This imperial constitution was issued at Constantinople by Theodosius I and his son Arcadius, then Augustus, on the 8th of November 392 CE (the name of the other son of Theodosius, Honorius, is present in the address of the constitution but it is a mistake, as he was recognised Augustus in the Eastern part of the Empire only in January 393 CE). There is no name of any Western emperor because Valentinian II had been found dead in May of the same year, and Theodosius did not recognise the authority of Flavius Eugenius who had proclaimed himself Augustus on the 22th of August 392 CE. The constitution presented here was addressed to the praetorian prefect of the East, Rufinus, who was Christian (see PLRE I, Rufinus 18, p. 778-781). This constitution is part of the laws that have been selected – and probably abridged – by the compilers of the Theodosian Code, realised at the request of Theodosius II and published at Constantinople in 438 CE. This constitution is particularly interesting because it is part of the series of anti-pagan measures edited by Theodosius I from 391 CE onwards (about the historical context see below). More precisely, the constitution presented here shows that in 391-392 CE Theodosius I ordered that all kind of sacrifices, be they public or private ones, divinatory ones or not (that is sacrifices which were performed in a private or official context in order to consult the entrails of the victims to foresee the future), were forbidden in the Empire.
Before analysing some aspects of the constitution presented here, it is essential to say a few words about the historical context in which this had been enacted. During the first twelve years of Theodosius’s reign, his religious policy was characterised by the fact that he fought some pagan practices that he considered immoral or dangerous – such as the divinatory sacrifices –; as a consequence, he nominated some fervent Christian officers who had to apply anti-pagan measures in some parts of the Eastern Empire. For instance, in Egypt in 385 CE, the praetorian prefect of the East and fervent Christian Cynegius closed most of the temples (see Zosimus, New History IV.37.3; Libanius, Speeches XXX). In the same period an imperial constitution was enacted that strengthened the sanctions against those who performed divinatory sacrifices (CTh XVI.10.9 of the 25th of May 385 CE). This policy went, however, out of Theodosius’s control in some Eastern regions, especially at the end of the 380s, as Theodosius was in Italy. Theodosius had actually defeated Maximus on the 28th of Augustus 388 CE, and then he stayed in Italy until 391 CE, and especially in Milan where he met Ambrose (about Theodosius’s trip see Destephen, Le voyage, p. 78). At that time, in some Eastern regions, such as Syria, some fanatic Christian groups attacked temples, but also Jewish or Samaritan synagogues. One of the most famous events of this kind was the violent actions that took place at Callinicum (actual Raqqa in Syria) in August 388 CE, during which some monks destroyed a Valentinian church (Valentinians were Gnostics), and some fanatic Christians burnt a synagogue with the support of their bishop. These violent acts reinforced the anger of many Eastern provincials. Some members of the civic and provincial élites, be they Jewish or pagan, decided to unite their force and to ask Theodosius to punish these attacks (about this alliance between Jews and pagans, and the fact that most of Theodosius’s legislation to protect synagogues and temples at that time is the result of their complaints, see Nemo-Pekelman, Rome, p. 83-86). As Theodosius needed their support and could not see inter-community violence disturb order inside many Eastern cities, he accused the praetorian prefect of the East, Cynegius of not having sanctioned the culprits severely. Theodosius ordered that the monks be beaten and the synagogue rebuilt with the money of the bishop. This imperial decision was not welcomed by Ambrose, who argues that a Christian emperor could not favour Jews and heretics in such a way (see Ambrose of Milan, Letters XL and XLI – both letters are commented upon in Ambrose of Milan, Letter XLI.26). Letter XLI implies that due to the pressure of the bishop of Milan, Theodosius rescinded his order to rebuild the synagogue. This first imperial renunciation in front of the bishop of Milan, was followed by a second one in April 390 CE, when after having ordered the slaughter of 7000 inhabitants of the city of Thessalonica, Theodosius was banned from receiving communion by Ambrose until he had repented. Thus, it is after eight months of penance that ended with Theodosius’s communion on Christmas day of 390 CE that Theodosius then enacted a series of constitutions in 391 and 392 CE that fitted in with a very aggressive anti-pagan policy. The law presented here is part of this series.
After the selection made by the compilers of the Theodosian Code, the structure of the constitution of the 8th November 392 CE can be summarised as follows. The preamble is particularly interesting because it exposes all the cultic rituals of the Roman religion whose performance was then totally prohibited for every Roman citizens. As rightly said by Nicole Belayche, the enumeration of these rituals is so complete that it gives a precise idea of what the Roman religio as defined by Cicero was (Belayche, “Realia versus leges,” p. 343). The text enumerates bloody sacrifices offered to simulacra – a term that can be understood as referring to both the images of the gods and idols –, but also un-bloody ones that consisted in various forms of offerings made to his personal lar, to a Genius, and to the penates. It is thus interesting to note that through this law any form of libation addressed to a Genius – be it the Genius of an individual, of the Senate, of the Roman people or even that of the emperor – was officially and explicitly prohibited, at least in the Eastern part of the Empire (remember that Eugenius who then ruled the Western provinces is not mentioned in the address). Interestingly, in the Western part of the Empire the prohibition to perform sacrifices in honour of the various Genii in a private or in a public context must have been implicitly contained in a law enacted in 391 CE that forbade the practice of any sacrifices (about this law see below). It is interesting to note that it is in the Western Empire that the latest literary references to a Genius are preserved (see Claudian who sings in 404 CE the Genius imperii in his Panegyric for the sixth consulship of Honorius, 612; and Rutilius Namatianus who in his poem On his Return composed around 418 CE says a final goodbye to the Genius of the Senate, see On his Return I.16; see also Symmachus, Relatio III.8; Prudentius, Against Symmachus II 370-487).
In § 1 of the constitution presented here, it is stated that to take part into any steps of divinatory sacrifices, that is sacrifices performed in order to foresee the future in the entrails of the victims, is totally forbidden and that they fell under the category of the crimen maiestatis, that is the crime of high treason. In § 2 it is recalled that it is forbidden to worship images made by men, to offer them incense, to ornament a tree with ribbons, and to erect a turf altar. Any person who contravenes this prohibition will see the building or the land in which he performed these impious rites confiscated by the fiscus. This kind of offence is presented as a violation of religion (violatae religionis), the term religio here referring to the Christian religion, and the culprit is said to be a slave to the “gentile superstition” (gentilicia...superstitione famulatum). Interestingly, the use of the adjective gentilicius is the first attestation of the use of a derivative from the adjective gentilis to mean “pagan,” a meaning frequently used up to the first decades of the fifth century (about this point see Demougeot, “Remarques,” p. 340-343). In § 3 the text recalls the penalty that had to be inflicted on the person performing a sacrifice in all kinds of contexts – that is in a public or in a private one – and that its amount was of twenty five pounds of gold. This penalty also had to be implemented for any accomplice. In § 4 further details about the implementation of the law are given.
Concerning the evolution of the imperial legislation regarding the performance of sacrifices, contrary to a historiographical tradition that saw in Constantine the first emperor who would have taken measures against sacrifices, it has been well shown by Lucio De Giovanni that, under his reign, only the practice of divinatory sacrifices performed in a private context (sacrificia domestica) or during the night were prohibited, as it slipped out of public control. Traditional haruspicina, that is the consultation and interpretation of the entrails of the sacrificed victims by official priests in a public context, remained authorised (De Giovanni, Costantino, p. 15-104; Delmaire, “Législation,” p. 321-325). In that perspective, Constantine’s policy did not differ from that of previous emperors (this kind of prohibition is already attested under Tiberius’s reign; see Delmaire, “Législation,” p. 320). The legislation about sacrifices evolved temporarily at the end of the reign of Constantius II. Actually, two constitutions have been preserved, one of them forbidding the performance of any sacrificial practices on penalty of death (CTh XVI.10.6 of the 19th February 356 CE), the other strengthening the legislation regarding the closing of temples while renewing the interdiction to perform sacrifices, the culprits being condemned to death and confiscation of their goods (CTh XVI.10.4 of the 1st December 356 CE). Constantius II had thus been the first emperor who had temporarily punished the performance of public sacrifices (about this legislation see Belayche, “Realia versus leges,” p. 354-357; for a different interpretation of these laws, see Delmaire, “Législation,” p. 326-328, Delmaire actually suggests that, through these laws, Constantius II only prohibited the performance of sacrifices in temples, whereas sacrifices performed openly on altars would have remained authorised). All that remains certain is that these measures fitted in a broader interventionist pro-Christian policy. The anti-pagan measures taken under Constantius II may thus have led to the temporary suspension of the public sacrifices, even if it is highly probable that this suspension must have been effective in Constantinople and in some Eastern cities where Constantius II spent most of his time, and not in all the cities of the Empire. As rightly shown by Nicole Belayche, after the temporary reinstatement of the pagan cults and rites under Julian’s reign, the question of the prohibition of the sacrifices had not been a priority of the imperial power before the 380s. Before that period, Christian emperors did not want to make the Christian religion the official religion of the Empire. A good example of this phenomenon is that still in 371 CE one constitution produced by Valentinian I is very similar to the policy towards sacrifices from Constantine onwards: the practice of the official cult is not forbidden and the traditional haruspicina is still authorised. Divinatory practices performed at night, however, remained strictly prohibited in a private context because they were magical and thus dangerous (CTh IX.16.9; Belayche, “Realia versus leges,” p. 345, 357; Delmaire, “Législation,” p. 330).
The situation evolved in the 380s, as shown by a constitution of Gratian, Valentinian II, and Theodosius of the 21st of December 381 (repeated in 385 CE in CTh XVI.10.9) that forbade all divinatory sacrifices performed in temples, be they performed during the day or at night time (CTh XVI.10.7; Belayche, “Realia versus leges,” p. 357, 362). The reign of Gratian marked a progressive shift in the religious policy of the imperial power. Measures were taken in order to undermine the economic resources of numerous pagan cults or priesthoods, and also to assert more openly the Christian orientations of the imperial power (see Symmachus, Relatio III.8). However, it is in the 390s that a durable and systematic banning of the performance of all kind of sacrifices happened; a policy that went hand in hand with the systematic closing of temples (about the legal production of that time see Belayche, “Realia versus leges,” p. 357-358, 362-363; Nemo-Pekelman, Rome, p. 87-89). The first anti-sacrificial law dates from the 24th of February 391 CE. It is a constitution addressed by Valentinian II, Theodosius, and Arcadius to the prefect of Rome Ceionius Rufius Albinus, in which he is ordered to close the temples, and to forbid all kinds of sacrifices (CTh XVI.10.10). Then, another constitution of the same three emperors attests that imperial officers had been sent to Egypt to destroy the temple of Serapis in Alexandria, and that Theodosius had ordered the Augustal Prefect and the Comes of Egypt to close all the other temples (CTh XVI.10.11, 16th of June 391 CE). In the constitution of November 392 CE presented here, which was addressed to the praetorian prefect of the East Rufinus, the imperial power recalls that the performance of all kinds of sacrifices – bloody or non-bloody ones – was prohibited. This idea appears in the preamble of the constitution. In a large part of § 1, the legislator seems to be focused on the issue of the performance of divinatory sacrifices that he condemns first generally through the sentence: “If anybody should dare to immolate a victim for the purpose of sacrifice, or to consult the still throbbing entrails... he shall receive the appropriate sentence.” Next, to justify the severity of the sentence he recalls implicitly the traditional equation, already existing at the beginning of the High Empire, according to which the performance of divinatory sacrifices in a private context was dangerous as it drifted towards magical practices. He actually argues that divinatory sacrifices mainly served to forecast someone’s death, and even possibly that of the emperor, an equation that appears as the justification of the sanction: any culprits of such a crime had to be condemned in the same way as for a crime of high treason (see Belayche, “Realia versus leges,” p. 351). Moreover, the other major input of this constitution of 392 CE is that the imperial power clearly states that all forms of pagan cult were then totally forbidden (all of them are enumerated in the preamble). Thus, one direct effect of this law, as of the other laws enacted in 391-392 CE, was the interdiction of Roman polytheistic religion, in all its cultic forms, and throughout the whole Empire.
Finally, one important question raised by this law is that of its implementation. A crucial point about the constitution presented here is that a whole paragraph (§ 4) is dedicated to the sanctions that had to be taken against the officers who would not punish persons who continued to perform pagan rites. The text enumerates the sanctions that should be taken against the defensores, curiales, and governors who would not bring the culprits before a court nor judge them. The fact that the imperial power took the trouble to enumerate these sanctions can be interpreted as a piece of evidence of the fact that it must have been difficult for the imperial power, even at that time, to implement anti-pagan legislation at the civic level, probably because many officers in the civic or provincial administration still believed in the gods (see Belayche, “Realia versus leges,” p. 344, and n. 10). However, in 392 CE, the implementation of this legislation against pagan cults and rites must have been a priority for Theodosius, especially in the Eastern provinces. In 392 CE, the former praetorian prefect of the East Tatianus, who was pagan, was replaced by a fervent Christian, Rufinus, a nomination that can be interpreted as evidence of the fact that the imperial power wanted its decisions regarding pagan cults to be implemented (Nemo-Pekelman, Rome, p. 88-89). Of course, this legislation of Theodosius in the years 391-392 CE did not lead to an immediate disappearance of all the pagan rites and practices in all the regions of the Empire, even in the Eastern provinces which were supposed to be more Christianised due to the influence of clerics and of militant monks. Nicole Belayche has thus quoted the examples of two important shrines in Palestine, that of Mamre and that of the Marneion in Gaza, in which sacrificial practices may have continued up to the beginning of the fifth century (see Belayche, “Realia versus leges,” p. 347-348; Belayche, Iudaea-Palaestina, p. 96-99, 245). There was always a chronological gap between the imperial legislation that imposed a general banning on some cultic practices and its implementation at various local levels. This gap could differ from region to region, and the region’s relationship with the provincial or prefectoral authorities, but also according to the local populations and the officers present there. Having these remarks in mind, it must, however, be emphasized that the legislation of the years 391-392 CE and the law presented here mark a decisive rupture in the imperial policy towards pagan cults. Through the prohibition of all sacrifices, but also all gestures and practices of devotion, the imperial power changed ritualistic Roman religion into a type of personal piety in which prayers and interventions replaced acts and offerings (see Delmaire, “Législation,” p. 333). This change was so important that it must have increased the religious disaffection among the followers of the Roman traditional religion. For the Jews, these anti-pagan measures and the fact that in the 390s they lived in an Empire that was officially defined as a Christian one must have also represented a turning point. This global anti-sacrificial legislation enacted in the 391-392 CE must have also found an echo with their own religious concerns. Actually, bringing offerings or performing sacrifices was part of the injunctions of the Torah, yet these injunctions could not be fulfilled after the destruction of the Jerusalem Temple in 70 CE, as they had to be performed in this very place. While Julian’s attempt to rebuild the Temple in 363 CE may have been mainly motivated by the fact that he wanted to permit to the Jews to sacrifice again (this idea is expressed in various Christian sources dealing with this event, see Ammianus Marcellinus, Res Gestae XXIII.1.1-3), the orientations of the imperial policy in the 390s may have been experienced by the Jews as another piece of evidence of the fact that the hopes that they had had thirty years before had totally vanished.
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