I Introduction
Law as religion and religion as law: these expressions evoke the intertwining of two experiences, the legal one and the religious one, which characterizes every society, ancient and modern.
In pagan Rome the interconnection between fas and ius led to noteworthy consequences. Think, for example, about the role of the pontifices, not only in the religious dimension, but also in the interpretation and creation of law or, further, the close connection, in various legal and government contexts, between the magistracies and the sacerdotal colleges.Footnote 1
In this work, however, our attention is drawn towards late antiquity and the relationship between the Christian religion and imperial legislation on administration of justice.
We will look at the problem of the articulation of the “times” of trials which, from a certain moment onwards, took on the Christian dimension of time as a new point of reference, examining how Christianity managed to influence the rhythms of the judicial administration.
Since the second century, the central Christian feasts were Sunday and Easter, both referred to the resurrection of Christ. As time has gone on, particularly at a local level, also commemoration of great martyrs took on importance. Unlike the pagan and Judaic feasts, Christian holidays were not connoted by a specific quality, there being no distinction between a “sacred” day and a “profane” day, since every day is a day of the Lord. As Jerome explains, the resurrection of Christ is celebrated every day, but some days are established for meetings between Christians, so as not to let people’s faith diminish and so that there is more joy in the mutual meeting.Footnote 2
However, a considerable change took place over the fourth century. In fact, the old pagan Roman calendar was based on a different conception, according to which sacred time took on a different meaning compared to profane time: think of the distinction between dies fasti, devoted to commercial activities and trials and dies nefasti, during which significant jurisdictional and political activities were not permitted.Footnote 3
Based on these principles, legislation began to move in a similar direction and the Christian articulation of time very slowly became intertwined with the civil calendar, influencing it profoundly. The emperors used “religious time” to articulate “legal time.”
This happened, for example, through the establishment of some of Christian feasts as feriae publicae, thanks to the recognition of some days or periods of the year for the accomplishment or suspension of certain acts; in parallel with the abolition of pagan public sacrifices and feriae connected with pagan feasts, which became ordinary working days.Footnote 4 Another important instrument used by the emperors was the prohibition of spectacles on Christian feasts:Footnote 5 games and theatrical performances distracted believers from Christian services and this is confirmed by many invectives in the works of the Fathers of the Church.Footnote 6
Through the filter of the imperial constitutions, Christian feasts (such as Sunday, Easter, Pentecost, Christmas, Epiphany)Footnote 7 gradually came to be placed alongside civil feasts such as dies Natalis and the emperor’s assumption of the throneFootnote 8 and became a powerful instrument for spreading the Christian message. All of this particularly follows the Edict of Thessalonica issued in 380, after which the most significant testimonies, which will be analyzed herein, are placed.Footnote 9
It was not a complete replacing of the Roman calendar, because the “Christian time” started working alongside the “Pagan time.” The attempts of Christian emperors to make pagan festivals and holidays illegal were only partially successful: they were celebrated also in the fifth and sixth centuries. They progressively lost their original religious meaning, rather becoming a matter of popular custom and culture.Footnote 10
Nevertheless, the new way of organizing social time brought with it a set of symbols, rites, ceremonies, and values,Footnote 11 eventually conditioning people’s daily lives.
Our attention will focus on texts that cover the dies dominicus and the Easter cycle. Hence, some constitutions will be examined through which Sunday and the days of the Easter cycle are used to influence and govern the times of trial, in particular (but not only) through the establishment of the obligation to suspend certain activities.
The statutes we will examine, chronologically to be placed after the 380, come mostly from the Theodosian Code. Later, some of them have been incorporated into the Justinian one. With reference to the two codifications, consequently, a complete, definitive picture emerges, showing that the Christian festivals have profoundly impacted the civil calendar.
It must however be pointed out that the various laws, at the time of their promulgation, were destined to different geographical areas, and were therefore measures in response to specific local needs, or that reacted to particular problems. Where possible, we will try to highlight these aspects, emphasizing the occasion in which the various constitutions were issued.
II Constantine and the “dies Solis”
However, before examining the legislation on dies dominicus and the Easter festivity, it is first necessary to look at some measures of the Constantinian era, very well-known and debated among scholars, that is, two constitutions through which contractual activities and trials were suspended on the dies Solis.
They were C. 3,12,2(3), from C. 3,12 De feriis and CTh. 2,8,1, from CTh. 2,8 De feriis : formally two distinct measures, both addressed to Elpidius vicarius urbis Romae, the former issued on March 3, 321 and the latter on July 3 of the same year, but which some scholars consider to be two fragments of a single law.Footnote 12 Anyway, the constitutions were initially applied only in the West, and after the victory over Licinius they were extended also to the Eastern provinces.Footnote 13
C. 3,12,2(3). Imp. Constantinus A. Helpidio. Omnes iudices urbanaeque plebes et artium officia cunctarum venerabili die solis quiescant. ruri tamen positi agrorum culturae libere licenterque inserviant, quoniam frequenter evenit, ut non alio aptius die frumenta sulcis aut vineae scrobibus commendentur, ne occasione momenti pereat commoditas caelesti provisione concessa. PP. V. non. Mart. Crispo II et Constantino II conss. (a 321).Footnote 14
CTh. 2,8,1. Imp. Constantinus A. Helpidio. Sicut indignissimum videbatur, diem solis, venerationis sui celebrem, altercantibus iurgiis et noxiis partium contentionibus occupari, ita gratum ac iocundum est, eo die, quae sunt maxime votiva, compleri. Atque ideo emancipandi et manumittendi die festo cuncti licentiam habeant, et super his rebus actus non prohibeantur. PP. V. non. Iul. Caralis, Crispo ii. et Constantino ii. Caess. Conss.
Constantine intervened with C. 3,12,2 establishing that on the dies Solis the activities of all judges and inhabitants of the cities must have rest and that only inhabitants of the countryside could work in the fields. With CTh. 2,8,1 the emperor underlined that litigation must stop, in place of which suitable space should be left for the activities he referred to as votiva compleri. The only acts that could be accomplished were emancipations and manumissions, due to their non contentious nature.Footnote 16
In relation to the time relationship between the two texts, the opinion of Gothofredus appears worthy of consideration, according to which CTh. 2,8,1, where the emperor talks about the past (sicut indignissimum videbatur), follows C. 3,12,2 from a chronological viewpoint: hence Constantine first established the prohibition of all judicial activities and, for the inhabitants of the cities, the suspension of all activities. The rule was different for the inhabitants of the countryside, who could continue their agricultural work.Footnote 17 At a later date, through the measure referred to in CTh. 2,8,1, the emperor is considered to have extended the range of permitted exceptions, stating that emancipations and manumissions could also be performed on Sundays.Footnote 18
The texts mentioned, as has been seen, contain a reference to the dies Solis, an expression connoted by a certain amount of ambiguity, since it can be attributed both to the pagan solar cult and to Christian thought, which indicates Sunday as the day of the Lord.Footnote 19
As we know, scholars have always been divided on the question and diverging interpretations of these texts have also been provided in recent times.
To briefly summarize the discussion, it is first necessary to remember that some of the words used by Constantine, that is, venerabilis dies Solis and dies Solis veneratione sui celeber, and the absence of motivations that openly refer to Christian thought, point towards the preeminent will of the emperor to reconnect with the cult of the sun, to which Constantine and the members of his family were dedicated prior to the conversion to Christianity.Footnote 20 Therefore, Constantine’s choice of terminology would make it possible to relink his provisions to the cult of the sunFootnote 21 while not being able to fully deny the fact that this choice would give life to a sort of compromise between the Christian and the pagan worlds, thus allowing a not too clear position to be taken, during years which were undoubtedly still a time of transition. Hence, Christians benefited, although indirectly, from Constantine’s provisions.Footnote 22
On the other hand, for an opposite interpretation (already identifiable for example in the comment that J. Gothofredus dedicates to CTh. 2,8,1)Footnote 23 Constantine intended to impose respect for the Christian feast of Sunday, dies dominicus, by still calling it dies Solis.Footnote 24 According to this different stance, the constitutions with which we are dealing are connected with the Christian cultFootnote 25 on the basis of different signs.
In particular, it should be considered that in the legislation of the Christian emperors of the fourth century who, through different measures, attempted to overcome the paganism that still covered civil society (we will look at some examples below), the expression dies Solis is used to indicate Sunday without any pagan connotation. This implies that it may also be used in this sense in Constantine’s texts,Footnote 26 and not in relation to the cult of the sun. Again, it should not be forgotten that in the Christian conception Christ had been considered the Sol Iustitiae for some time, and that the cult of the sun had certainly had a strong influence on the Christian worship.Footnote 27
To this it must be added that Constantine pursued policies that clearly distinguished Christian feasts from Jewish ones. Think about the Council of Nicaea, during which the independence of the Christian Easter with respect to Passover was established with the identification of a common date for all the Christian communities.Footnote 28 Since the emperor most probably issued a measure (which we do not know) on respecting Saturday for Jews,Footnote 29 it is very likely that with the constitutions of C. 3,12,2 and CTh. 2,8,1, Constantine also intended to promote the Christian cult, connoting the day of dies Solis as a holiday to be considered the day of the Lord, and not as being connected with the cult of the sun.
Therefore, the two constitutions allegedly aimed to favor Christians who, free from any civil and trial-related commitments, could dedicate Sunday to rest for praying,Footnote 30 without the risk of any negative consequences. Through Constantine’s decrees, Sunday was therefore taken away from judicial and commercial activities, which by their very nature were forebears of hostility, exchange of money, and the risk of fraud.Footnote 31 In fact, as pointed out, in CTh. 2,8,1 acts such as emancipations and manumissions remain outside the emperor’s provisions.
It is difficult to know which position to take within this debate and to opt for one interpretation over another.
However, an aspect that appears to be significant is that of the sure “appropriation” by Christians of Constantine’s constitutions. We refer to the operation led by some writers who see the aforementioned measures as indisputably connected with Sunday as the day of the Lord.
First of all, Eusebius of Caesarea.Footnote 32 In the Vita Constantini,Footnote 33 the writer mentions various times Constantine’s legislation on the dies Solis, highlighting its connection with the Christian cult.Footnote 34
According to Eusebius, Constantine established that the most important day of the week, the one that “really comes first” be dedicated to prayer and belong to the Lord.Footnote 35 Again, the author reminds us that the emperor ordered all citizens of the empire to rest on the days of the Savior, and people were also required to respect Saturdays. The writer specifies that this probably happened to remember the actions which according to tradition were performed by the Savior.Footnote 36 Finally, he stated that the provincial governors were obliged to observe the day of the Lord; the emperor also required them to honor the festivities of the martyrs and to celebrate the feasts of the Church: all this according to Constantine’s wishes.Footnote 37
The words of the bishop of Caesarea describe Constantine’s interventions as being undoubtedly connected to the Christian cult, focused on respecting Sunday as the day devoted to prayer.Footnote 38 In the perspective adopted by Eusebius the strong link between Constantine and Christianity emerges, without any doubt; it is also significant that in Eusebius, Vita Constantini, IV,XVIII,2 a “parallel” intervention is remembered in relation to respecting Saturday, most likely addressed to Jews.Footnote 39
Scholars who sustain the connection of C. 3,12,2 and CTh. 2,8,1 with the cult of the sun do not consider the words of Eusebius to be reliable, believing that he must have been motivated by apologetic reasons.Footnote 40
Eusebius of Caesarea was not alone in underlining the connection between Constantinian legislation and the Christian cult. The testimony of Sozomen of Gaza also suggests the same, stating that Constantine established the obligation to observe the day of the Lord.Footnote 41 He underlines that the function of Constantinian legislationFootnote 42 is to respect Sunday as a day devoted to the Lord, through the prohibition to perform judicial and contractual acts: Sunday must instead be used for prayer, therefore believers are exonerated from any activities that could hinder the spirituality of the day in any way.
Sozomen also offered an opening on the reason why Constantine dictated such rules, suggesting that Sunday was the day on which Christ rose again, hence beating death.Footnote 43 It was therefore a “Paschal” day of the week and, as such, was to be celebrated.Footnote 44
In short, these testimonies show that beyond what should have been the original meaning of Constantine’s measures, C. 3,12,3 and CTh. 2,8,1 (or similar measures) were immediately linked to Christianity and therefore perceived as a way of enhancing Christian worship.Footnote 45
Returning now to the contents of the two Constantinian laws, they establish abstention from all judicial and contractual activities, with the exception of emancipations and manumissions. Again, as has been seen in C. 3,12,2 the emperor asked for the work of the inhabitants of the cities to stop, while those living in the countryside could continue their activities if necessary.Footnote 46
There has been some discussion as to the meaning of this exception. According to scholars who consider the law to be connected to the Christian cult, it was a prudent stance by the emperor, who did not want to impose a law inspired by Christianity on the inhabitants of the countryside who were connected to paganism.Footnote 47
As for judicial activities, specifically of interest to us, the words of the emperor point towards the suspension on Sundays of all proceedings. This is the starting point to be considered for looking now, in greater depth, at the problem connected with the relationship between Christian feasts and administration of justice.
III Christian Sunday from Valentinian II to Leo
The suspension of judicial and contractual activities on Sunday is found in 386, in a western constitution by Valentinian II. For those who already see a link to Christianity in the Constantinian constitutions, this text surpasses all related ambiguities, presenting a definitively Christian connotation of the dies Solis and contributing to the idea that Sunday is the day of the Lord.Footnote 48 On the other hand, according to those who believe Constantine was still connected to the cult of the sun, it is the first intervention envisaging the suspension of judicial and contractual activities on the Christian Sunday.Footnote 49
The constitution was issued in Aquileia by Valentinian II, probably under the deep influence of his mother, Justina.Footnote 50
It is CTh. 2,8,18, from the title De feriis, also reported by the compilers of the Codex Theodosianus in CTh. 8,8,3 and CTh. 11,7,13:Footnote 51
CTh. 2,8,18. Imppp. Gratianus, Valentinianus et Theodosius AAA. ad Principium Praefectum praetorio. Solis die, quem dominicum rite dixere maiores, omnium omnino litium, negotiorum, conventionum quiescat intentio; debitum publicum privatumque nullus efflagitet; nec apud ipsos quidem arbitros vel iudiciis flagitatos vel sponte delectos ulla sit agnitio iurgiorum. et non modo notabilis, verum etiam sacrilegus iudicetur, qui a sanctae religionis instinctu rituve deflexerit. Proposita III non nov. Aquileiae, accepta viii k. dec. Romae Honorio n.p. et Evodio conss.
If we accept the theory according to which Constantine had already imposed respect for the Christian Sunday, the text is undoubtedly placed in a continuous line with those provisions, more clearly defining the connection with Christian thought and outlining the conception of the feast in the Christian sense. Significantly, the expression dies Solis is specified here through the words … quem dominicum rite dixere maiores … .Footnote 53
Again, another common thread connects CTh. 2,8,18 with a previous law of Valentinian I, which established that on the dies Solis Christians could not be subjected to tax collection,Footnote 54 whereas in a later one, CTh. 2,8,19 issued in 389, Sunday, still known by the expression dies Solis, was listed among the feast days.Footnote 55 Here Theodosius states that “all days shall be court days” enumerating exceptions, among which dies solis and holy Paschal days, with the seven preceding and following days.Footnote 56
Coming to an in-depth analysis of the contents of the constitution, Valentinian II requires that on the dies Solis/dominicus all proceedings and contractual activities be suspended, including acts before arbitrators.
All this is confirmed further in the Interpretatio that accompanies the text (CTh. 8,8,3) in the Breviarium Alaricianum:
Int. ad CTh. 8,8,3. Die Solis, qui Dominicus merito dicitur, omnium hominum actio conquiescat, ut nec publicum nec privatum debitum requiratur, nulla iudicia neque publica neque privata fiant. Quod qui non observaverit, reus sacrilegii teneatur.Footnote 57
The interpreter grasps the extent of the prohibition ratified by the emperor, which covers all iudicia, privata or publica.
As underlined in the commentary of J. Gothofredus (on CTh. 8,8,3), the measure therefore has a very extensive scope of application.
Ratione causarum, since according to the constitution, all types of proceedings must be suspended. Ratione personarum, because no-one, on the day of the Lord, can be involved in judicial proceedings: the provision also relates to non-Christians. Ratione iudicum, given that proceedings in front of judges are stopped but also those run by arbitrators, whether such arbitrators are called upon by judges or magistrates, or spontaneously chosen by the parties.Footnote 58
On this aspect, the connection has been noted with what was already provided for in the late classic period in a passage by the jurist Ulpian, who talked about the inefficacy of the sententia arbitris issued on feast days.Footnote 59
Again, it is to be pointed out that in 469 the emperors Leo and Anthemius, with a constitution that we know through the Codex Iustinianus, C. 3,12,9 (11), and about which we will talk shortly,Footnote 60 underlining the prohibition of judicial activities on Sundays, allowed litigants to conclude agreements and transactions which, again according to J. Gothofredus, could be favored by recourse to arbitrators.Footnote 61
An aspect that appears particularly significant to us comes from the grave consequences envisaged in the event of violating the rules dictated in the constitution. Anyone who did not respect these rules, infringing the Sunday rest (qui a sanctae religionis instinctu rituve deflexerit) was to be considered not only infamous (notabilis) but also sacrilegious (sacrilegus).
Hence, in the case in question, crimen sacrilegii is applicable, as on the other hand also clarified by the Interpretatio:Footnote 62 this is an important reinforcement of the discipline.Footnote 63 The emperors used Sunday as a day for suspending judicial proceedings and contractual activities for a decisive thrust towards the spread of the Christian religion and to do so the instrument of criminal sanctions was also necessary.
As mentioned above, there is another important text, by the emperors Leo and Anthemius, C. 3,12,9(11), focusing on respect for Sundays, as well as other Christian feasts, which returns, among other issues, to the suspension of judicial activities.Footnote 64
The constitution, which dates back to 469, was placed by Justinian’s compilers in C. 3,12 De feriis, a title which shows the by then established link between the Christian festivities and the civil calendar:Footnote 65
C. 3,12,9(11). Impp. Leo et Anthemius AA. Armasio pp. Dies festos, dies maiestati altissimae dedicatos nullis volumus voluptatibus occupari nec ullis exactionum vexationibus profanari. 1. Dominicum itaque diem semper honorabilem ita decernimus venerandum, ut a cunctis exsecutionibus excusetur, nulla quemquam urgueat admonitio, nulla fideiussionis flagitetur exactio, taceat apparitio, advocatio delitescat, sit idem dies a cognitionibus alienus, praeconis horrida vox silescat, respirent a controversiis litigantes, habeant foederis intervallum, ad se veniant adversarii non timentes, subeat animos vicaria paenitudo, pacta conferant, transactiones loquantur. 2. Nec tamen haec religiosi diei otia relaxantes obscaenis quemquam patimur voluptatibus detineri. nihil eodem die sibi vindicet scaena theatralis aut circense certamen aut ferarum lacrimosa spectacula: etiam si in nostrum ortum aut natalem celebranda sollemnitas inciderit, differatur. 3. Amissionem militiae, proscriptionem patrimonii sustinebit, si quis umquam hoc die festo spectaculis interesse vel cuiuscumque iudicis apparitor praetextu negotii publici seu privati haec quae hac lege statuta sunt crediderit temeranda. D. v id. Dec. Constantinopoli Zenone et Marciano conss.
With the constitution in question, provision is therefore made for all the Christian feasts. It is very significant that the names of each feast are not listed: reference is hence only made to “festal days, the days dedicated to the Highest Majesty.” This is probably a sign of the then established awareness of the people of the meaning of Christian feasts and the religious duties resulting therefrom.Footnote 67
Respect for such feasts implies abstention from civil activities and from amusements, voluptates. With particular regard to the dies dominicus, Leo and Anthemius provide for it being dedicated to rest and prayer, therefore a series of activities, meticulously listed in the constitution, were to be suspended: exactions, admonitio, which was an introductory act of trials, advocatio, that is, the activities of lawyers; and all trials (cognitiones) were suspendedFootnote 68.
With reference to vivid images that communicate the harshness of the procedural activities, the emperor provided for the horrida vox of the town crier (praeco) to be quiet and for litigants to take a break from the disputes in which they were involved (respirent a controversiis litigantes), so that a truce could be created between them.
The only activity still possible was that leading to the conclusion of agreements and transactions, clearly perceived as being compatible with the festivity considering their nature as instruments for pacification.
It was mentioned above that in CTh. 2,8,18 the prohibition of judicial activities on the dies Solis also related to arbitrators, both appointed by a judge and by the litigants themselves and that passage of the constitution is also referred to in the Justinian code, in C. 3,12,6.
J. Gothofredus noted a different stance in CTh. 2,8,18 with respect to Leo’s subsequent law.Footnote 69 Can a contrast between the two provisions be effectively recognized? We do not think so: while the constitution of 386 intended to stop the judicial activities of arbitrators, Leo and Anthemius probably referred to out-of-court activities for concluding agreements and transactions.
Alongside these prescriptions, it was also prohibited to hold spectacles. Within the context of a path already marked out previously, the emperors provided that on religious days, to be dedicated to prayer and contemplation, no theatrical performances or circus events or spectacles involving beasts could be held, not even to celebrate the birthday or accession to the throne of the emperor.
The spectacles are here specified with the word voluptates, amusements, as in previous laws collected in the Theodosian Code. Describing ludi as voluptates, the Christian emperors tried to disassociate the spectacles themselves from the pagan holidays to which they were originally connected, indicating them as cultural events, without a religious meaning.Footnote 70
In the final part of the constitution, some sanctions were provided for against anyone violating the various prohibitions. Amissio militiae and proscriptio patrimonii are mentioned, that is, loss of public office and confiscation of assets, to be applied both to anyone taking part in spectacles on days dedicated to festivities, and to the clerk of any judge marring them with the excuse of public or private proceedings. With reference to the suspension of civil activities and proceedings, we have seen that negative consequences had already been envisaged, as the application of crimen sacrilegii.Footnote 71
This constitution from certain viewpoints seems to conclude the iter undertaken by other emperors, perhaps by Constantine himself, an iter that aimed to push people to respect Christian feasts and, in particular, Sundays. It has been said that the emperor showed his desire to give a moral and religious imprint to judicial activities, not only by considering the dies dominicus as a solemn feast day, but also as a day of conciliation and penance. Hence there is undoubtedly an idea of the establishment of justice being profoundly influenced by what was by then the State religion.Footnote 72
It should be pointed out, again, that the reiterated need for emperors to intervene to promote respect for Sundays probably indicates the great difficulty in ensuring compliance with such provisions.
IV Sunday, Precautionary Custody and Bishops in a Constitution by Honorius
Sunday as a feast day is also taken into consideration in an important imperial constitution by Honorius, issued in Ravenna (409 AD). The text comes from the Theodosian title De custodia reorum, dedicated to precautionary custody in prison, applied both in civil and criminal suits.Footnote 73 Again here, the Christian feast is used by the emperor, in some way, as an instrument for controlling and managing some stages of the procedure, and as a mechanism for spreading Christian thought. The text is:
CTh. 9,3,7. Impp. Honorius et Theodosius AA. Caeciliano praefecto praetorio. Post alia: iudices omnibus dominicis diebus productos reos e custodia carcerali videant et interrogent, ne his humanitas clausis per corruptos carcerum custodes negetur. Victualem substantiam non habentibus faciant ministrari, libellis duobus aut tribus diurnis vel quot existimaverint, commentarienses decretis, quorum sumptibus proficiant alimoniae pauperum. Quos ad lavacrum sub fida custodia duci oportet, multa iudicibus viginti librarum auri et officiis eorum eiusdem ponderis constituta, ordinibus quoque trium librarum auri multa proposita, si saluberrime statuta contempserint. Nec deerit antistitum christianae religionis cura laudabilis, quae ad observationem constituti iudicis hanc ingerat monitionem. Dat. VIII. kal. febr. Ravennae, Honorio VIII. et Theodosius III. aa. conss.
With this constitution, Honorius imposes some positive changes to the conditions of prisoners through the application of the observance of the dies dominicus.
In fact, the emperor orders that on Sundays judges must investigate the condition of prisoners, by meeting them and obtaining information from them. In particular, they were to check that the detainees were not subject to any treatments against humanitas and ensure that the commentarienses, appointed to manage the prisons and the custody of the detainees,Footnote 75 saw to providing sustenance for them and that the prisoners were taken to the baths under custodia.
If the judges or their officia did not enforce these provisions, they would be fined twenty pounds of gold (while the high-ranking members of the office staff three pounds of gold). Again, the emperor established that the bishops were to be involved, guaranteeing assistance and religious comfort for the detainees, also dealing with controlling the officials.Footnote 76
The constitution marks an important step forwards in the discipline relating to precautionary imprisonment, a sector already affected by different imperial interventions (particularly, by constitutions that aimed to make the situation of the detainees less harsh, or to accelerate proceedings to make imprisonment as short as possible).Footnote 77
The interesting aspect here for us lies in the close connection between the innovations introduced by Honorius and the festivity of Sunday. According to some scholars, the dies dominicus is used by the emperor for spreading the Christian message further, a message which must find practical application in an environment of pain and suffering as prison is, even though it has also been highlighted that Honorius had an “affected” attitude, which was not actually guided by a profound sense of justice.Footnote 78
The final part of CTh. 9,3,7 is also significant, which provides for the involvement of bishops in the assistance to prisoners,Footnote 79 an involvement which on one hand can be seen as a sign of Christian charity and on the other could be interpreted as the necessary integration of a state organization that was inefficient in itself.Footnote 80
From this point of view, it has to be stressed that Honorius himself issued other constitutions involving bishops in various frameworks of civil life; this could be seen as a sign of the decadence of the public system of the Western empire at that time.Footnote 81
From this point of view, it may be interesting to remember that in the sixth century, within the Concilium Aurelianense V dated 549, rules are established that are very similar to those that can be read in Honorius’ constitution. In fact, intuitu miserationis, it is provided that anyone in prison must be visited by the archdeacon or by the manager of the church; in compliance with the divine precepts, with mercy, they should be assisted in their needs. Again, the bishop was to appoint a diligent and faithful person, who saw to finding the essential items for prisoners; the bishop himself was responsible for providing the necessary supplies, to be taken from the episcopal residence.Footnote 82 It seems worthy of attention that in conciliar sources, rules of this type are testified for the sixth century. From this point of view, on the other hand, the emperors appear in the front line, anticipating models that were to be imposed subsequently in the conciliar canonsFootnote 83.
V Paschal Period and Criminal Trials: Two Constitutions by Theodosius I
Among the imperial interventions relating to Christian feasts subsequent to the Edict of Thessalonica significant for judicial activities in general, various constitutions placed between 380 and 408 are reported. With these measures, through similar mechanisms to that seen in relation to the Sunday feast, the emperors govern the Paschal period in a “special” way.
On this point it is useful to remember, as already mentioned in the second paragraph, that the Christian Easter was originally celebrated in relation to the Jewish one, and that Constantine was the first emperor to treat this festivity ex professo. During the Council of Nicaea in 325 a single date was determined for all the Christian communities, to be celebrated on a Sunday.Footnote 84
Over the course of the fourth century, the Christian Easter and the pre-Paschal period developed greatly from a liturgical and organizational point of view, also thanks to the legislative interventions of the Christian emperors.Footnote 85 Think, just by way of example, about the important laws on Paschal indulgentia, obviously inspired by the dimension of forgiveness which cannot be dealt with here.Footnote 86
We will approach these constitutions in chronological order, examining interventions relating to torture and criminal proceedings.Footnote 87
The first constitution, CTh. 9,35,4, was issued by Theodosius just a month after the Edict of 380, when the emperor was still in Thessalonica, and it was accepted in CTh. 9,35 De quaestionibus. It was also included in Codex Iustinianus, under the title C. 3,12 De feriis (C. 3,12,5):
CTh. 9,35,4. Imppp. Gratianus Valentinianus et Theodosius AAA. Albuciano vicario Macedoniae. Quadraginta diebus, qui auspicio cerimoniarum paschale tempus anticipant, omnis cognitio inhibeatur criminalium quaestionum. Dat. VI. Kal. April. Thessalonicae, Gratiano A. V. et Theodosio A. I conss.
The constitution establishes the important and noteworthy rule according to which all criminal proceedings were suspended during Lent.Footnote 89
The text is not clear as the expression cognitio criminalium quaestionum is used here. The word quaestio, as we know, usually refers to torture, to the application of tormenta, which in the Roman criminal trial was used both in relation to defendants and to witnesses. In fact, the title 9,35 of Codex Theodosianus, De quaestionibus contains constitutions dedicated to various profiles connected with the discipline of such inquiry measure.Footnote 90 However, in Theodosius’s provision, it appears to be used with a more general meaning, that is, related to all criminal proceedings.Footnote 91 For confirmation of this see, for example, Interpretatio of the constitution within the Breviarium Alaricianum:
Int. ad CTh. 9,35,4. Diebus quadrigesimae, pro reverentia religionis, omnis criminaliter actio conquiescat.Footnote 92
The interpretation clarifies the idea that the constitution is directed towards the general suspension of criminal proceedings (it says omnis criminaliter actio conquiescat). Further, with respect to Theodosius’s text, the ratio of the imperial intervention is also explained: pro reverentia religionis, in reverence for religion.
Therefore, the constitution aims to introduce a cause for the suspension of all activities relating to criminal proceedings, including the application of torture, during the period of Lent before Easter. Clearly, all this is related to the idea of forgiveness and rebirth connoting the Paschal period, which Theodosius decides to use as a way of governing and influencing the time scales of the criminal trial, providing for the suspension thereof.
As has been highlighted, the suspension of the criminal proceedings and torture during the period of Lent is established intuitu temporis, that is, considering the peculiarities and sacredness of the moment in time. Up to now, exemptions from the application of tormenta were envisaged, for example, intuitu personae, with regard to the status taken on by the party who was to be subjected to torture, and never in relation to the time in which the use of this measure of inquiry was used.Footnote 93
The expression of “forty days” reflects the duration of Lent in the Illyricum and in Greece: it was a law issued concerning the Macedonian provinces.Footnote 94 By scholars who believe that through CTh. 2,8,1 and C. 3,12,2 Constantine continued to move in a pagan context, the innovative importance of Theodosius’s constitution is underlined. It appears to be the first measure by a Christian emperor to envisage the interference between the liturgical festivities and the civil (judicial) calendar. It also appears to be the first testimony of the adaptation of the time scales of the judicial administration to the reality of Christianity.Footnote 95
Some years later, the emperor Theodosius returned to the subject through a new constitution, in 389. The constitution is addressed to the praetorian prefect of the East,Footnote 96 while the previous one was applied in the Illyricum.Footnote 97 Therefore, we read CTh. 9,35,5:
CTh. 9,35,5. Imppp. Valentinianus Theodosius et Arcadius AAA. Tatiano P.P. Sacratis quadragesimae diebus nulla supplicia sint corporis, quibus absolutio expectatur animarum. Dat. VIII. Id. Septemb. Foro Flaminii, Timasio et Promoto conss.
A very similar precept is established here to the one found in the previous measure, although more restricted; whereas CTh 9,35,4 provided for the suspension of all criminal proceedings, here the emperor’s attention concentrates only on the supplicia corporis, hence exclusively on the application of torture, which is suspended during Lent. It therefore follows that on the basis of this law, in the East, there was no limitation of the criminal trial as a whole, rather only in relation to the use of tormenta against rei and witnesses.
From the comment dedicated by Gothofredus to the constitution clues also emerge that allow some hypotheses to be put forward on the events that led to its promulgation, although only in brief. In fact, Gothofredus also points out that in literary sources, particularly in the work of John Chrysostom,Footnote 99 a revolt is remembered that took place in Antiochia, in relation to which the criminal trial was held during Lent that year. The revolt, caused by the imposition of new taxes, led to the destruction of some statues of the emperor.
It appears that during the trial the judges made use of torture against witnesses in such a cruel way as to push the bishop Flavianus to appeal to the emperor to ask for his intervention, which would actually have led to the issue of the law of CTh. 9,35,5.Footnote 100
The law, which refers in part to the contents of the previous oneFootnote 101, prohibits the use of supplicia during Lent with a very clear reason: it is a time reserved for absolutio animarum. During this period, bodies had to be left in peace: “Non sunt seculari iudicio corpora supplicio afficienda, quando a caelesti iudicio absolutio animarum expetitur.”Footnote 102
Lent is thus dedicated to penitence, reconciliation, conversion and admission of guilt: the constitution therefore reflects the evolution which over the course of the fourth century the conception of the Paschal period underwent.
The reciprocal forgiveness has become a fundamental aspect of this moment, and the Lenten preaching insisted a lot on the idea of Christian mercy. The idea under the law by Theodosius was probably the same inspiring legislation on amnesty: the celebration of Easter leads to the necessity of pardon for persons tormented by judicial investigation under torture and the fear of punishment.Footnote 103
Moreover, it cannot be excluded that through this constitution Theodosius intended to involve in some way the work of the priests in the penitential ministry, ensuring that confessions were obtained without the judges having to resort to the application of tormenta.Footnote 104 From this point of view, it is interesting to note that, according to John Chrysostom, during the trial after the insurrection in Antiochia, the judges themselves suffered for the torture, because they were forced to be instruments of an awful tragedy:Footnote 105 application of torture seems to be, first of all, a problem for the torturers.
The constitutions seen now, as mentioned, originally regarded the Illyricum and the Eastern prefecture.
However, it is quite possible that even in the Western part of the Empire there was legislation that aimed to prevent the application of torture during the Paschal period or connected with certain Christian feasts.
In De obitu Valentiniani consolatioFootnote 106 Ambrosius reconstructs the reaction of the emperor Valentinian in relation to a query from the praetorian prefect regarding a criminal trial: the response points towards excluding all types of cruelty during the days defined as sancti:Footnote 107 respondit ut nihil cruentum sanctis praesertim diebus statueretur.Footnote 108 It is not unlikely that the reference is to a prohibition to apply the inquiry measure of torture.
VI The Case of latrones Isauri
It has therefore been seen that with reference to Lent, criminal proceedings and torture undergo an important suspension intuitu temporis, hence connected with the particular nature of the reference time. However, this does not prevent the emperors from intervening, also providing for important derogations, dictated by contingent reasons.
Still on the subject of the relationship between the Paschal period and criminal procedure, and in particular suspension of torture, there is in fact a constitution of Theodosius II that we must remember, since it introduces a significant exception to the prohibition expressed in the previous constitution. This is the text, dated 408:
CTh. 9,35,7. Impp. Honorius et Theodosius AA. ad Anthemium pp. Provinciarum iudices moneantur, ut in Isaurorum latronum quaestionibus nullum quadragesimae nec venerabilem pascharum diem existiment excipiendum, ne differatur sceleratorum proditio consiliorum, quae per latronum tormenta quaerenda est, cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. Dat. V kal. Mai. Constantinopoli Basso et Philippo conss.
The emperor admonishes the judges of the provinces who were not to suspend the application of torture against latrones Isauri during Lent and on Easter day. As we know, the Isaurians can be attributed with numerous raids and, in particular, they can be blamed for the depredation, between 404 and 408, of South and East Asia Minor, of the Diocese of the East and the island of Cyprus.Footnote 110
It is therefore a constitution that contains emergency rules, clearly dictated to reinforce the instruments available to the iudices when it was time for them to try those responsible for such actions.
The explanation that the emperor provides on the need for such exceptional treatment is very significant: … cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. Theodosius II states that the application of torture on latrones Isauri is justified for reaching safety and welfare of many: and in view of this divine forgiveness can be easily obtained.
The words of the emperor combine requirements for justice and religious aspects perhaps even more clearly than what happens in the other constitutions examined up to now: the application of Christian time, previously also used for governing civil and legal activities (criminal trial, application of torture, etc.) finds a limit here depending on contingent requirements.
It is perhaps possible to make out a connection with what was established by Constantine in C.3,12,2: as will be remembered, by ratifying abstention from work on the dies Solis, Constantine had however allowed work in the fields, clearly for reasons of “public utility”;Footnote 111 Theodosius II, again to satisfy practical needs (in the case in question security and safety), established the possibility for the judges to resort to torture also on days considered as feasts.Footnote 112
Within the context of the Codex Iustinianus derogation to the right of torture appears to be wider. In fact, by including the constitution in C. 3,12 De feriis, the compilers made a significant change to the text:
C. 3,12,8(10). Impp. Honorius et Theodosius AA. Anthemio pp. Provinciarum iudices moneantur, ut in quaestionibus latronum et maxime Isaurorum, nullum quadragesimae nec venerabilem pascharum diem existiment excipiendum, ne differatur sceleratorum proditio consiliorum, quae per latronum tormenta quaerenda est, cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. D. v. k. Mai. Constantinopoli Basso et Philippo conss.
Justinian’s version of the constitution says in quaestionibus latronum et maxime Isaurorum: this means that the judges were free to apply torture during Lent and on Easter day against all latrones, and not only against Isaurians.Footnote 114
VII Conclusion
The collection of constitutions examined herein has enabled us to reconstruct, although briefly, how the Christian emperors used some of the Christian feasts to influence the civil calendar, with special regard to the administration of justice.
It is an operation pursued particularly following the Edict of Thessalonica of 380 but that could possibly have its roots further back in time if we accept the idea that Constantine’s constitutions on the dies Solis already had a Christian connotation, as many scholars believe.
These statutes are originally intended for different regions, issued to respond to particular, local needs. Think, for example, at CTh. 9,3,7 by Honorius. Involving the bishops on Sunday for the benefit of those in pre-trial detention in prison, the emperor dictated a measure justified by practical, contingent needs of integration of an inadequate public apparatus. Or to CTh. 9.35.5, of Theodosius I, who suspended torture during Lent probably following what happened after the revolt of Antiochia, when even the judges were horrified by the harshness of torture. Again for local needs, the same emperor re-enacts the torture during Lent, when the Isaurian thieves came into consideration.
In spite of the different motivations behind the various constitutions, it is possible to glimpse a common line gradually brought forward by the emperors: the occasion of the Christian feasts is taken for the introduction of measures soothing brutal aspects of trials and administration of justice; also the pagans could benefit from these measures.Footnote 115
Through imperial legislation, what we can define as “Christian time” became, at least with reference to certain sectors, the “time of law.”
The Roman emperors began articulating time based on the liturgical days, and the most important Christian feasts became reference points for handling judicial activitiesFootnote 116 and, more generally, for a new social organization.
Reference was made in the first paragraph to the fact that the emperors apply, in their constitutions on the times of the trial, a pattern that comes from the pagan world, where there was a distinction (unknown to Christianity) between dies fasti and dies nefasti. We remembered Jerome in the first paragraph, for whom every day, without distinction, is a feast, because the resurrection is celebrated every day.
From this point of view it is possible to state that the pagan culture, through law, had an important impact on Christianity. These imperial constitutions led to a significant outcome: exactly as happened in the Roman pagan world, the days of Christian feasts took on a particular connotation which made them different from the others. Sacred time therefore obtained a special connotation, a qualitas that it did not have before.
A quick examination of the language used by the emperors in the different measures clarifies this point. Think, for example, about one of the constitutions dedicated to Sunday (CTh. 2,8, 18) where the emperor states that who does not respect the Sunday is a sacrilegus, because he turns aside from the inspiration and ritual of holy religion. Again, in Leo’s constitution, Christian feast days are defined as dies festi and are connoted as special, since they are days dedicated to the Highest Majesty. In the measures on the suspension of torture during Lent, Theodosius I states that this period has a singular quality, being reserved for absolution of souls.
At the same time, the opposite assumption is also true: through imperial legislation, Christianity, with its liturgical feasts, has a strong impact on the Roman world.Footnote 117 Contractual and legal activity, precautionary imprisonment, the criminal trial, and torture are governed also considering the liturgical requirements of Christians.
This means that the importance of the feasts leaves the “private circle” of Christian communities and meets with the “public circle,” contributing to regulating times and social organization, with deep consequences (in a much wider perspective) on the Western world.Footnote 118
A significant example of “law as religion” and “religion as law.”
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