence of others who had not made it). Compare also the phrases: ‘Qui fideles … approbantur … Quos manifesta operum Christi nobilitat fides’ with the designation of (baptised!) Jews elsewhere as infidi, perfidi, etc. An exemption concerning pork appeared already in the placita of Chintila's and Reccesvind's reigns: see Confessio vel professio CI, XII.2.17”].

122 Placitum, ed. Ureña y Smenjaud, op. cit., p. 573 s: “But also all the various Scriptures used by our tribe in the Synagogues, whatever be their authority in point of doctrine, and even such as are called ‘repetitious’ (Mishnah) or apocryphical, we promise to deliver in your presence, so that no trace remains with us of their sinister superstition. And we declare that all those of the speeches which we used to venerate under the Jewish rite, are despicable and abominable”. [But see already Justinian's Novella, 146 §2, in Parkes’ translation: “But the Mishnah, or as they call it the second tradition, we prohibit entirely. For it is not part of the sacred books, nor is it handed down by divine inspiration through the prophets, but the handiwork of man, speaking only of earthly things, and having nothing of the divine in it. But let them read the holy words themselves, rejecting the commentaries, and not concealing what is said in the sacred writings, and disregarding the vain writings which do not form a part of them, which have been devised by them themselves for the destruction of the simple. By these instructions we ensure that no one shall be penalised or prohibited who reads the Greek or any other language. And their elders, Archiphericitae and presbyters, and those called magistrates, shall not by any machinations or anathemas have power to refuse this right unless by chance they wish to suffer corporal punishment and the confiscation of their goods, before they yield to our will and to the commands which are better and dearer to God which we enjoin”.

On this paragraph of the Novella see Colorni, V., “L'uso del greco nella liturgia del Guidaismo Ellenistico e la Novella 146 di Giustiniano” (1964) 8 Annali di Storia del Diritto 53, n. 230Google Scholar: “È questa la prima della lunga seria di interdizioni del Talmud nel mondo romano-cristiano”, Juster, , Juifs, vol. 2, p. 159 ss.Google Scholar On excommunication, see A. Berger, “C. Th. 2, 1, 10, and C. J. 1, 9, 8 PR. A Perfect Example of an Interpolation Through Cancellation of a ‘non’” (1959) 1 IURA 22 and n. 29, and V. Colorni, op. cit. at p. 54, n. 233 with bibliography. On the Rabbinic sources see Leibson, G., “Determining Factors in Herem and Nidui (Ban and Excommunication) during the Tannaitic and Amoraic Periods”, in Shenaton ha-Mishpat ha-Ivri (Annual of the Institute for Research in Jewish Law) (Jerusalem, 1975) vol. 2, p. 292 ss.Google Scholar].

123 L. Visig. 12.3.11: “To show favour to those readers whom it is not right to assist, is rather a mark of wickedness than of piety. For this reason, where any Jew reads books, or studies doctrines, in which the Christian faith is denied, or keeps or conceals such books in his house, he shall either receive a hundred lashes in public, or shall have his head shaved. Let all persons be cautious and beware of having books containing such doctrines in their possession, or of studying the same, or of even meditating upon them. And if, henceforth, anyone should attempt to repeat such an offence, he shall receive a hundred lashes, shall have his head shaved, and shall be condemned to perpetual exile; and because he has committed the offence a second time, he shall also lose his property, which shall be bestowed upon whomever the king may direct. Those shall be liable to a similar penalty, who presume to instruct children in the false doctrines contained in such books; and the teacher himself, when detected in the first transgression, shall receive a hundred lashes, and have his head shaved, and shall bind himself by a written agreement never to teach such doctrines again. If, after this, he should violate his agreement, and attempt to repeat what he had formerly renounced, all his property shall be forfeited to the king, and he himself shall receive a hundred lashes, shall have his head shaved, and be condemned to perpetual exile. All children under ten years of age, who are proved to have studied said false doctrines, shall be exempt from the penalties aforesaid. But any child over the age of ten years, who studies or meditates upon such doctrines, shall be liable to the fines and punishments hereinbefore mentioned”. [Parkes, , Church and Synagogue, 364Google Scholar; Katz, , Jews, 71Google Scholar; King, , Law and Society, 135Google Scholar].

124 Brev. 16.2.1. = C.Th. 16.7.3. [See Pharr's translation: “The same Augustuses to Hypatius, Praetorian.Prefect. By denying them the liberty to make testaments, We avenge the criminal act of Christians who turn to altars and temples. The Given on the twelfth day before the kalends of June at Padua in the year of the second consulship of Merobaudes and the consulship of Saturninus—May 21, 383.” On this law, see Parkes, , Church and Synagogue, 181 and 250Google Scholar; Simon, M., Verus Israel, op. cit. at p. 338Google Scholar; Seaver, J.E., Persecution, op. cit., at p. 47Google Scholar; Biondi, , D.R.C., vol. 1, at pp. 290, 332, 336Google Scholar; vol. 3, at p. 507; Gaudemet, J., L'Eglise dans l'Empire Romain (Paris, 1958) 618, 622, 629.Google Scholar On Brev. Alaric. 16.2.1, see Parkes, , Church and Synagogue, 352Google Scholar; Katz, , Jews, 43Google Scholar].

125 Nov. Th. III. But since Alaric has also repeated the rule in C.Th. 16.7.3, which does not refer to the capital punishment, there is some conflict between the two texts. It is probably the rule of Nov. III which would apply, as only that rule is accompanied by an interpretatio of which C.Th. 16.7.3. is lacking. [See Pharr's translation of N. Th. 3 § 4: “To these regulations We add the provision that if any person should seduce a slave or a freeborn person, against his will or by punishable persuasion, from the worship of the Christian religion to an impious sect or ritual, he shall suffer capital punishment, together with the forfeiture of his fortune. See also Gaudemet's remarks that “the clerics had at their disposal extracts from the Theodosian Code, especially from Book XVI, in addition to the Breviarium”. Gaudemet, J., “Survivances romaines dans le droit de la monarchie franque du V^e au X^e siècle” (1955) 23 Tijdschrift voor Rechtsgeschiedenis 166CrossRefGoogle Scholar].

126 L. Visig. 12.2.17: “Because a cruel and astounding act of presumption should be expiated by a still more cruel punishment, We declare, by the following edict: that, whenever it has been proved that a Christian, of either sex, and especially one born of Christian parents, has practised circumcision, or any other Jewish rite, or anything else forbidden by God, he shall be put to an ignominious death by the zeal and co-operation of Catholics, under the most ingenious and and excruciating tortures that can be inflicted; that he may learn how horrible and detestable that offence is, which he has so infamously perpetrated. All the property of such a person shall be confiscated for the benefit of the royal treasury, in order that his heirs and relatives may not, through consenting to his errors, be contaminated by them”. [Parkes, , Church and Synagogue, 359, 363Google Scholar; King, , Law and Society, 133, 138Google Scholar].

127 That these penalties were applicable can, we believe, be inferred by logical deduction in the absence of any explicit text. Erwig, while insisting on the penalties to be inflicted upon the converter, does not deal with the converted. The penalties incurred by the latter are, in our opinion, the same as those prescribed by Erwig against the converter (cf. infra n. 131) and, in the case of circumcision (cf. infra n. 144), against both the circumcised and the circumcisor. Consequently, Erwig intends to penalize at least the converted person. The most one can say is, that he does not penalize the female proselyte, but such an exception in her favour would hardly fit into his system of laws, since he does punish her for operating a conversion or assisting in the circumcision of some other person: if he does not refer to her, it is simply by oversight.

128 Third Council of Toledo, can. 14: “If any truly Christian slaves are contaminated by them into following the Jewish rites or even being circumcised, they shall be liberated without compensation, and they shall revert to the Christian faith”. Gonzalez, , Coll. can. 352Google Scholar = Mansi, , Conc. 9. 98.Google Scholar [Vives, Concilios, 129; Parkes, , Church and Synagogue, 353 s.Google Scholar; King, , Law and Society, 199Google Scholar, n. 1].

129 L. Visig. 12.2.14: “Where a Hebrew circumcises a Christian, or induces one to adhere to his sect, etc.”—see the text infra at n. 141. Note the manner in which the legislator insists on the case of converted women, who were not protected by the rule relating to circumcision. [Parkes, , Church and Synagogue, 355Google Scholar; King, , Law and Society, 136Google Scholar].

130 See the preceding note.

131 L. Visig. 12.3.4, text cited infra at n. 144, which continues as follows: “They also shall undergo a similar penalty who cause a Christian man or woman to renounce the faith of Christ or induce anyone to return to the practice of the false doctrines of the Jews”.

132 L. Visig. 12.3.9: “If any [Jew] … should defend the weakness of his own sect, etc.” Cf. the text cited infra n. 172. Wc seek to restore some consistency between 12.3.4 and 12.3.9 in the only possible way, for these two rules were drafted, after all, in rather incoherent terms. Cf. supra n. 81.

133 L. Visig. 12.2.7; see the text infra at n. 138.

134 PS 5.22. 3–4. [(3) “Roman citizens who permit either themselves or their slaves to be circumcised in accordance with the Jewish rite, after having had their property confiscated, shall be relegated to an island for life; and the physicians who performed the operation shall be put to death.” (4) “If Jews circumcise slaves whom they have purchased and who belong to another nation, they shall either be deported or capitally punished.” (Scott's translation). On these fragments and on the problem of the relation between Paul's Sententiae, the Constitutions of Codex Theodosianus and of Breviarium Alaricianum see especially: Juster, , Juifs, vol. 1, p. 268 ss.Google Scholar; Volterra, E., “Sull'uso delle Sententiae presso i compilatori del Breviarium e presso i Giustinianei” (1934) Atti del Congresso Internazionale di Diritto Romano, Bologna 1, 158Google Scholar; Scherillo, G., “L'ordinamento delle Sententiae di Paolo” Studi Riccobono (1936) vol. 1, p. 39 ss.Google Scholar (on PS 5.22 at p. 66); Solazzi, S., “Glosse ed interpolazioni al Codice Teodosiano” (1944) BIDR 238 =( Scritti, IV, 498 s.)Google Scholar; Imbert, I., “Christianisme et Esclavage” Mélanges De Visscher in (1949) 2 RIDA 470 s.Google Scholar; Dominicis, A. de, “Di alcuni testi occidentali sulle sententiae riflettenti la prassi postclassica” (1953) 4 Studi Arangio-Ruiz 540 n. 66Google Scholar; Id., Riflessi di Costituzioni imperiali del Basso Impero nelle opere della giurisprudenza postclssica (Trieste, 1955) 47 ss.; Volterra, E., “Intorno ad alcune Costituzioni di Costantino” (1958) 13 (3rd series) Annali Accademia Nazionale dei Lincei 87 s.Google Scholar; Linder, A., “The Roman Imperial Government and the Jews under Constantine” (1975) 44 Tarbiz 126–135.Google Scholar].

135 Cf. L. Visig. 12.2.17, cited supra n. 126.

136 Cf. infra n. 144. The text reads aut fieri ab altero permiserit sibi, that is to say “or allows himself to be circumcised by another man”.

137 Brev. 16.4.1 (= C.Th. 16.9.1). The Breviarium, while also repeating the rule in C.Th. 3.1.5 which contains rules conflicting with it, places itself in the same antinomous position. In fact the more liberal solution was the one that prevailed. [See Pharr's translation: C.Th. 16.9.1: “Emperor Constantine Augustus to Felix, Praetorian Prefect.

If any Jew should purchase and circumcise a Christian slave or a slave of any other sect whatever, he shall not retain in slavery such circumcised person. But the person who endured such treatment shall obtain the privilege of freedom (Etc.) Given on the twelfth day before the kalends of November at Constantinople.—October 21, (335). Posted on the eighth day before the ides of May at Carthage in the year of the consulship of Nepotianus and Facundus.—May 8, 336. Interpretation: If any Jew should purchase and circumcise a Christian slave or a slave of any other sect whatever, such slave shall be taken from the power of the Jew and remain free.”

C.Th. 3.1.5: “The same Augustuses, Emperors Gratian, Valentinian, and Theo-dosius to Cynegius. Praetorian Prefect.

No Jew whatever shall purchase a Christian slave or contaminate an ex-Christian with Jewish religious rites. But if a public investigation should disclose that this has been done, the slave shall be forcibly taken away, and such masters shall undergo a punishment suitable and appropriate for the crime. It is further added that if there should be found among the Jews any slaves who are either still Christians or ex-Christian Jews, they shall be redeemed from this unworthy servitude by the Christians upon payment of a suitable price. Received on the tenth day before the kalends of October at Rhegium in the year of the consulship of Richomer and Clearchus.—September 22, 384. Interpretation: It must be observed above all things else that no Jew shall be permitted to have a Christian slave; indeed, if a Jew should have a Christian slave, he shall under no circumstances dare to presume to transfer him to his own religious faith. If he should do this, he shall know that his slaves will be forcibly taken from him, and he shall undergo a punishment suited to so great a crime. For before this law was issued, it had been decreed that if a Christian slave had been contaminated by Jewish pollution, his master should know that the price which he had paid for the slave would be refunded to him by the Christians in order that the slave might remain in the Christian faith”. On C.Th. 16.9.1 see G. Scherillo “La critica del Codice Teodosiano e la legge delle Citazioni di Valentiniano III”, (1942) 8 SDHI 11 n. 17: Scherillo thinks that in the original constitution the words “or a slave of any other sect whatever” do not appear; S. Solazzi, “Glosse e interpolazioni” op. cit. at p. 237 s.; Dominicis, M.A. de, “Registro delle alterazioni (glossemi ed interpolazioni) nelle costituzioni del Codice Teodosiano e nelle Novelle Posteodosiane segnalate dalla critica” (1953) 55–56 BIDR 438 and n. 2Google Scholar: Solazzi and de Dominicis also exclude the possibility that Constantine placed on the same level Christian slaves and slaves “of any other sect”, and they refer to C.Th. 16.9.2. The authors of these regulations were Constantine's successors and their aim was to intensify the restrictions against Jews. See Pharr's translation of C.Th. 16.9.2. “Emperor Constantinus Augustus to Evagrius: If any Jew should suppose that he should purchase the slave of another sect or people, such slave shall be immediately vindicated to the fisc. If the Jew should purchase a slave and circumcise him, he shall be penalized not only with the loss of the slave, but he shall also be visited with capital punishment. But if a Jew should not hesitate to purchase slaves who are adherents of the venerable faith, he shall immediately be deprived of all such slaves found in his possession, nor shall any delay be interposed in depriving him of the possession of those men who are Christians. (Etc.)” See also M.A. de Dominicis, “Riflessioni di Costituzioni imperiali” op. cit. at p. 47 ss.; E. Volterra, “Intorno ad alcune Costituzioni di Costantino” op. cit. at p. 87 s. thinks that the Constitution was not made by the imperial chancery, but by Christian priests: the spirit is the same Christian spirit as that of C.Th. 16.9.2 only Constantine's Constitution is in harmony with the law of his time. See also Sargenti, M., Il Diritto privato nella legislazione di Constantino. Persone e famiglia (Milan, 1938) 72Google Scholar; Dupont, C., Les constitutions de Constantin et le droit privé au début du IV siècle (Lille, 1937 = Rome, 1968) 48.Google Scholar The observations of Linder, op. cit. at p. 134, criticizing Volterra are not convincing—mainly because of the obvious influence of the Church. It will be noted that Dupont's book is not more recent than Volterra's article, since it is dated 1937 and only reprinted in 1968. On C.Th. 3.1.5 see Wieacker, “Lateinische Kommentare zum Kodex Theodosianus” Symbolae Friburg in honorem O. Lenel 343Google Scholar; Biondi, B., D.R.C., vol. 2, p. 407 s.Google Scholar; Gaudemet, J., L'Eglise dans l'Empire Romain (IV–V^e siècles) (Paris, 1958) 629 s.].Google Scholar

138 L. Visig. 12.2.7: “No Jew shall circumcise another; nor shall a person who has permitted himself to be circumcised be exempt from the operation of the law. No slave, freeborn person, or freedman, native or foreigner, shall practise or submit to this detestable operation. Whoever is proved to have voluntarily performed, or submitted to it, shall be punished with the utmost severity of the law.” (Sanctioning L. Visig. 12.2.11, cited supra n. 101). [Katz, , Jews, 47Google Scholar; King, , Law and Society, 135Google Scholar s.].

139 PS 5.22. 3–4; cf. Juster, , Juifs, vol. 4, p. 263 ss.Google Scholar See supra n. 134.

140 PS 5.22.4.

141 L. Visig. 12.2.14: “Where a Hebrew circumcises a Christian, or induces one to join his sect, or perform any of his rites, he shall be beheaded; the informer shall receive a proper reward; and the property of said Jew shall be forfeited to the royal treasury”. [Parkes, , Church and Synagogue, 361Google Scholar; Blumenkranz, , Juifs et Chrétiens, 119Google Scholar s.].

142 See the preceding note and also supra n. 138.

143 But where the person performing and the person undergoing circumcision are both Jews, Recesswinth ordered that the death penalty shall be by fire or by stoning. This is the only way to reconcile the statute of Sisebut, repeated by Recesswinth, with the latter's own statute (cf. supra nn. 39 and 138).

144 L. Visig. 12.3.4: “Whoever shall circumcise either a Jew or a Christian, or allow himself to be circumcised by another, shall be utterly mutilated; and his property shall be confiscated for the use of the royal treasury. Should any woman presume to practise the operation of circumcision, or should present anyone to another person to be circumcised, she shall have her nose cut off, and all her property shall be given to the king—they shall weep for their insolence.”

145 L. Visig.; 2.2.12 (text given infra n. 219). The slave also retains his liberty under 4th Council of Toledo, can. 59. Gonzalez, , Coll. can. 383Google Scholar = Mansi, Conc. 10. 633. [Vives, , Concilios, 212Google Scholar].

146 Cf. supra n. 141.

147 L. Visig. 12.2.12 and 14.

148 See supra n. 143.

149 C.Th. 16.8.23. [See Pharr's translation:

“The same Augustuses to Annas, Didascalus, and the Elders of the Jews. It has been established both by ancient sanctions and by Our own that when We learn that men bound to the Jewish religion wish to become associated in the fellowship of the Church for the purpose of evading prosecution for crimes or on account of different necessities, such acts are practiced not through devotion to the faith, but by the deception of hypocrites. Hence, judges of the provinces in which such crimes are said to have been committed shall know that obedient service must be granted to Our statutes in such a way that they shall allow such persons to return to their own law, if they should perceive that any of them do not persist in the constancy of religious confession in the aforesaid worship or have not been imbued with the faith and the mystery of venerable baptism; because more suitable provision is thus made for Christianity.

Given on the eight day before the kalends of October at Ravenna in the year of the seventh consulship of Theodosius Augustus and the consulship of Palladius.—September 24, 416”.

Seaver, J. E., Persecution of the Jews, op. cit., at p. 62Google Scholar.].

150 4th Council of Toledo, can. 57 (in continuation of n. 18 supra): “As to those already forced into Christianity, as was done in the time of the most devout prince Sisebut, since it is evident they have partaken of the holy sacrament, have received the grace of baptism, have been anointed with the Christ, and received the body and blood of our Lord, it is right they should be obliged to retain the faith they have undertaken, although under compulsion and necessity, lest the name of God be blasphemed, and the faith they have assumed be considered worthless and depicable”;

can. 59: “Many who have formerly been elevated to the Christian faith, are now known, in contempt of Christ, not only to practise Jewish ceremonies, but even have dared to practise the abomination of circumcision. By the advice of our most pious and religious prince, Sisenand the king, this holy Synod hath decreed that such transgressors, being apprehended on the authority of the prelates, shall be recalled to the true worship, according to Christian doctrine, so that those who will not amend of their own accord, may be compelled by sacerdotal correction”. (Gonzalez, , Coll. can. 383Google Scholar = Mansi, , Conc. 10Google Scholar, 634). [Vives, , Concilios, 210Google Scholar; Parkes, , Church and Synagogue, 357Google Scholar; Blumenkranz, , Juifs et Chrétiens, 154 ss.Google Scholar; Thompson, , Goths, 166 s.Google Scholar; King, , Law and Society, 133 s.Google Scholar].

151 4th Council of Toledo, can. 59 (in continuation of preceding note): “Should such persons as they may have circumcised be children of the above, they shall be taken from the society of their parents; and, if slaves, they shall be liberated in compensation for the injury.”; can. 60 “…. the sons and daughters of baptized Jews are to be separated from their parents, lest they be involved in their errors. They are to be placed in monasteries, or with Christian men and women who fear God, that by their society they may learn the worship of the true faith, that, being thus better instructed, they may improve in morals and belief.” Gonzales, , Coll. can. 383–4Google Scholar = Mansi, , Conc. 10, 634Google Scholar: in some mss. the word baptized is omitted, and this version is the one adopted by Gonzalez; see also Hefele, op. cit. Ill, 1 p. 274 n. 1. The Council actually subjects to the same treatment both baptized children and children brought up in the Jewish faith. [Vives, , Concilios, 211 s.].Google Scholar

152 4th Council of Toledo, can. 61: “If Jews that have been baptized, afterwards renounce Christianity, and thus become liable to any penalty, their believing children shall not be excluded from inheriting their property; for it is written, ‘The son shall not bear the iniquity of the father’.” Gonzalez, , Coll. can. 384Google Scholar = Mansi, , Conc. 10, 635Google Scholar. [Vives, , Concilios, 212Google Scholar.].

153 4th Council of Toledo, can. 64, cited infra n. 254.

154 4th Council of Toledo, can. 62: “The company of the wicked frequently cor-rupteth the good, how much more that of the viciously inclined. Therefore, there is to be no communion between Jews that have been converted to the Christian faith, and those who adhere to their ancient rites, lest by associating with them they be perverted. Therefore, any that have been baptized, that do not avoid the society of unbelievers, shall be given over to Christians, and the former be publicly scourged.” Gonzalez, , Coll. can. 384Google Scholar = Mansi, , Conc. 10, 634.Google Scholar The last sentence does not carry the meaning attributed to it by Gams, op. cit. II, 2, 99 n. 3, that baptized Jews are to be given over to Christians, but that the non-baptized Jews shall be so treated, while the baptized Jews are liable to scourging. [Vives, , Concilios, 212Google Scholar; Parkes, , Church and Synagogue, 357Google Scholar; King, , Law and Society, 133, 140.Google Scholar].

155 Placitum (ed. Ureña y Smenjaud, p. 574): “Anyone of us who transgresses any of all his present promises in the slightest detail, whether the transgressor be his own wife or son or any other person on whom we have authority, for whom we are all liable as sureties, if he should live otherwise than the Catholic faith commands, we pledge by our faith and at our risk to lay hands on him and to stone whomever shall be found guilty of such crime, so that his sacrilege be punished by his death.” [Blumenkranz, , Juifs et Chrétiens, 116 s., 119Google Scholar; Thompson, , Goths, 186.Google Scholar].

156 Ibid.: “But we promise, at our own risk, that every kind of penalty shall be inflicted upon ourselves, to the extent of what the text of the laws require, including the confiscation of property, if ever we knowingly conceal by any timidity any of the transgressors and fail to denounce him to the authority of the king or of the priests or of the judges”.

157 Cf. supra n. 32.

158 L. Visig. 12.2.16. [Parkes, , Church and Synagogue, 394 s.Google Scholar; Baron, , History, 3, 42 and n. 52Google Scholar.].

159 Ibid.: “And if, at any time, we should be found to have transgressed, and to have violated any of the promises hereinbefore specified; or should presume to act contrary to the doctrines of the Christian faith; or if we should, in word or deed, neglect to fulfil the obligations to which we have bound ourselves, as being acceptable to the Catholic religion; we hereby swear by the Father, Son and Holy Spirit, who form one God in the Trinity, that, in case a single transgressor should be found among our people, he shall be burned, or stoned to death, either by ourselves, or by our sons. And should Your Majesty graciously grant such culprit his life, he shall at once be deprived of his freedom, so that Your Majesty may deliver him to be forever a slave to anyone whom Your Majesty may select; and Your Majesty shall have full authority to make whatever disposition of him and his property as may seem expedient; not only on account of the power attached to your royal office, but also by the authority granted by this our memorial.”

160 L. Visig. 12.2.11, cited supra n. 101.

161 For baptized Jews in particular, he further enacted special rules on orthodoxy in L. Visig. 12.2.4: “No Jew who has received the sacred rite of baptism shall renounce the faith of the holy Christian religion, or blaspheme said faith, in any way. No Jew shall impugne its precepts by deed or word; or speak insultingly of it either secretly or openly. No Jew shall flee to avoid being received into the Church, or conceal himself for such a purpose, after having taken to flight. No Jew shall entertain the hope of resuming his errors, or of performing the ceremonies of his infamous belief. No Jew shall entertain in his heart any perfidy against the Christian religion, and in favour of his own sect, or exhibit such perfidy by word or deed. No Jew shall attempt to infringe, or oppose, any regulations or laws of the Christians which have been published. No one shall venture to conceal a Jew who is aware of the existence of these offences which have been prohibited, or who has committed them. No one shall delay to denounce a fugitive Jew when he is found, or to reveal his hiding place. Any person who violates the provisions of the aforesaid law (i.e. L. Visig. 12.2.11, cited supra n. 101), shall be subjected to the punishment prescribed by the same.” [Parkes, , Church and Synagogue, 361Google Scholar; King, , Law and Society, 135Google Scholar.].

162 Cf. preceding note.

163 L. Visig. 12.3.14, cf. supra n. 52.

164 L. Visig. 12.3.13: “Any of said persons, however, who, after having made confession and been sworn, thereby dedicating themselves to Christianity, as aforesaid, are found to have broken their promises by the practice of any rite of the Jewish sect; for the reason that they dared to profane the name of God, and pollute themselves with the filth of Jewish error, shall forfeit all their property to the king, shall receive a hundred lashes, and, having had their heads shaved, shall be subjected to the miseries of exile which they have so justly deserved.” L. Visig. 12.3.9. [Parkes, , Church and Synagogue, 163 s.Google Scholar; Blumenkranz, , Juifs et Chrétiens, 125 ss.Google Scholar; Thompson, , Goths, 236Google Scholar; King, , Law and Society, 135Google Scholar ss.].

165 L. Visig. 12.3.5. [Parkes, , Church and Synagogue, 364Google Scholar; Blumenkranz, , Juifs et Chrétiens, 124 s.Google Scholar].

166 L. Visig. 12.3.5, cf. supra n. 112.

167 L. Visig. 12.3.8, cf. infra n. 192.

168 L. Visig. 12.3.9, cf. infra n. 172; and 12.3.11, cf. supra n. 123.

169 L. Visig. 12.3.11.

170 L. Visig. 12.3.7, cf. supra n. 121.

171 Such as performing work on a Sunday, on the days of St. Mary, of Christmasi of the New Year, Easter, Octogésimo, the Discovery of the Cross, Ascension and Pentecost. The same punishment is incurred by slaves working on those days, while their master who sets them or allows them to do so, is liable to a fine of 100 solidi: L. Visig. 12.3.6: “if any Jew, of either sex, should do any work on Christmas, or on any other sacred holiday, or a Sunday, or should spin, or weave, or perform any labour beyond that which the honourable custom of good Christians permits; such a transgressor shall have his head shaved, and shall receive a hundred lashes for his insolence; and where slaves, of either sex, are found occupied in such labours, they, also, shall be liable to the punishment aforesaid. The masters of said slaves, where they permit them to labour in this manner, shall be compelled to pay a hundred solidi to the royal treasury. Those days which shall be devoutly observed by the Jews, are the following, to wit: the Festival of the Holy Virgin Mary, during which the glorious Conception is celebrated; the Festivals of the Nativity and Circumcision; Holy Week and Easter; the day of the Discovery of the Cross; the day of the Ascension; Pentecost; Sundays throughout the entire year; and all the days that are venerated by true believers in the doctrines of Christ.” [Parkes, , Church and Synagogue, 364Google Scholar; Blumenkranz, , Juifs et Chrétiens, 124 s.Google Scholar; Blumenkranz, , Auteurs chrétiens, op. cit., 111 s.Google Scholar; King, , Law and Society, 135Google Scholar, n. 5: “The first festival noted in XII.3.6, the Annunciation, was particularly objectionable to the Jews.”].

172 L. Visig. 12.3.9: “If any Jew should presume to offer an insult to the Christian religion; or, by arguments, should induce anyone to abandon the Christian faith; or should defend the weakness of his own sect; or, while fleeing from the doctrines of the Christian religion, should conceal himself in any part of our kingdom; or should escape to foreign countries, for the purpose of concealment; or if anyone should offer a hiding-place to a transgressor of this law, knowing he is a fugitive; any of said parties guilty of any of the above-named offences, shall be punished with a hundred lashes, have his head shaved, and, after his property has been confiscated for the benefit of the king, shall be subjected to the miseries of slavery.” [Blumenkranz, , Juifs et Chrétiens, 125Google Scholar; King, , Law and Society, 136Google Scholar.].

173 L. Visig. 12.3.10, cited infra n. 213.

174 L. Visig. 12.3.27.

175 L. Visig. 12.2.18: “If any hypocrite should be found among those converted to the Holy Faith, he shall be condemned to slavery, and all his property shall be confiscated for the benefit of the royal treasury.” Cf. also supra n. 91.

176 Cf. supra nn. 92 and 93.