Chapter Three. The Early Church Councils and the ...

their customs in ways that would not offend Christian sensibilities.75

A law passed in 408 by Theodosius II in Constantinople76 ordered the prohibition of
the burning of Haman’s effigy on a cross, during the festival of Purim. This first
law of Theodosius II, is ominous in its curtailing of ancient Jewish privileges.77
While the custom of burning the effigy of Haman was especially common, in some
places this effigy was crucified or hanged on a cross, practices likely to have been
widespread earlier than Christianity’s rise to power.78 Genesis Rabba 30:8 and also
Leviticus Rabba 28:6 portray the tradition that Haman’s punishment was conceived
as a crucifixion, showing this practice not to be an isolated incident.

Emperors Honorius and Theodosius Augustuses to Anthemius,
Praetorian Prefect.
The governors of the provinces shall prohibit the Jews from setting
fire to Haman in memory of his past punishment, in a certain
ceremony of their festival, and from burning with sacrilegious intent
a form made to resemble the holy cross in contempt of the Christian
faith, lest they mingle the sign of our faith with their jests, and they
shall restrain their rites from ridiculing the Christian law, for they
are bound to lose what had been permitted them till now unless they
abstain from those matters which are forbidden (C. Th. 16.8.18).79

Roman Criminal Justice

Although Roman criminal justice was brutal it also was inefficient. There was no
adequate method for detecting crime. Local authorities, the magistrates, curatores
and councils of the cities were expected to denounce the authors of flagrant
breaches of the peace to the provincial governor.80 It appears that generally, the
prosecution of crime was left to private accusers. In order to prevent abuse, the

75 See. Rabello, ‘The First Law’, 163.

76 C. Th. 16.8.1. Translation from Pharr.

77 See Rabello, ‘The First Law ’, 160.
78 See Rabello, ‘The First Law’161–2.
79 See Linder, The Jews, 237. See also Rabello, ‘The First Law’, 159–66.
80 See A .H. M. Jones, The Later Roman Empire 284–602: A Social Economic and Administrative

Survey (2 vols, Oxford Blackwell, 1964), vol. 1, 520–1.

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accuser was obliged to make a formal charge in writing whereby he bound himself
to maintain his accusation, and was liable to severe penalties if he were unable to
substantiate his accusation.81 The repetition of different laws which sometimes
involved the death penalty would suggest that they were not enforced.

Further laws, which were passed by Honorius in 408 and 409, forbade the
harassment of the Catholic cult by Donatists, heretics and Jews, should be seen in
the context of the African church, which suffered violence in those years. Honorius,
emperor of the west was sympathetic towards the bishops’ cause. Again, though
these laws suggest that Jews and Donatists in Africa had cooperated in anti-
Catholic activities, this claim, except for Augustine, is not well supported by other
sources.82

4. Statutes which Restrict Jewish Cult and Activities

Over fifty percent of the Theodosian Code laws on Jews are repressive or hostile.83
A law passed in 329 is sharply antisemitic in style and content, imposing the
sentence of death on Jews who persecute Jewish converts to Christianity, and
imposing penalties on proselytes to Judaism.

It is our will that Jews and their elders and patriarchs shall be
informed that if, after the issuance of this law, any of them should
dare to attempt to assail with stones or with any other kind of
madness – a thing which We have learned is now being done-any

81 See Jones, Later Roman Empire, vol. 1, 521.

82 See Linder, The Jews, 239. The complete text has been preserved in the Constitutiones
Simondianae No. 14 and only partially in two fragments received into the Theodosian Code, C.
Th. 16.2.31 and 16.5.46. Linder, The Jews, 242 ff.

83 These repressive statutes number at least twenty five (from 321–425 CE): 16.8.3 (321 CE),
16.8.5 (335 CE), 16.9.1 (335 CE), 16.9.2 (339 CE), 16.8.6 (339 CE), 16.8.7 (353 CE), 12.1.99
(383 CE), 12.1.100 (383 CE), 16,7.3 (383 CE), 3.1.5 (384 CE), 12.1.157 (398 CE), 12.1.158
(398 CE), 12.1.164 (399 CE), 12.1.165 (399 CE), 16.8.16 (404 CE), 16.8.19 (409 CE), 16.9.4
(417 CE) 16.8.24 (418 CE), 16.8.25 (423 CE), 15.5.1 (425 CE), 16.2.46 (425
CE)+16.5.62/16.5.63, 6.2.47 (425 CE), 16.5.59=16.8.26/16.9.5/16/1022 (Jews classified with
pagans and heretics, with at least ten more hostile measures passed between 383 and 409 CE:
16.7.3 (383 CE) (includes law on Manicheans); 9.45.2 (397 CE), 16.8.14 (399 CE), 16.8.19
(409 CE), 16.8.22 (415 CE), 16.8.26 (423 CE), 16.8.29 (429 CE), 16.8.28 (426 CE), 16.7.7 (426
CE).

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person who has fled their feral sect (feralem sectam) and has
resorted to the worship of God (Christianity) such assailant shall be
immediately delivered to the flames and burned, with all his
accomplices.

1. Moreover, if any person from the people shall betake himself to
their nefarious sect (nefariam sectam) and should join their
assemblies, he shall sustain with them the deserved punishments
(C. Th. 16.8.1.).84

Another such law passed in 396, forbade the establishment of prices for Jewish
merchants and indicates an attack on Jewish economic life.85

Jews Forbidden to Possess Christian Slaves

One special section, Section 9 of Book 16, declares that Jews shall not possess
Christian slaves, and on analysis of the laws, it can be seen that this prohibition is
closely linked to concern for proselytism, and conversion, which is likewise
forbidden, as well as circumcision. Thus, Jews were being restricted on account of
their religion, restrictions which also would have economic repercussions. The
concern arose out of the fact that Jewish law required that male slaves should be
circumcised and converted by ritual immersion in water when entering service of a
Jewish household.86 Concern for the law of niddah in women as well as kashrut
was a consideration in wishing for non-Jewish slaves to be converted when
entering the service of Jews.

A law promulgated by Constantine II in 339, and preserved in two texts, C.
Th.16.8.6 and 16.9.2 prohibited Jews from buying and proselytising non-Jewish
slaves. As in all these laws on slavery, capital punishment was prescribed for its
transgression but was possibly not exacted.

84 See Pharr, Theodosian Code, 467.Linder sees this law as being characteristic of the latter part

of Constantine’s rule. He suggests that the sharpness of the language is to appease the Christian
mobs. See Linder, The Jews, 124.
85 C. Th. 16.8.10.
86 See Ben Zion Wacholder, ‘The Halakah and the Proselytising of slaves during the Gaonic Era’,
Historia Judaica, 18 (1956), 90.

113

If someone of the Jews shall believe that he should buy a slave of
another sect or nation, the slave shall be immediately vindicated to
the fisc; but if he shall circumcise the purchased slave, not only shall
he suffer the loss of the slave, but he shall be punished, indeed, by
capital punishment. But if a Jew shall not hesitate to purchase slaves
who are associated in the venerable faith, all those found with him
shall be immediately be taken away, and he shall be deprived, in no
time at all, of the possession of those men who are Christians (C.
Th. 16.9.2).87

A legal principle had been established in 335 that slaves were not to be converted
to Judaism, and thus were not to be circumcised, and Jews were also forbidden to
persecute converts to Christianity.88 A law passed in 384 reinforced the
prohibition.89 However, in 415, by way of exception, Jews were permitted to
possess Christian slaves on the condition that their slaves should be allowed to
remain Christian.90 This law was not received into the Justinian Code.91

In 417, the legislator prohibited Jews from acquiring Christian slaves, but permitted
Jews to inherit Christian slaves and keep them, providing they were not converted
to Judaism. If conversion occurred, it was decreed that capital punishment should
be exacted.92

Earlier in 415, Honorius had permitted Jews to possess Christian slaves, but under
restricted conditions.93 The repetition of these laws indicates they were not
effective, that Jews were circumcising non-Jewish slaves, and possibly that capital
punishment was not being applied.

87 See Linder, The Jews, 148–9.
88 C. Th. 16.9.1. See Constitutiones Sirmondianae 4, which conserves the text of the whole law.

See also C. Th. 16.8.5 and 16.8.1. Constantine had legislated in 329 that converts to Judaism
and proselytism were to be forbidden. See C. Th. 16.8.1.
89 C. Th. 3.1.5.
90 See C. Th. 16.9.3.
91 See Linder, The Jews, 273.
92 See C. Th. 16.9.4.
93 See C. Th. 16.9.3.

114

Proselytism & Circumcision Forbidden

The laws against proselytism and circumcision continued to be multiplied, while
Christians grew in favour. In 353, Constantius II decreed that the properties of
Christian proselytes were to be confiscated, if they should be joined to sacrilegious
assemblies (sacrilegis coetibus adgregetur).94 A law promulgated in the names of
Arcadius and Honorius in 397 prohibited the conversion to Christianity of Jews
who wished to avoid paying their debts or being punished.95 In 409 a law
condemned God-Fearers, conversion to Judaism and the profanation of Sunday.96 A
law passed in 416 permitted Jewish converts to Christianity to return to Judaism, if
their original motivation for conversion was to escape punishment for crimes, or
material considerations.97

In April 423 a law regulating policy towards Jews, who were classed with pagans
and heretics, likewise spoke strongly against proselytism and circumcision, and
ordered confiscation of the property of proselytes.98 Repressive measure against
Jews were intensifying. However, though the law forbade Jews to buy Christian
slaves, it ignored those already owned by Jews or acquired by means other than by
purchase, including birth. Thus, under the Theodosian Code, Jews could legally
own Christian slaves.99 In June the policy towards Jews, pagans and heretics was
renewed.100 The laws on Jews owing non-Jewish slaves are therefore contradictory.

94 See C. Th. 16.8.7.
95 See C. Th. 9.45.2.
96 See C. Th. 2.8.25.
97 See C. Th. 16.8.23.
98 C. Th. 16.8.26. See also C. Th. 16.9.5 which forbade Jews to buy Christian slaves as well as the

rest of the prohibitions concerning proselytism.

99 See Pakter, ‘Early Western’, 718.
100 C. Th. 16.8.27.

115

Intermarriage

Both church law as reflected in canons from the councils and Jewish law forbade
intermarriage.101 Juster points out that Christianity borrowed the Jewish interdiction
against marriage with infidels and classified the Jews among the latter category.102
When the Fathers of the church spoke against the practice, the first being
Epiphanius103 and Ambrose,104 these passed into the church canons, and from thence
into the imperial law.105

The Theodosian Code makes it evident that intermarriage, legislated against by
several church councils from the time of the Council of Elvira was a serious
problem, where the wives often converted to Judaism. Thus, two years after
Constantius II became Emperor in 339, he issued legislation (Codex Theodosianus
16.8.6.), which made it a capital offence for any Jew to marry a woman employed
in the imperial weaving factories, ‘lest they join Christian women to their deeds of
disgrace.’106

Post alia: Quod ad mulieres pertinet, quas Iudaei in turpitudins suae
duxere consortium in gynaeceo ante versatas, placet easdem restitui
gynaeceo idque in reliquum observari, ne Christianas mulieres suis
iungant flagitiis vel, si hoc fecererint, capitali periculo subiugentur

After other matters: in regard to women formerly occupied in our
weaving-establishments, whom the Jews led to their fellowship in
turpitude, it is resolved that they shall be restored to the weaving-
establishment, and it shall be observed, in the future, that they do

101 See Gen 34:14ff; Exod 34:16; Num 15; Deut 7:3ff; 1 Kgs 11:1ff; Ezra 10; Neh 13:23ff.
102 See Juster, Les Juifs, vol. 2, 46ff.

103 Haeres. 61.1 & 5 (PG 41:1040, 1045).

104 De Abrahamo 1. 9.84 (PL 14:51).
105 Elvira (306) canon 16; Chalcedon (451) canon 14; Orleans (533) canon 19: Clermont (535)

canons 6 & 9; Orleans (538) canon 13; 3rd Council of Toledo, canon 14, which said the
children of these marriages should be baptised.
106 See Feldman, ‘Proselytism’, 9.

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not join Christian women to their deeds of disgrace, or if they shall
do so, they shall be subjected to capital punishment (C. Th.
16.8.6).107

The working force consisted of men and women who were considered to be slaves,
and lived and worked under supervision in establishments set up by the State.
Linder suggests that as the preceding paragraph in the code deals with the
proselytising of male-slaves, this paragraph, by analogy deals with the proselytising
of women-slaves.108 He also suggests that the law is concerned with intermarriage
between Jews and non-Jewish women.109

Legislation against Christians marrying Jews was repeated by Theodosius, in his
own name and those of Valentinian II and Arcadius on 14 March 388. It was clear
that the purpose of the law was to close another possible channel for the spread of
Judaism, and therefore was aimed at the segregation of Jews and Christians.
However, this remained an isolated measure. Both the editors of Alaric and
Justinian were to accept this law, which meted out the same punishment as for an
adulterous marriage.110

Measures Hostile to Jews

From the latter part of the fourth century, earlier in the period of Gratian, but
especially from the time of Theodosius, hostile or unfriendly attitudes towards Jews
multiplied in the Code, the privileges in favour of Christianity increasing to the
detriment of Jews, and the even worse fate of heretics and Manicheans.

Participation in Jewish Cults Forbidden.

The Apostolic Constitutions had forbidden Christians to participate in Jewish

107 See Linder, The Jews, 148.
108 Linder, The Jews, 150.

109 Linder, The Jews, 150.

110 See Linder, The Jews, 86.

117

ceremonies.111 Various Councils in the fourth century had forbidden the keeping of
the Sabbath or Jewish feasts by Christians or the acceptance of festal presents from
Jews. In Antioch, John Chrysostom, well trained in the art of rhetoric, had railed
against judaising Christians in the late fourth century, devoting most attention in
his eight sermons to the autumn feasts. In 383, these interdictions, possibly through
the influence of the church received the status of civil law, with Gratian’s passing
of a law forbidding Christians from participating in pagan, Jewish and Manichean
cults.112

Jews in the Public Service

The laws which ruled on the exemptions of decurians in the public service reveal
the deteriorating status of the curial system rather than specifically anti-Jewish
legislation, as Christian clergy were not exempted. In 383, Gratian repealed the
exemption from curial liturgies that Jewish men of religion had enjoyed, and Jews
who had belonged to the curial classes were made to serve on the curias.113 The law
expresses Gratian’s Christian bias. Extensive legislation on this subject was
undertaken from the reign of Valentinian I and Valens until the end of 386.114

In 398, Honorius repealed for the western part of the empire under his rule, the
confirmation granted by Arcadius of the ancient exemption115 of Jewish clergy from
curial liturgies.116 In 399, Arcadius applied this law to the eastern part of the
empire.117

111 Apostolic Constitutions, 71 (70).
112 See C. Th. 16.7.3.
113 See C. Th. 12.1.100 and 12.1.99.
114 See Linder, The Jews, 164 and C. Th. 12. 1.59–115.
115 C. Th. 16.8.13 (397 CE).
116 C. Th. 12.1.158. See also 12.1.157 which obliged all religions to serve in the curia who were

legally liable.
117 See C. Th. 12. 1. 164. and 12. 1.165.

118

The Theodosian Code reveals that the social status of Jews was being eroded, so
that certain professions were not permitted to Jews. Progressively Jews were
subordinated to Christians through these laws. A law passed in 418 determined the
limits of the employment of Jews in public service offices, and three services,
executive agents, palatins and the military were closed to Jews. However, Jews
were permitted to serve in municipal offices and as lawyers.118 In 425, a law given
by Placidia, acting for the five year old Valentinian II, repealed Johannes’ anti-
Christian measures. Heretics and schismatics were to be banished from cities, and
Jews and pagans expelled from the imperial administration and the legal
profession.119 As yet, the status of Jews was superior to the latter classes of people.
The text should be seen against the background of the attempt to eradicate the
Pelagian heresy in Gaul, where Amaius cooperated with the Bishop of Arles, and
was also directed to act against the heretics of Rome.120

We also deny to the Jews, and to the pagans, the right to practise law
and to serve in the State service; we do not wish people of the
Christian Law to serve them lest they substitute, because of this
mastery, the venerable religion by a sect. We command, therefore,
that all persons holding an unpropitious error be excluded, unless
they are succoured by a timely emendation (Constitutiones
Sirmondianae, No. 6).121

Control of Jewish Authorities

In 396 Arcadius passed a law forbidding public insults to the Patriarch, showing
that this problem was occurring for the Jews. Offenders were to be punished by the
state, as this was an offence against a Roman citizen.122 However, by the second
half of the fourth century criticism of the Patriarch was frequent, and a law

118 See C. Th. 16.8.24.

119 The text is preserved in Constitutiones Sirmondianae No 6, C. Th. 16.5.62; 16.2.46; 16.5.63;

16.2.47; 16.5.64.
120 Linder, The Jews, 305.
121 See Linder, The Jews, 308.
122 See C. Th. 16.8.11.

119

demoting Gamaliel for his political actions was passed in 415.123 Such a law
marked the circumscription of the Patriarch’s position, and his subjection to the
legislation that was applied to individual Jews.124 The law makes it clear that the
Patriarch was prohibited from founding new synagogues, was commanded to
destroy synagogues in deserted places, and was stripped of any right to judge
Christians, or to preside at trials involving Jews and non-Jews. Again, if the
Patriarch or another Jew converted a freedman or slave to Judaism he was to be
punished, and he was forbidden to own Christian slaves. It is probable that
Gamaliel had transgressed in all these matters, and had overstepped his imperially
designated legal powers.

A law give by Honorius in his name and that of Arcadius in 399 prohibited the
collection of taxes from synagogues by the Patriarch's delegates and the synagogue
officers, ordering the sums already collected to be handed over to the treasury.125
The law referred to the Archsynagogue, presbyter and the apostles as emissaries
sent by the Patriarch, but Linder comments that only the apostles fitted this
description, for the synagogue officers were resident in their communities.126

It is a matter of shameful superstition that the Archsynagogues, the
presbyters of the Jews and those they call apostles who are sent by
the patriarch on a certain date to demand gold and silver, exact and
receive a sum from each synagogue, and deliver it to him. Therefore
everything that we are confident has been collected when the period
of time is considered, shall be faithfully transferred to our Treasury,
and we decree that henceforth nothing shall be sent to the aforesaid.
Let the populace of the Jews know, therefore, that we have removed
this depredatory tax. If, however, people shall be sent to perform
this task of exaction by that despoiler of the Jews, they shall be
handed over to the governors, in order that they shall be sentenced
as violators of our laws (C. Th. 16.8.14).127

123 C. Th. 16.8.22. See also Linder, The Jews, 196.

124 C. Th. 16.8.22.

125 C. Th. 16.8.14.

126 C. Th. 16.8.14.

127 See Linder, The Jews, 216.

120

The comment ‘that despoiler of the Jews’ (ab illo depopulatore Iudaeorum),
evidently referring to the patriarch, purports to be motivated by a desire to ease the
burdens of the Jews, in an attempt to gain their goodwill, and appears to have
directed Julian’s declaration of 363 to the Jews.128 It represents, however, an act of
interference in the administration of Jewish affairs, and a restriction of freedom of
movement. In 404, a reversal of this law was enacted.129

We order that all the privileges granted by our father, of divine
memory, and by the emperors before him to the excellent patriarchs
and to those set by them over others, shall retain their force (C. Th.
16.8.15).130

This also meant that Jews again were exempted from curial liturgies.131 However, it
was a dangerous precedent, the policy towards Jews now being according to the
whim of the particular legislator in power. The emperors had allowed the privileges
of the Jews to be dependent on their good will, and did not necessarily see these
privileges as ancient rights that were inviolate. In 429, Theodosius II dealt with the
Crown Tax, which the Jews used to pay every year to the Patriarch and his
household, appropriating it for the treasury.132 By this stage the Patriarchate had
ceased to exist, though apparently not by decree of the Emperor.133 It seems evident
that the office of Patriarch had been severely compromised by the law of 415 which
forbade the establishment of new synagogues and forbade him to judge
Christians.134

The law passed in April 404 on Jewish and Samaritan agents is not entirely clear

128 ‘The worst burden of the yoke of slavery imposed upon you in the past has been that you were
subjected to unpublished taxes’. Epistulae, 51, as cited by Linder, The Jews, 156–7.

129 C. Th. 16.8.15.
130 See Linder, The Jews, 221.
131 See C. Th. 12.1.158, which repealed this exemption and 12.1.157.

132 See C. Th. 16.8.29.

133 See Linder, The Jews, 320.
134 See C. Th. 16.8.22.

121

for, though it concerns offences in conjunction with the privilege of the Executive
Agent, it does not appear to be a formal prohibition against Jews and Samaritans
serving as executive agents. The law passed in March 418 against Jews being
employed in three of the branches of the public service as executive agents, palatins
and in the military, indicates that no previous interdiction against recruiting Jews to
the central government existed till this time.135 Seven years later, in 425,
Valentinian II (425–455) decreed that Jews and pagans would no longer be
permitted to enter the military or to plead cases.136 It seems clear, however, that
Jews continued to practise law, because in 468, Anthemius (467–72) banned all
non-Catholics from the bar through his edict Nemo vel in foro.137 This law was also
not enforced as Anthemius was beheaded in Rome by the Burgundian King
Gundobad. Shortly afterwards in 476, the western empire fell to the German
Odoacer.138

Justinian Code

The Theodosian Code remained as the basis of subsequent law codes, being
succeeded by the Justinian Code, which came into effect in 534, in the east, but had
little effect in the west till the twelfth century. Twenty-five laws out of thirty- seven
or eight laws in the Justinian Code which deal with Jews, are derived from the
Theodosian Code, which originated in the fourth and fifth centuries.139 Justinian
abolished more than half of the fifty plus laws dealing with the Jews in the
Theodosian Code and effectively abolished the legality of Judaism.140 Christianity,
when fostered by the imperial system, had effectively risen to dominance in the
space of less than a century. Juridical separation of Christianity from Judaism had
begun to take effect.

135 See C. Th. 16.8.24. and Linder, The Jews, 280.
136 Constitutiones Sirmondianae, No. 6.
137 C.J. 1.3.15=C.J.1.5.12.9.
138 See Pakter, ‘Early Western’, 723.
139 See Linder, The Jews, 46–47.
140 See Parkes, The Conflict, 246.

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Conclusion

It was quite clear that the church network had been strengthened by official
recognition by the Christian emperors, when Christianity became a licit religion.
The church’s power grew steadily from the time of Constantine, its numbers
multiplying, while a power crisis developed in imperial government, especially in
the west, where attacks from barbarian kings were taking their toll. The fall of the
Roman Empire is conventionally dated to 476 CE. If the western empire had
disintegrated, the east is traditionally said to have remained unified till about the
fifteenth century.141 It was also evident that the growing power and intolerance of
the church boded ill for Jews. Since the church’s power was moral rather than
judicial, the church alone could not have effected separation. When Christianity
became the religion of the empire, the church and the secular authorities
collaborated to erode the position of Jews, so that, even socially, there was
separation between Jews and Christians.

The Theodosian Code in its restrictive measures against the Jews set the lines for a
growing lack of tolerance. Roman law enforcement was not efficient. The
contradictions and withdrawals of repressive laws and the sheer number of
repetitions of the same laws indicate that in practice these laws were ineffective.
Church influence was possibly not yet strong at this period, but it was growing.

Other laws reflect the progressive decay of the curial system. The interference with
the Patriarchy indicates that Gamaliel, for example, did not heed the restrictions
against Jews. Why was the Patriarchy abolished later? Had the Jewish authorities
decided that it was better to be less conspicuous in face of rising Christian power
and aggression? Again, the interference with Jewish money collected for Jewish
purposes was a symptom of imperial financial difficulties. Despite problems with
enforcement, it was significant that the imperial laws at this time gave legal

141 Averil Cameron, The Later Roman Empire. AD 284–430 (Hammersmith, Fontana, 1993), 187.

123

sanction to the condemnation of judaising practices by church authorities.
Conditions had been created for the juridical separation of the church from
Judaism. The Theodosian Code was a significant step in this direction. The
Justinian Code, which came later was revelatory of a further estrangement, for, by
the sixth century, many of the privileges and protective laws concerning Jews
present in the Theodosian Code had been removed.

124