Prison, Punishment and Penance in Late Antiquity 9780521517515, 2014041683

This book traces the long-term genesis of the sixth-century Roman legal penalty of forced monastic penance. The late ant

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Prison, Punishment and Penance in Late Antiquity
 9780521517515, 2014041683

Table of contents :
Acknowledgements page ix
List of abbreviations xii
Maps xviii
Introduction 1
part i punishment, reform and penance 23
Chapter 1: Philosophical and domestic foundations 25
Chapter 2: Punishment and reform in early imperial legal thought 45
Chapter 3: Christian principles of punishment 64
Chapter 4: Punishment, reform and penance in late Roman law 89
Conclusions 113
part ii prison and punishment 117
Chapter 5: The public prison in late antiquity 119
Chapter 6: Private power and punitive confinement 151
Chapter 7: Exile and confinement 194
Chapter 8: Exile, prison and the Christian imagination 242
Conclusions 275
part iii prison and penance 279
Chapter 9: Monastic confinement and ecclesiastical justice 281
Chapter 10: Monastic confinement and imperial justice 314
Conclusions 342
Appendices 354
Appendix I: Places of forced residence, fourth to sixth centuries 358
Appendix II: Exiles in confinement 374
Appendix III: Places of monastic confinement 380
Bibliography 387
Index 415

Citation preview

PRISON, PUNISHMENT AND PENANCE IN LATE ANTIQUITY

This book traces the long-term genesis of the sixth-century Roman legal penalty of forced monastic penance. The late antique evidence for this penal institution runs counter to a scholarly consensus that Roman legal principle did not acknowledge the use of corrective punitive confinement. Dr Hillner argues that forced monastic penance was a product of a late Roman penal landscape that was more complex than previous models of Roman punishment have allowed. She focuses on invigoration of classical normative discourses around punishment as education through Christian concepts of penance, on social uses of corrective confinement that can be found in a vast range of public and private scenarios and spaces, as well as on a literary Christian tradition that gave the experience of punitive imprisonment a new meaning. The book makes an important contribution to recent debates about the interplay between penal strategies and penal practices in the late Roman world. julia hillner is Senior Lecturer in Medieval History at the University of Sheffield. She is co-editor, with Kate Cooper, of Religion, Dynasty, and Patronage in Early Christian Rome, 300–900 (2007).

PRISON, PUNISHMENT AND PENANCE IN LATE ANTIQUITY JULIA HILLNER

University Printing House, Cambridge cb2 8bs, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9780521517515 © Julia Hillner 2015 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2015 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloging in Publication Data Hillner, Julia. Prison, punishment and penance in late antiquity / Julia Hillner. pages cm isbn 978-0-521-51751-5 (hardback) 1. Punishment – History – To 1500. I. Title. hv8508.h55 2015 365ʹ.937–dc23 2014041683 isbn 978-0-521-51751-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Jan, con amore

Contents

Acknowledgements List of abbreviations Maps

page ix xii xviii

Introduction

1

part i punishment, reform and penance

23

Chapter 1:

25

Philosophical and domestic foundations

Chapter 2: Punishment and reform in early imperial legal thought

45

Chapter 3:

64

Christian principles of punishment

Chapter 4: Punishment, reform and penance in late Roman law Conclusions

89 113

part ii prison and punishment

117

Chapter 5: The public prison in late antiquity

119

Chapter 6: Private power and punitive confinement

151

Chapter 7: Exile and confinement

194

Chapter 8: Exile, prison and the Christian imagination

242

Conclusions

275

part iii prison and penance

279

Chapter 9: Monastic confinement and ecclesiastical justice

281

vii

Contents

viii

Chapter 10: Monastic confinement and imperial justice Conclusions Appendices Appendix I: Places of forced residence, fourth to sixth centuries Appendix II: Exiles in confinement Appendix III: Places of monastic confinement Bibliography Index

314 342 354 358 374 380 387 415

Acknowledgements

The bulk of this book was written in the shadow of the Justizvollzugsanstalt III, a prison for female and young delinquents in Frankfurt-Preungesheim, while I was holding a Humboldt research fellowship at the Goethe Universität in Frankfurt and living in this suburb. The proximity of the prison, which has an international reputation for the quality of its rehabilitative programmes but so far may have prevented full gentrification of this neighbourhood, was a subtle reminder of how much we take the prison penalty for granted as an integral part of modern society, but also with how many conflicting expectations we burden its penal aims. A BBC Radio 4 programme, aired on 23 January 2012, suggested that modern society wants prisons to make serious criminals ‘disappear’, but at the same time turn less serious ones into fully functioning members of society again and in this way help to reduce crimes rates (‘Start of the Week’, with Andrew Marr, John Podmore, Simon Stephens, Mike Hough and Shami Chakrabarti). It argued further that the former aim often seems to take over in public discourses at least in contemporary Britain, with the result that alternatives to the prison penalty are rarely discussed. Writing this book has taught me that, perhaps because the late Roman empire did not know an institution towering over the penal landscape similar to the modern prison, defining, justifying and enforcing penal strategies opened up equally profound moral but different practical dilemmas. Punishment is a complex theme with legal, social, cultural and philosophical ramifications. During the period of research for and the writing of this book I wandered down countless of these avenues. Looking back, I can see that each of these were valuable to figure out what this book is about, even though I could not explore them all as thoroughly or perfectly as I or my readers may have wished. As a distinguished academic once said to me, ‘A sign of quality in academic work is also that it gets finished’, and I have now heeded this advice. For having reached this point, a round of profound thanks is in order. ix

x

Acknowledgements

Over a decade ago Tina Sessa suggested the topic of late Roman prisons to me. Even though the book probably has turned out to be very different from the one she envisaged, I owe so much to her thoughtful advice and friendship. Several colleagues have accompanied the book’s genesis throughout and I would like to thank them all for their guidance along the way. First and foremost, I literally would not be where I am without Kate Cooper and Conrad Leyser, and I hope they are aware of the infinite depths of my gratitude. Jill Harries and Caroline Humfress have read various drafts of this book, from its inception to the final version. I feel truly blessed having been able to benefit from their wisdom beyond their published work, which in itself has been such a great influence on this book. While I was in Frankfurt, Hartmut Leppin read a draft of the first four chapters. I would like to thank him for saving me from errors of fact and thought and more generally for being such an inspiring and generous host. The various members of the ever-changing ‘late antiquity group’ at the University of Manchester have endured reading drafts of chapters over many years and I need to thank all of them, but in particular Marios Costambeys, Anne Kurdock, Andrew Marsham, Clare Pilsworth, Dirk Rohmann, Martin Ryan, Hannah Williams and Jamie Wood. As an ‘honorary’ member of this group, Renate Smithuis has been a terrific source of advice on anything to do with Scripture. As a true friend, Rosa Vidal Doval long ago and entirely unsolicitedly gifted me with copies of Pavón Torrejón’s La cárcel y el encarcelamiento en el mundo romano and of Torallas Tovar and Pérez Martín’s Castigo y reclusion en el mundo antiguo, as such opening up a whole world of previously unknown Spanish scholarship to me. The same momentous intervention is true of Peter Liddle, who lent me a copy of Allen, The World of Prometheus, and of Eric Pratt, who gave me Mackenzie’s Plato on Punishment, both of which have been eye-openers. I hope Peter can forgive me that I took a long time to return his book, and Eric that I still haven’t done so. Countless other kind people have provided me with comments and bibliographical references over the years, often as members of the many sympathetic audiences I have encountered at conferences and research seminars where I presented parts of this book. I need to single out Guy Geltner, Elisabeth O’Connell, Richard Sowerby and Kevin Uhalde, who have all shown an untiring interest in my research. All my colleagues at the University of Sheffield have been outstanding in their support. I would like to thank Gilly Sharpe from the School of Law for giving me directions in the field of modern criminology. In the Department of History most thanks go to Charles West, who heroically

Acknowledgements

xi

read the entire manuscript, but I am also immensely grateful to Helena Carr, Simon Loseby, Amanda Power and Martial Staub for creating such a congenial work atmosphere in the ‘medieval section’and to Julie Gottlieb for keeping me sane. Hannah Probert has provided tremendous assistance with the maps and the index. The various students who have taken my MA course ‘Crime and Punishment in Late Antiquity’ since 2010 have created a paramount forum for the discussion of many ideas presented in this book. A succession of head of departments, Mike Braddick, Bob Moore and Mary Vincent, have patiently waited for the completion of this book, and I would like to thank them for their trust and for granting me a semester of study leave in 2010, as well as allowing me to take up secondment at the University of Frankfurt in 2011–2012. The year in Frankfurt was funded by the Alexander-von-Humboldt Foundation, while the early stages of the research for this book were supported by a British Academy Postdoctoral Fellowship. I am very grateful for having had backing from two institutions that are academic pillars of their respective countries. My editor at Cambridge University Press, Michael Sharp, has given unwavering support to this project from a very early stage and despite having to tolerate a very long wait. I owe much to him and his team, in particular Gillian Dadd, Liz Hanlon, David Mackenzie and Alice Nelson. I could also not have wished for superior Cambridge University Press readers. Needless to say that all remaining errors are mine alone. I owe most thanks to my children, Karl and Antonia, who first taught me the terrifying responsibility that lies with those who have the power to punish (or, to use a more modern term of ‘parenting’, to ‘point out consequences’); to my husband for many conversations on how to manage precisely this responsibility in theory and in practice (and for correcting my many errors of language in this book); and to my parents, who, as I understand in retrospect, managed it artfully. It is good custom to apologise for the length of time a book has taken to be written. Yet, one of the reasons for the long making of this book was my choice to spend most of my evenings, holidays and weekends with my family, without, happily, thinking too much about punishment, prison or penance. March 2015

Manchester

Abbreviations

AASS ACO ANRW Barrow BIDR BHL BHG BHO Brev. Blockley

Boon ByzZ CAH Callu Charles

Acta Sanctorum (Antwerp, Brussels: Société des Bollandistes, 1643–) E. Schwartz (ed.), Acta Conciliorum Oecumenicorum, 2 tomes (Berlin: De Gruyter, 1914–1940) Aufstieg und Niedergang der Römischen Welt R. H. Barrow (ed.), Prefect and Emperor: The Relationes of Symmachus, AD 384 (Oxford: Clarendon Press, 1973) Bullettino dell’Istituto di Diritto Romano Bibliotheca Hagiographica Latina (Brussels: Société des Bollandistes, 1898–) Bibliotheca Hagiographica Graeca (Brussels: Société des Bollandistes, 1895–) Bibliotheca Hagiographica Orientalis (Brussels: Société des Bollandistes, 1910) Breviarium Alarici (in CTh, vol. 1.1) R. Blockley (ed.), The Fragmentary Classicising Historians of the Later Roman Empire. Eunapius, Olympiodorus, Priscus and Malchus (Liverpool: Cairns, 1983) A. Boon (ed.), Pachomiana Latina (Louvain: De Meester, 1932) Byzantinische Zeitschrift Cambridge Ancient History J. Callu (ed.), Symmaque: Lettres, vols. 1–2 (Paris: Les Belles Lettres, 1993) R. H. Charles (transl.), The Chronicle of John (c. 690AD), Coptic Bishop of Nikiu (London, Oxford: Oxford University Press, 1916) xii

List of abbreviations CIC CIL CPh CQ CJ CSCO CC CSEL CTh

D de Boor De Plinval Dindorf DOP FIRA Funk Gassò and Batlle GCS Herding

xiii

Corpus Iuris Civilis, 3 vols. (Berlin: Weidemann, 1877, 1895, 1912; repr. 1954) Corpus Inscriptionum Latinarum (Berlin: Reimer et al., 1862–) Classical Philology Classical Quarterly P. Krueger (ed.), Codex Justinianus (CIC, vol. 2; Berlin: Weidmann, 1877, repr. 1954) Corpus Scriptorum Christianorum Orientalium (Leuven: Peeters, 1903–) Corpus Christianorum Series Latina (Brepols: Turnhout, 1953–) Corpus Scriptorum Ecclesiasticorum Latinorum (Vienna: Österreichische Akademie der Wissenschaften, 1866–) T. Mommsen, P. Meyer (eds.), Theodosiani Libri XVI cum Constitutionibus Sirmondianis et Leges Novellae ad Theodosianum Pertinentes, vols. 1.1, 1.2 and 2 (Berlin: Weidmann, 1905, repr. 1954) P. Krueger (ed.), Digesta (CIC, vol. 1; Berlin: Weidmann, 1895, repr. 1954) K. de Boor (ed.), Theophanis chronographia (Leipzig: Teubner, 1883–1885) G. De Plinval (ed.), Cicéron. Traité des Lois (Paris: Les Belles Lettres, 1959) L. A. Dindorf (ed.), Ioannis Malalae chronographia (Bonn: Weber, 1831) Dumbarton Oak Papers S. Riccobono, V. Arangio-Ruiz et al. (eds.), Fontes iuris Romani anteiustiniani, vols. 1–3 (2nd edn, Florence: G. Barbèra, 1940–1943) F. X. Funk (ed.), Didascalia et constitutiones apostolorum, vol. 1 (Paderborn: Schwenigh, 1905) P. Gassò, C. Batlle (eds.), Pelagii I papae epistulae quae supersunt (556–561) (Barcelona: In abbatia Montiserrati, 1961) Die griechischen christlichen Schriftsteller (Berlin: De Gruyter, 1897–) W. Herding (ed.), Hieronymi de viris illustribus (Leipzig: Teubner, 1879)

xiv JEH JECS JRA JRS JTS Kroll, Skutsch, Ziegler Labourt Loeb

List of abbreviations Journal of Ecclesiastical History Journal of Early Christian Studies Journal of Roman Archaeology Journal of Roman Studies Journal of Theological Studies W. Kroll, F. Skutsch, K. Ziegler (eds.), Firmicus Maternus, Mathesis, 2 vols. (Leipzig: Teubner, 1968) J. Labourt, Saint Jérôme, Lettres, vols. 1–8 (Paris: Les Belles Lettres, 1949–1963). Loeb Classical Library (Cambridge, Mass.: Harvard University Press, 1912–). Volumes cited, with further abbreviations : Ammianus Marcellinus, Roman History, 3 vols., ed. J. C. Rolfe (1939–1950); Aristotle, Rhetoric , ed. J. H. Freese (1926); Aristotle, Nicomachean Ethics, ed. H. Rackham (1926); Aristotle, Politics, ed. H. Rackham (1932); Aulus Gellius, Attic Nights (Noctes Atticae), 3 vols., ed. J. C. Rolfe (1927); Boethius, Consolation of Philosophy, ed. H. F. Stewart et al. (1973); Cassius Dio, Roman History, 8 vols., ed. E. Cary et al. (1914–1925); Cicero, In Catilinam (Cat.), ed. C. Macdonald (1976); Cicero, On Duties (off.), ed. W. Miller (1913); Cicero, On the Orator (de oratore), ed. E. W. Sutton et al. (1942); Columella, On Agriculture (De re rustica), 3 vols., ed. E. S. Forster (1941–1955); Eunapius, Lives of the Philosophers, ed. W. C. Wright (1921); Horace, Satires (Sat.), ed. H. Fairclough (1926); Julian, Orations 1–5 (Panegyric on Eusebia), ed. J. Wright et al. (1913); Juvenal, ed. S. M. Braund (2004); Libanius, Selected Orations (or.), 2 vols., ed. A. F. Norman (1969–1977); Livy, Roman History, 14 vols., ed. B. O. Foster et al. (1919– 1959); Martial, Epigrams, 3 vols., ed. D. R. Shackleton Bailey (1993); Plato, Gorgias, ed. W. R. M. Lamb (1925); Plato, Cratylus, ed. H. N. Fowler (1926); Plato, Laws, 2 vols., ed. R. G. Bury (1926); Plato, Phaedo, ed. H. N. Fowler

List of abbreviations

LP Mariev

xv

(1914); Plato, Protagoras, ed. W. R. M. Lamb (1924); Plato, Republic, 2 vols., ed. C. EmlynJones et al. (2013); Plato,Timaeus, ed. R. G. Bury (1925); Pliny, Natural History, 10 vols., ed. W. H. S. Jones et al. (1938–1962); Pliny, Letters (ep.), Panegyricus, 2 vols., ed. B. Radice (1969); Plutarch, Lives, vol. 10: Tiberius and Gaius Gracchus, ed. B. Perrin (1921); Procopius, Buildings, ed. H. B. Dewing (1940); Procopius, Secret History, ed. H. B. Dewing (1935); Procopius, History of the Wars, vol. 1: Persian War, ed. H. B. Dewing (1914); Quintilian, The Orator’s Education (Inst.), 5 vols., ed. D. A. Russell (2002); Rutilius Namatianus, De Reditu Suo, Minor Latin Poets, vol. 2, ed. J. Wight Duff (1934); Scriptores Historiae Augustae (SHA), 3 vols., ed. D. Magie (1921–1932); Seneca, Epistles (ep.), 3 vols., ed. R. M. Gummere (1917– 1925); Seneca, Moral Essays, vol. 1: De Constantia (de const.), De Ira, De Clementia (de clem.), ed. J. W. Basore (1928); Seneca, Moral Essays, vol. 2: De Consolatione ad Helviam (cons. Helv.), ed. J. W. Basore (1932); Seneca (the Elder), Declamations, 2 vols.: Controversiae (Contr.), ed. M. Winterbottom (1974); Sidonius Apollinaris, Letters (ep.), ed. W. B. Anderson (1936); Suetonius, Lives of the Caesars, vol. 1: Tiberius, ed. J. C. Rolfe (1914); Valerius Maximus, Memorable Doings and Sayings, 2 vols., ed. D. Shackleton Bailey (2000); Xenophon, Cyropaedia (Cyr.), ed. W. Miller (1914) L. Duchèsne (ed.), Le Liber Pontificalis, vol. 1 (2nd edn, Paris: De Boccard, 1955) S. Mariev (ed.), Ioannis Antiocheni fragmenta quae supersunt (Berlin, New York: De Gruyter, 2008)

xvi MGH

MEFR/A Musurillo NMai NPNF NTh NVal NJust P&P Paschoud PBSR PCBE PL PLRE PLS PG PO RAC RE RechAug RHD RIDA SC

List of abbreviations Monumenta Germaniae Historica (Cologne: Böhlau, Hanover: Hahnsche, Stuttgart: Hiersemann, Munich: MGH, 1826–) AA Auctores Antiquissimi LL Leges SRM Scriptores Rerum Merovingicarum Mélanges de l’École française de Rome/Antiquité H. Musurillo (ed.), The Acts of the Christian Martyrs (Oxford: Clarendon Press, 1972) Novels of Majorian (in CTh, vol. 2) Nicene and Post-Nicene Fathers Novels of Theodosius II (in CTh, vol. 2) Novels of Valentinian III (in CTh, vol. 2) R. Schoell, W. Kroll (eds.), Novellae (CIC, vol. 3) (Berlin: Weidmann, 1912, repr. 1954) Past & Present F. Paschoud (ed.), Zosime, Histoire Nouvelle, 3 vols. (Paris: Les Belles Lettres, 1971–1989) Papers of the British School at Rome Prosopographie chrétienne du Bas-Empire (Paris : CNRS, 1982–) J. Migne (ed.), Patrologia Latina (Paris: Imprimerie Catholique, 1844–1865) J. Martindale et al. (eds.), Prosopography of the Later Roman Empire, 3 vols. (Cambridge: Cambridge University Press, 1971–1992) Patrologia Latina Supplementum (Brepols: Turnhout, 1900–) J. Migne (ed.), Patrologia Graeca (Paris: Imprimerie Catholique, 1856–1866) Patrologia Orientalis (Brepols: Turnhout, 1904–) Reallexikon für Antike und Christentum Real-Enzyklopädie der klassischen Alterthumswissenschaften Recherches Augustiniennes Revue historique de droit français et étranger Revue internationale des droits de l’antiquité Sources chrétiennes (Paris: Les Éditions du Cerf, 1941–)

List of abbreviations SDHI Sirm. Veilleux Vives ZPE ZKG ZSR

xvii

Studia et Documenta Historiae et Iuris Sirmondian Constitutions (in CTh, vol. 2) A. Veilleux (transl.), Pachomian Koinonia, 3 vols. (Kalamazoo: Cistercian Publications, 1982) J. Vives (ed.), Concilios visigóticos e hispanoromanos (Barcelona, Madrid: Consejo Superior de Investigaciones Científicas, 1983) Zeitschrift für Papyrologie und Epigraphik Zeitschrift für Kirchengeschichte Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (kan.) (kanonistische Abteilung) (rom.) (romanistische Abteilung)

In the footnotes and appendices, titles of primary sources are usually cited in full in Latin or English, with bibliographical references in brackets. Where abbreviations of titles are used, these generally follow the conventions of PLRE and/or Der Neue Pauly. Almost all papyri references are drawn from the online Duke Data Bank of Documentary Papyri (via papyri.info) and employ the abbreviations used there.

Maps

Places of forced residence, fourth to sixth centuries (excluding monastic confinement). On the fifth-century map, the outline of the Roman empire represents the situation after the Vandal entry into North Africa in 429, and on the sixth-century map the outline is that of the Roman empire under Justinian after 535, even though some exile places date to an earlier period in the respective centuries. Some locations of exile places are approximate.

Key

Cities Imperial residence cities Places of forced ordination Islands Oasis Mines or Quarries Fortresses or fortified settlements

Map 1: Fourth century.

xviii

Maps

Key

Cities Imperial residence cities Places of forced ordination Islands Oasis Mines or Quarries Fortresses or fortified settlements

Map 2: Fifth century.

xix

Maps

xx

Key

Cities Imperial residence cities Places of forced ordination Islands Oasis Mines or Quarries Fortresses or fortified settlements

Map 3: Sixth century.

Introduction

This book revisits an old, but often dismissed question: did Roman ideas of justice encompass a concept of ‘reform’ of an offender through punishment, and, if so, did Roman society develop penal institutions in order to achieve this objective? In 1899, the great German scholar Theodor Mommsen investigated this very question in his seminal study of Roman criminal law, Das Römische Strafrecht. While acknowledging that an idea of ‘reform’ through punishment was at times entertained in Roman legal philosophy, Mommsen came to the conclusion that it was only a ‘shallow thought’. For Romans, it was not the offender, but the victim and ultimately society, or indeed the Gods, who were to benefit from the infliction of punishment. In the same work, Mommsen wrote that punitive imprisonment, which is at the centre of many modern concepts of the social rehabilitation of criminals, was prohibited under Roman law. Roman law only allowed the use of prisons for preventive custody, a stage in processing criminals before trial or execution.1 Mommsen’s position has been influential, not only because he was one of the most important historians of Roman law and history of the nineteenth century (and, alone among his peers, noble-prize winning), but also because it corresponded well with social theories of punishment developed in the course of the twentieth century that linked the rise of a prison penalty to changing concepts of punishment between the pre-modern and the modern worlds.2 While not denying retributive and deterrent purposes of punishment, or the values of social theories on punishment, I will show in this book that the penal landscape of the Roman world was more complex than these previous models allow, and that, particularly if we shift the attention to the late 1

2

Mommsen (1899) 48, 299, 960–963; the quote is from 4: [ein] flache[r] Gedanke. On modern attitudes to the prison penalty and its relationship with an expectation of ‘reform’ of the criminal see Garland, D. (1990). For an overview of twentieth-century sociological assessment of the ‘birth of the prison’ see Garland, D. (1990), in particular Chapters 2 and 6. On Mommsen see Rebenich (2002).

1

2

Introduction

Roman world and beyond the study of Roman legal texts, forms of imprisonment understood as ‘reformative’ had their place in this landscape. I will achieve this by taking seriously, on the one hand, late Roman normative discourses around punishment as education reaching back into classical antiquity and fuelled by Christian concepts of penance, and, on the other, the variety of social practices of coercive and punitive confinement happening in the late Roman world: in the public, the domestic, the ecclesiastical, and, most crucially, the monastic spheres.

Approaches to prison and punishment Mommsen’s Römisches Strafrecht is still the fundamental study of Roman criminal law and has cast a long shadow over subsequent scholarship. For most of the twentieth century, Roman concepts of imprisonment have received little attention. Standard works on Roman criminal law largely limited themselves to re-iterating Mommsen’s statement that the prison sentence, when and if applied, was an illegal deviation from an ideal model of punishment, and hence dedicated only passing references to the institution of the Roman prison.3 As a consequence, the first complete surveys of Roman prisons did not start to appear until only twenty years ago.4 While it also adheres to Mommsen’s perspective, Jens-Uwe Krause’s Gefängnisse im Römischen Reich (1996) is outstanding, as it shifts the focus away from legal discussions of the prison to a socio-cultural history of imprisonment and those who suffered from it. The reader of Gefängnisse im Römischen Reich comes away with a dazzling impression of the sheer variety of forms of imprisonment that were imposed in the Roman world, well beyond the narrow context of public criminal prosecution. Krause, however, does not yet take into account that at his time of writing the traditional interpretation of punitive imprisonment in Roman law had also begun to be challenged. As early as 1972, Walter Eisenhut maintained, based on Caesar’s proposal of a penalty of lifelong imprisonment for the Catilinarian conspirators in 63 bc, that punitive imprisonment was a common penalty even in Republican Rome.5 While this is a debatable position, the most representative outcome of the reassessment of the Roman prison penalty is Andrea Lovato’s Il carcere nel diritto penale romano 3

4

5

See e.g. Brasiello (1937) 367; Garnsey (1970) 148–149; Robinson (1995), 6, 13, 103; Bauman (1996) 30, 170 fn. 39. Lovato (1994); Krause (1996). On Lovato’s position see also below Chapter 5 and Rivière (1994) 579–652, who again rejects the notion of the punitive prison sentence. Eisenhut (1972) 268–282.

Introduction

3

dai Severi a Giustiniano (1994). His work is informed by an understanding of Roman law as a continuously developing system that drew on the experiences and choices of Roman officials, rather than just legal norms. These choices included the prison sentence, at least for lower-rank offenders, which, according to Lovato, had a legitimate place in the spectrum of Roman penal practice. While Krause and Lovato’s interventions have finally woken the Roman prison from historiographical slumber and sparked the debate, particularly between continental historians, about the punitive role of the prison in Roman law,6 a discussion of the link between punitive imprisonment and Roman justifications of punishment is still in its infancy. In its most basic definition, punishment is the intentional infliction of something physically or psychologically unpleasant by someone with authority in a given context onto another individual or group as the consequence of that individual’s or group’s violation of established norms or customs.7 Yet, justifications for and forms of punishment differ between historical cultures and historians have often used the study of these differences to trace attitudes to society and social values, as well as social change in a given period. Where the Roman period is concerned, scholars have traditionally tended to match justifications of state-inflicted punishment to more or less well-defined political phases of Roman history. More than half a century ago, the Italian legal historian Francesco De Robertis famously argued that archaic Roman law, as witnessed in the Twelve Tables of the fifth century bc, promoted a deterrent function of punishment, where the repelling nature of the punishment taught offender and onlookers not to commit crimes (again). In classical times, roughly from the first century bc to the third century ad, the embracement of stoicism led to the rise of retributive justifications, where punishment was seen as intrinsically moral and deserved and hence had to be crime-specific, proportionate to the nature of the crime. The late Roman empire, however, with its autocratic political culture and corresponding demands for brutal repression of crime, saw a return to endorsing deterrent punishment.8 More recent scholarship has called into question such somewhat onedimensional approaches.9 In accordance with Hellenistic ideals of good kingship and the model of the Roman paterfamilias, early imperial 6

7 9

See in particular Neri (1998); Pavón Torrejón (2003); and two conference proceedings BertrandDagenbach (1999a) and Bertrand-Dagenbach (2004a). 8 Zaibert (2006) 29–31. De Robertis (1948) 169–196; De Robertis (1954). Sitizia (1990) 211; Bonini (1993) 401; also see Humbert (1991) 137.

4

Introduction

emperors were interested in portraying themselves and being portrayed as ‘just’ and ‘moderate’ in punishment, but what ‘just’ meant was open to debate and could shift according to context. Essentially philosophical definitions of punishment as retributive complemented, but also conflicted with, a politically opportune emphasis on deterrence and prevention of crime, or social expectations such as the vindictive or material satisfaction of victims and the re-establishment of communal integrity through the labelling of deviants as outcasts.10 Furthermore, the paternalistic aspect of Roman imperial ideology also stressed clemency and the protection of the weak as fundamental imperial virtues, which led to different principles in punishment altogether, including discretion to demonstrate leniency.11 The competition between different discourses on punishment continued in the late Roman period. On the one hand, we can see increasing imperial promulgation of harsh penalties.12 On the other, we can observe an emphasis on mercy for the offender.13 Both of these developments can be linked to the growing influence of Christianity, but also to the continuation of a political philosophy that centred on imperial philanthropy. Even though late Roman emperors stopped using the pater patriae title in the course of the fourth century, the rise of the idea that the emperor was chosen by God, the ultimate father, only increased the connection between emperor and fatherhood in late antiquity.14 As Michael Gaddis has shown recently, the late Roman concept of imperial paternalism and the in-built endeavour for ‘salvation’ was decidedly authoritarian and frequently used to justify judicial violence and what one might call ‘social hygiene’, the removal of those labelled ‘defiled’ from the ‘pure’ community, by emperors, but also by imperial officials and by Christian bishops, who were progressively becoming part of the establishment.15 While this is a very important observation, this book seeks to demonstrate that this very concept also left room for other experiments in punishment.

10

11

12 13

14

15

For the paternalistic foundation of imperial ideology and its Hellenistic and Roman roots see Alföldi (1971); Stevenson (1992) 421–436; Roller (2001). On Roman clemency see Dahlmann (1962) 188–202. On the often conflicting relationship between clementia and iustitia see Millar (1992) 516–517. Garnsey (1968) 141–162; Robinson (2007) 130–157. Biondi (1954) 425–428; Gaudemet (1979) 481–508. On the divergence between these two normative tendencies see Krause (2004) 75–80. Bowersock (1986) 298–307. For the continuation of Hellenistic principles of rulership into late antiquity see the fundamental Dvornik (1966); Pazdernik (2005) 195–196. Gaddis (2005) 133–149.

Introduction

5

Approaches to punishment and penance: monastic confinement The present book illuminates one such experiment in punishment: the replacement of more traditional penalties with penitential confinement of offenders as a form of exile. Over the last years, the penalty of exile and its relationship with the imperial debates about punishment alluded to above have attracted considerable attention. In his magisterial ‘Plenum exiliis mare’. Untersuchungen zum Exil in der römischen Kaiserzeit (2011), Frank Stini has demonstrated that the remarkable rise of the penalty of exile in both legal practice and legal norms during the early empire can be directly related to the described need of emperors, and their delegate judges, to meet diverse expectations of justice. Exile, and forced labour, its sister-penalty for lower-rank offenders, was a flexible penalty that could be temporary or lifelong, varied in severity, and, crucially, avoided the legal killing of an offender (although in the contemporary mindset forced labour was frequently associated with the death penalty due to its arduous conditions).16 Daniel Washburn’s Banishment in the Later Roman Empire (2012) has shown that the penalty became even more attractive in the fourth and fifth centuries because it was reversible and hence to some extent opened the avenue to imperial pardon, which increasingly became linked to Christian principles of ‘reform’.17 Washburn’s excellent study takes us up to the mid-fifth-century empire. Yet, as this book will show, his conclusions are equally valid, if not more so, for the penalty of exile in the late fifth and the sixth century. Crucial here is the substantial evidence attesting the use of coenobitic monasteries as places of exile, linked to the obligation to perform penance, from the fifth century on. The phenomenon of monastic confinement has so far mostly been studied from the medieval perspective, which reflects the fact that it was frequently applied throughout the early Middle Ages.18 In a groundbreaking article published in 2001, Mayke De Jong has argued that monastic confinement, or monastic exile as she preferred to call it, can be related to the increasing quest of early medieval kings for punitive practices that offered the opportunity to further their image as Christian rulers.19 The present book will build on these previous studies, but shifts the focus back to the fifth and sixth centuries and to the late Roman empire, where the 16 17

18 19

Stini (2011); on forced labour see Millar (1984) 128–147; Gustafson (1994) 421–433. Washburn (2007), now published as Washburn (2012). References to Washburn’s study throughout this book usually relate to Washburn (2007). Sprigade (1964); Laske (1973); Laske (1978) 321–330. De Jong (2001) 291–328; see also Busch (1996) 561–588, who connects the use of monasteries as places of exile under the Carolingians to a ‘verstärkt christlich fundierten Herrscherethos’. For a discussion of terminology see further below in this Introduction.

6

Introduction

penalty first appeared in legal practice and where it became incorporated into public law. The latter was a remarkable development, as for the first time a penalty that combined a focus on spatial confinement with the expectation of moral improvement or even social re-integration upon signs of moral improvement became part of written Roman law. The immediate context of the establishment of monastic confinement as a statutory public penalty was the reign of Justinian (527–565).20 Justinian is a Roman emperor who continues to attract modern biographers and whose name, alongside that of Augustus and Constantine, has been used to define an entire ‘age’ of Roman imperial history.21 This is not surprising, as Justinian was a seemingly inexhaustible ruler. His political projects stretched from the military, with the re-conquest of the Roman west, over the administrative, particularly the combat against tax evasion, to the religious, the reconciliation of the opponents to the Council of Chalcedon, and, of course, the legal, with the codification of Roman law and a high output of legislation. All these ventures were fed by a vision of earthly unity, with the emperor at the helm, resembling the heavenly realm. Justinian, in fact, described the emperor as ‘the common father of all’ and the law as the method to bestow imperial welfare mirroring that of God.22 Whilst profoundly Christian, this perspective also owed much to the principles of Hellenistic kingship mentioned above.23 Justinian is often described as a radical and autocratic reformer, who prescribed ‘almost modern’ policies to accomplish his envisaged social order.24 Yet, as has also been stressed by historians, the emperor’s proficiency and the universalising rhetoric of his laws should not mask that his style of government, particularly when it came to legally regulate social order, was often traditionally reactive, as Roman imperial government had been over centuries. As Charles Pazdernik has argued, what makes Justinian unique was his ‘determination . . . to articulate a vision of his role in the imperial office that elevated the opportunistic . . . to the level of principle’, where the guiding principle was the improvement of his subjects’ Christian morality.25 Based on these conclusions, this book will show 20 21

22 24 25

As noted by Noethlichs (1994) 18–40, who first collected the corresponding evidence. See Maas (2005). For biographies of the emperor see, among others, Barker (1966); Browning (1971); Moorhead (1994); Evans (1996); Meier (2003); Evans (2005); Leppin (2011). 23 NJust 98.2.2 (539): κοινὸϛ ἅπασι πατὴρ. Pazdernik (2005) 186. On the ‘modern’ aspects of Justinian’s vision of government see Leppin (2011) 171. See Gray (1993) 241–270 for an excellent analysis of Justinian’s legal output as reaction to influences from the provinces and court-circles. The quote is from Pazdernik (2005) 186. For the guiding principles underlying Justinian’s legislation see Leppin (2011) 171–172, who rightly stresses the genuine Christian inspiration.

Introduction

7

that, while the transformation of monastic confinement into an officially endorsed penalty, and as such, its incorporation into a vision of the Christian empire, was characteristic for Justinian’s innovative rule, the practice of monastic confinement itself was not the result of an ideological sea-change in the mid-sixth century, but can be related to a variety of structural features and developments of late Roman justice. As such, its study provides a distinctive window into the mechanisms of ‘creeping’ change of the period which we are now wont to call ‘late antiquity’.26 Furthermore, monastic confinement was a phenomenon that appeared both in the East and the West of the late antique world, and should therefore be regarded as an expression of cross-Mediterranean cultural attitudes (while at the same time not excluding regional variation). On one level, the appearance of monastic confinement can be linked to the institutionalisation of the monastic movement and its integration into the landscape of episcopal and imperial patronage particularly from the fifth century on.27 Due to these developments monastic space came to be used for the administration of legal punishment, as had other non-civic spaces before. As Fergus Millar has shown, from the early empire on we can observe, indeed, the use of pre-existing spaces for Roman penalties with a spatial component, such as islands, mines, quarries, and imperial factories, and the very appearance of particular penalties, such as forced labour, once corresponding spaces became available. Seen from this perspective, the monastery was the last in a long line of institutions to be incorporated into the particularly Roman strategy of government, which Kate Cooper has recently called ‘minimalist’, ‘light touch’ and ‘cost-effective’.28 Furthermore, the appearance of monastic confinement also needs to be seen in the context of the Christian bishop’s rise as a civic authority and the evolving relationship between bishops and monasteries, particularly after the Council of Chalcedon in 451, which established the subordination of monasteries under the control of their local bishop.29 As we shall discover, monastic confinement played a role in bishops’ management of their subordinate clergy, their lay communities and their relationships with rival bishops, and Justinian’s public penalty sought to harness bishops’ activities in these areas for the public good. These are some of the arguments of this book. Yet, more importantly, the appearance of monastic confinement in public legal practice was not 26

27 29

The quote is from Garnsey, Humfress (2001) 20, and its significance for our understanding of the period has recently been re-emphasised by Uhalde (2007) 7. For this development see Diem (2005). 28 Millar (1984); Cooper (2011) 328–329. Frazee (1982) 263–279.

8

Introduction

purely pragmatic, but also responded to late antique ideas of what punishment was for. This is not dissimilar to the appearance of other punitive spaces, such as mines, which, as Millar has argued, fitted into an imperial mindset on the retributive and deterrent humiliation and removal of the criminal body.30 Availability of spaces may have driven certain types of penalties, but spaces were also chosen in accordance with certain ideologies. As I shall argue in the course of this book, some crimes and some criminals were seen, during late antiquity, as in need of honourable treatment, but also of more repressive methods of surveillance and custody, which partly explains the rise of monastic confinement. Crucially, however, all monastic confinement engaged with the emerging Christian ideas and practices of penance, whose study has had a renaissance in recent scholarship. As a result, our understanding of penance has been transformed. Earlier historians saw the imposition of penance in early Christianity as a rigorist once-in-a-lifetime chance to regain the favour of God, inflicted by authoritarian church leaders on a largely and increasingly unwilling laity, and hence only realised in contexts where church leaders were able to assert judicial control.31 Yet, over the last twenty years a new scholarly perspective on penance has developed. Owing to the work of Peter Brown, historians now see a vision of the afterlife at play in the fifth and sixth centuries that combined apocalyptic anxiety with uncertainty over forgiveness on the day of final judgement. This vision gave rise to a wide social consensus that what was needed in this life was visible conversion to a Christian lifestyle centred on continuous atonement with the potential to mitigate God’s judgement.32 In consequence, to show oneself as penitent and hence ‘truly’ Christian enabled an individual not only to glimpse the prospect of salvation, but also to ‘earn dignity back’ in this life.33 The latter was a crucial desideratum in a society like that of the late Roman empire, where social hierarchies were traditionally constructed by cultural views on individuals’ ability to hold and defend honour and reputation, and where criminal conviction seriously impacted on this

30 31

32

33

Millar (1984) 144–145. The classic studies of Christian penance developing this model are Poschmann (1928); Vogel (1956), 1–26, 157–186; Vogel (1966). For critique and revision see De Jong (2000) 185–224. Meens (2008) 73–95 gives an excellent overview of traditional and recent debates. For the pervasiveness of penitential discourse in the fifth and sixth centuries see Brown (1997) 1247–1261; Brown (2000) 41–59; Rebillard (1994) 229–232 and passim, and Moreira (2010), who also stresses the rising belief, over late antiquity, that the severity of eternal punishment might be able to be moderated by penitential zeal during lifetime. The quote is from Uhalde (2007) 106.

Introduction

9

ability.34 Penance filled the gap towards social reintegration left by public legal procedure that, as we shall see, had hitherto only been able to be addressed by imperial pardon. In his study of the medieval development of monastic confinement as an ecclesiastical penalty Guy Geltner has argued that the origins of the phenomenon need to be investigated in light of the cultural developments regarding the definitions of penance.35 In a process that Robert Markus has aptly called ‘ascetic invasion’ of late Roman culture, it was real-life monastic communities and images of ascetic lifestyles advocated in saints’ cults and sermons that cemented the Christian pre-eminence of a penitential lifestyle. Markus’ emphasis rested on the west of the Roman and postRoman world, but, as Averil Cameron has shown, ascetic discourse was perhaps even more pervasive in the East, penetrating ecclesiastical and political rhetoric alike during the sixth century.36 Monks and nuns were at the same time seen as distinct from lay people, as something to aspire to, and as specialists of penance, from whose proximity lay sinners were to benefit.37 It is this context that is also important for the beginnings of the public penalty of monastic confinement. To be sure, monastic confinement for the sake of performing penance, if to be pronounced as a public penalty, encapsulated the repressive character that earlier scholars of late antique penance have observed in the practice. Yet, it also shows that late Roman emperors increasingly appreciated the urgent need for penance of their subjects, and their own role in creating an orthodox Christian society within the parameters of imperial paternalism described above.

Prison, imprisonment, confinement and reform: concepts and definitions This book brings together late antique concepts of confinement with late antique concepts of ‘reform’. Neither of these is straightforward and it will be useful for the reader to know how I understand certain terms employed in this book and how they underpin my analysis. I use the term ‘prison’ with reference to the institution of the public prison or a building that had the sole purpose of detaining people. I also

34

35 37

On Roman society as honour-based see the immensely influential work by Lendon (1997), in particular Chapter 2. For the continuing importance of honour in the definition of late Roman social relationships and the connection between honour and criminal conviction see Bond (2014). Geltner (2008a) 89–108. 36 Markus (1990) 197; Cameron (1995) 147–161. Rapp (2007) 121–148.

10

Introduction

translate the terms carcer or δεσμωτήριον as ‘prison’.38 In addition, I apply the term ‘imprisonment’, or at times ‘incarceration’ or ‘carceration’, to situations beyond the context of public criminal procedure, where individuals were faced, either legally or illegally, with conditions that resembled that of the public prison (detention in a confined space, with guards who embody the subversion of customary social hierarchy, and sometimes in darkness or underground). At times the parallel was made explicit by the individuals themselves, or those observing the practice, who used terms such as carcer or δεσμωτήριον to describe incidents of extra-judicial imprisonment, but also the somewhat broader expressions custodia (which, however, could also be used to describe public imprisonment), ϕυλακή or εἰρκτή (and derivatives). Such imprisonment, sometimes called ‘private’ in the contemporary sources, bears, where it was unlawful, some resemblance to what we would call ‘false imprisonment’ today.39 Finally I employ the term ‘confinement’ both in a larger sense, to encompass the variety of custody prevalent in the late antique world, but also to describe situations that were distinct from the public prison and other more formal types of imprisonment, but nonetheless included a certain degree of spatial constraint and exclusion from spaces that other individuals had access to. Another phrase I use in this context is ‘seclusion’. As has already become apparent above, forced residence in a monastery is usually called ‘monastic confinement’ in this book, even though earlier scholars have at times called it ‘prison’ (or the corresponding term in other modern languages).40 The term ‘prison’ is, however, problematic, because a specific institution that historians call ‘prison’ existed in the late Roman world and it also exists in modern society. As Mayke de Jong has warned with reference to the early medieval evidence, applying the label ‘prison’ to forced residence in a monastery would raise flawed associations with one or both of these institutions.41 Furthermore, it would risk not sufficiently distinguishing between the ancient and the modern prison. While the official function of the late Roman public prison was, as Mommsen has shown, that of preventive custody, the modern prison (as opposed to detention facilities) is a comprehensive penal institution. To understand its historical genesis, it is worth returning to the work of twentieth-century sociologists. Most influential, particularly on the historical profession, in this respect have been Émile Durkheim and Michel 38

39 41

Sometimes I have also seen it as appropriate to translate the terms vincula and δεσμοί as ‘prison’; for discussion see further Chapters 5 and 6. 40 Ley (2001). See e.g. Guillou (1983) 79–86; Wood (1994) 195. De Jong (2001) 292–293.

Introduction

11

Foucault, who both concluded that the prison penalty was an invention of the early nineteenth century, even though they interpreted its appearance differently.42 Durkheim, who as an ancient historian by training was familiar with Mommsen’s work, saw the rise of the prison sentence and the emerging critique of the death penalty as a largely positive change from a homogeneous collective conscience inspired by sacred norms to a pluralistic system of social values that could also afford to tolerate wrongdoing and be more lenient.43 Foucault, on the other hand, argued that the crucial element of the modern prison penalty was not leniency, but the connection of confinement and discipline, which could be as repressive as pre-modern penalties, albeit in a more subtle way.44 This connection reflected the rise of the modern state characterised by the absence of specific, personally located power. In the modern state, punishment serves not to visibly and ritually, yet irregularly assert political authority, but to foster comprehensive social conformity. Punishment in the form of the prison penalty is therefore less visible to outsiders, but all-encompassing to the individual. It aims to catalogue and train the individual to become socially useful. Imprisonment is hence accompanied by repetitive activities and exercises that thoroughly regulate time and space, to submit not only the body, but also, crucially, the ‘soul’ of inmates, to make individual identity readable. Late Roman monastic confinement was a penal institution endorsed by legal norms and in that respect it was very different from the ancient prison, whose punitive qualities were at most, as Lovato has argued, recognised in legal practice. In fact, as I have already mentioned above, in legal texts monastic confinement was represented as a form of exile, not as prison. Yet, it cannot be stressed enough that as a legal form of the penalty of exile it was innovative, as the penalty was connected to a form of confinement and also envisaged for, and, as we shall see at times also imposed on, a socially diverse set of offenders. In that respect monastic confinement is not dissimilar to the modern prison penalty, and some observers of the phenomenon have indeed pointed at the leniency inherent in the measure, particularly where they discussed the introduction of the penalty for adulterous women and its substitution for the death penalty

42 43 44

Durkheim (1899–1900) 65–95; Foucault (1975). See for Durkheim’s engagement with Mommsen’s work Nandan (1980) 378–379. Discipline is understood by Foucault as systematic training to shape a particular set of behaviour or knowledge by regulating time, space and actions. Such training can encompass a whole spectrum of methods, from verbal instruction to physical punishment.

12

Introduction

under Justinian.45 Furthermore, the penalty was also connected to a notion of ‘reform’ or ‘improvement’ or even ‘social reintegration’, and can, in a Foucauldian spirit, be interpreted as aiming at a thorough transformation of the criminal’s behaviour and thought away from the public gaze. Yet, this analogy does not hold throughout. To begin with, late antique definitions of ‘reform’ did not match entirely with modern ideas of ‘social rehabilitation’ or ‘change of social conduct’, a point to which we shall return below. Furthermore, this book of course accepts that modern states have been able to develop systematic and anonymous forms of punishment capable of shaping social behaviour which were unknown in the premodern world. In late antiquity the connection between punishment, reform and spatial confinement was not universally justified, but, due to the reactive nature of Roman government, only prescribed for a small group of crimes and criminals. Perhaps more crucially, it also did not lead to purpose-built and state-run institutions to accommodate such penal strategies, which made expectations of surveillance, restraint and discipline precarious. Nonetheless the penalty deserves a place in the history of the prison in Europe, all the more so, as it was not considered by either Durkheim or Foucault, who almost exclusively juxtaposed the modern prison penalty with painful and potentially lethal spectacles of bodily punishment in the pre-modern world, such as public flogging, maiming, penal parading and executions. What I propose in this book from a theoretical point of view, then, is to investigate the distinction between penal confinement and more spectacular forms of punishment not as a chronological shift of norms, but as an expression of practical choices in a complex penal landscape that offered both forms. In addition, these practical choices had the power to transform the penal landscape itself.46 In fact, while monastic confinement was distinct from the ancient ‘prison’, its relationship with late Roman concepts and practices of ‘imprisonment’ demands further investigation. Even though monastic confinement was represented as a form of exile in legal literature, and in practice it may have been at times difficult or even undesirable to police the aspect of ‘confinement’, it remains the case that, as a legal norm, it imposed a form 45

46

Goria (1974) 55–76; Noethlichs (1994) 18–40. Justinian’s interest in the legal status of women has often been noted by his biographers as one of the most striking features of his legislation, see Browning (1971) 61; Moorhead (1994) 36–38; Evans (1996) 209–210. This approach draws on Pierre Bourdieu’s theory of practice (Bourdieu (1977), in particular 3–71) as applied to the ancient world by Allen (2000) 17 with fn. 7 and passim; Turner, K. (2009) 53; and on Giddens (1984), which argues that social institutions such as law change through the way they are used by individuals.

Introduction

13

of custody and spatial constraint on offenders, some of whom had hitherto been, by law or cultural norms, considered exempt from such measures. This book maintains that this change can only be illuminated by exploring the variety of practices of ‘confinement’ in the late Roman world beyond the narrow focus of the public ‘prison’, in households, local communities, churches and monasteries, and by establishing which forms of judicial or extra-judicial confinement were considered lawful (and for whom), socially useful (and in what context) or culturally acceptable, and how monastic confinement engaged with these traditions. The evidence suggests to some extent that the distinction between lawful and unlawful confinement, both in private and public contexts, responded to notions of class, gender and age. As we shall see, for some of those on whom monastic confinement was imposed, particularly where it concerned domestic wrongdoing, experiences of segregation, seclusion or even imprisonment were not unfamiliar and largely accepted. Yet, in other cases, particularly where it concerned adult elite men, whose identity was cemented by notions of liberty and honour, it was considered more controversial. In fact, some contemporary subjects and commentators of monastic confinement made explicit links between monastic confinement and unlawful imprisonment, which in itself suggests that the phenomenon cannot be detached from the history of imprisonment.47 It is important, however, that late antique attitudes to confinement, and ultimately monastic confinement, are seen in the context of early Christian concepts of ‘imprisonment’. Building on the work by Guy Geltner, this book will show that some late antique Christians gave the experience of ‘imprisonment’ an unusually positive reading and connected it to the expectations of conversion, penance, asceticism and Christian virtue described above.48 It can be argued that, as a comprehensive legal penalty, exile to monastic confinement was only possible due to these connections. Yet, the connection made between monastic confinement and penance raises questions about the principles underlying the penalty. As I have alluded to above, this book argues that its main aim, at least on a theoretical level, was the ‘reform’ of the offender, although I do not exclude more pragmatic motivations, such as the preservation of an offender’s or their family’s honour, the provision of material maintenance, or ‘neutralisation’, by which I mean the protection of the common good and social security 47 48

See below Chapter 10. Geltner (2008b) 83–86. I am much indebted to Geltner’s work, although I will show in Chapter 8 that, for the late antique period, the martyr’s prison was perhaps less defining for the Christian understanding of imprisonment than he and others have argued.

14

Introduction

through segregating or isolating troublesome offenders.49 Throughout the course of this book I use the term ‘reform’ whenever punishment was justified as ‘educating’ the offender. However, the outcome of such education, and the methods to ensure the desired outcome, were not always considered in a similar way, even where the same terminology for the act of ‘educative’ punishing was used (most notably Lt. emendatio and Gk. σωϕρονισμόϛ). A particular distinction needs to be drawn between justifications of ‘reformative’ punishment as ensuring ‘moral or spiritual improvement’, as opposed to ‘social training’. Much of this book is concerned with an analysis of how ‘reform’ was defined in particular historical instances and cultural contexts, and of potential change from one of these justifications for ‘reformative’ punishment to another. However, it would be unwise to apply too rigid distinctions informed by a modern perspective on punishment and modern definitions of punitive categories and methods to the late antique world. To begin with, it can be argued that in all ages, even where a spiritual or intellectual dimension of reformative punishment is postulated, it is only change of social conduct that can reasonably be measured.50 As a consequence, penitential confinement in a monastery was, in essence, a social tool, even where the emphasis on its spiritual side was at times genuine and not just meant to mask, as certainly also happened, more ‘worldly’ aims of neutralising or humiliating offenders. As a social tool it could have social consequences. Offenders were to gain spiritually from being forced to reside in an ascetic environment, to redraw their relationship with God, but, as a visible change of behaviour, in some instances penance also became seen as a basis for social re-integration, also for those who had been hitherto seen as undeserving of such treatment. Beyond such practical predicaments of assessing moral progress, we need to take into account fundamental differences in educative methods between historical periods. Modern discussions of punishment distinguish sharply between ‘reform’ and ‘deterrence’ as justifications of ‘educative’ punishment. While both are what have been called ‘utilitarian’ justifications, 49

50

See De Jong (2001) who, with reference to evidence from the Merovingian and Carolingian contexts, argued that one aim of the measure was to give an offender opportunity to ‘opt out’, by offering protection from a more violent fate outside a monastery’s walls, due the recognised holiness and the increasing immunity of monastic space. Given that the early medieval evidence mostly concerns high-elite political opponents to contemporary rulers, these conclusions cannot be translated fully to the more diverse forms of monastic confinement in the fifth- and sixth-century Roman empire. See Dunbabin (2002) 157, who makes the same observation with respect to the use of punitive imprisonment during the later medieval inquisition.

Introduction

15

foregrounding consequences of punishment, rather than a pure focus on ‘just deserts’, ‘reformative punishment’ is seen to instil a deeper understanding of wrongfulness, while ‘deterrence’ is seen as only being able to bring about a mechanical change of behaviour. Modern educational theorists have therefore suggested to adjust punitive methods accordingly, with, for example, work assignments being considered a more efficient way to bring about ‘reform’ than corporal punishment.51 Yet, as we shall see, the threat or the imposition of humiliating or even painful experiences were credited with a far higher educative value in the socially more hierarchical ancient world than they are in some more egalitarian contemporary societies, where we might label such methods ‘coercive’ rather than ‘educative’.52 While monastic confinement to some extent put an emphasis on the ordering of time and space to ensure self-reflection, we should not exclude that it was the humiliation that came with spatial restraint and the degradation that came with insertion into the decidedly different inner-monastic social hierarchy which was meant to have the most educative effect of the penalty.

Sources and structure This book draws on a large variety of sources, but its core is formed by late Roman legal texts. As these present a complex source base it is worth commenting briefly on their nature, benefits and limits, as well as the methodology I adopted to overcome these limits, which underpins the structure of this book. Over the last two decades the production and usage of late Roman law has received much attention by social and cultural historians of late antiquity (rather than purely legal historians). This is particularly true for the motivations and processes underlying the codification of imperial constitutions (imperial edicts or letters to officials) issued between Constantine and Theodosius II, known as the Theodosian Code (438), and the other great legal codification work of the late Roman world under Justinian, now known as the Corpus Iuris Civilis and completed in 534. In contrast to the Theodosian Code, the Corpus also included a juridical textbook (the Institutes), a collection of passages from the work of early imperial jurists (the Digest), alongside a collection of imperial rescripts (imperial letters to private individuals) and constitutions issued since the mid-second century up to the time of Justinian, of which an earlier edition 51

52

For the term ‘utilitarian’ punishment and the distinction between ‘deterrence’ and ‘reform’ see Peters (1966) 267–268. Mackenzie (1981) 39 and see further Chapter 1.

16

Introduction

had already been published in 529 (the Code of Justinian).53 While Justinian explicitly ordered altering and rewriting early imperial jurists’ commentary included in the Digest, such interference with their writing was probably less extensive than has previously been thought.54 Late Roman laws also circulated outside these official codifications. For the purpose of this book particular mention should be made of Justinian’s so-called Novels, roughly 150 constitutions that the emperor issued after the completion of the Corpus. Even though Justinian had planned an official collection of these laws, this was never accomplished, and the Novels were distributed either individually or in unofficial compilations, such as, in the West, in the socalled Epitome Iuliani and the Authenticum.55 In late Roman imperial law we come close to something that can be described as reasonably comprehensive legal theory, and specifically in the context of criminal law, as penology. While for the early imperial period punitive concepts mostly need to be pieced together from types of penalties prescribed, late Roman laws, by contrast, were often very outspoken about the justifications of punishment.56 This is not to say that such penal theory did not exist in an earlier period. The gap in our record may be partly due to the fact that the majority of extant early imperial legal texts only survive in a truncated form transmitted through late antique channels. Yet, the particular genre of late imperial constitutions also furthered the formulation of philosophies of rulership that, as we shall see, in classical antiquity had been expressed in different formats and genres. The letter of the law (the form of which was, quite literally, usually a letter to a magistrate, although destined for public reading or posting57) was understood as a possibility to communicate universal motivations of imperial government to the wider empire.58 This required substantial drafting work by trained language specialists, headed by the imperial chancellor, the quaestor, whose importance grew over the late antique period.59 Where we have laws in the 53

54

55

56

57 58

On the Theodosian Code see in particular Harries, Wood (1993); Matthews (2000). Justinian’s codification project is extensively discussed in all the biographical works mentioned above in n. 21 (e.g. Leppin (2011) 167–170), but the most comprehensive study is still in Honoré (1978). Const. Deo auctore 8 (530; CIC i/Digest:8–9); see Humfress (2005) 162; Pazdernik (2005) 199. On socalled Justinianic ‘interpolations’ see Johnston (1989) 149–166, who is able to demonstrate that many alterations to jurists’ writing had already been made at various stages before the time of Justinian. For the collections of Justinian’s Novels see Kroll (1912) v–xviii. For Justinian as a legislator see in particular Archi (1970); Krumpholz (1992). On the lack of legal theory in juristic writing of the earlier imperial period see Millar (2002) 69–88. A fundamental example for the method of inferring Roman punitive concepts from types of penalties is Garnsey (1970). On legal philosophy in the early empire see also below Chapter 2. Millar (2006) 7–13. On the posting of imperial constitutions see Matthews (2000) 168–169. See also further below Chapter 4. 59 See Harries (1988) 148–172; Honoré (1998).

Introduction

17

form of a more coherent rhetorical narrative, as in the case of Justinian’s Novel, we are also presented with a personal involvement of the emperor in deciding on the detail and even the drafting of laws.60 Justinian’s level of engagement and micro-management was certainly unique, and the rhetoric of his laws reflects a peculiarly sixth-century Christianity. Still, his Novels provide a window into the customary loquacious nature of late Roman imperial constitutions and their aspiration to articulate the presence of the emperor. This also becomes apparent in a number of fourthand early fifth-century constitutions that circulated independently and in full length, the so-called Sirmondian Constitutions.61 It was in particular the preamble of constitutions, usually removed by the editors of the Theodosian Code and the Code of Justinian, that was seen as the most opportune place to transmit justifications of a universal nature for the ordering of specific cases.62 Yet, the language employed in late Roman constitutions on the whole was subject to the purpose of publicising the parameters of imperial rule, and therefore usually held in a ceremonial and extravagant tone that reveals much about basic principles.63 Building on these approaches, the first part of this book (Chapters 1–4) traces the development of punishment as ‘reform’ in Roman legal thought. At the centre of my analysis are the terms emendatio and, to a lesser extent, its Greek equivalent σωϕρονισμόϛ (and derivatives), which appear in discourses on domestic discipline, and, by extension, on good rulership in the early empire, that utilised Platonic terminology, even though, as we shall see, not necessarily Platonic thought. From the mid-fourth century on these terms started to be used widely in legal texts on public punishment. Their frequency (and the frequency of laws employing these terms deemed worthy for inclusion in the legal codifications of 438 and 534) is high enough to warrant the assumption that they expressed a legal principle that transcended the individual outlook of single drafters of laws, even though the meaning of the concept clearly changed from the early empire

60

61

62

63

Leppin (2011) 173; see also Honoré (1975) 107–123 for a meticulous philological method to detect Justinian’s interventions. On the Sirmondian Constitutions see Matthews (2000) 121–167. This was an unofficial collection of sixteen imperial constitutions. Ten of these are also preserved in the Theodosian Code, but in a more abbreviated format. They are sometimes believed to be early medieval forgeries, but see Huck (2003) 181–196. For Justinian’s preambles see Hunger (1964); Humfress (2005) 174. On the work of the respective editorial commissions see Honoré (1978) 212–222 (on the Code of Justinian); Matthews (2000) 55–57, 65–71 (on the Theodosian Code). On the language of late Roman law see Harries (1999) 137 and below Chapter 4.

18

Introduction

and also over the course of late antiquity.64 The method employed allows me to show that drafters of late Roman law drew on several traditions from both the classical and the Christian past, when they described punishment as ‘reform’. It should be noted, however, that the main case studies of my analysis – the works of Cicero, Seneca, Aulus Gellius and Cassius Dio; the works of the Roman jurists as preserved in the Digest; Augustine’s writing on the case of the Donatists in early fifth-century North Africa; and late Roman constitutions – have largely been chosen on the basis of my lexicological approach. They therefore only present the ‘tip of an iceberg’. The responsibility of the emperor to educate and improve his subjects was expressed in a myriad of other texts that have not been taken into consideration, for example in the panegyrics of the fourth-century philosopher and orator Themistius.65 Furthermore, the texts chosen did not necessarily depend on each other, or at least it is impossible for us to reconstruct dependency. It is very clear, for example, where the perspectives of Augustine of Hippo and, a century later, of the emperor Justinian are concerned, that the latter was not influenced by the former. Yet, reconstructing dependency would be beside the point, as the focus of these chapters is on general semantic trends and their employment to articulate purposes of imperial law. The second part of this book (Chapters 5–8) surveys functions of confinement in the late Roman world. In these chapters, I largely shift the attention from legal norms to legal practice. The relationship between the two phenomena is a vexing one, for legal norms tell us little about how rules emanating from the imperial centre were interpreted, implemented or enforced by local authorities.66 Furthermore, wrongdoing was also dealt with in other social contexts than the late Roman state, most notably in households or village communities, but also and increasingly in the ecclesiastical and monastic sphere. This included, on a basic level, the legal redress of violation of internal rules of such institutions, in a process of what sociologists have called ‘substandard punishment’.67 Yet, with regard 64

65

66 67

See also Harries (1988) and Washburn (2007) 56, reassessing Honoré’s method of assigning individual constitutions to individual quaestores and their socio-cultural background. I would like to thank Hartmut Leppin for suggesting this term and the following references. See e.g. Themistius, or. 7 and 19 (ed. W. Dindorf (Hildesheim: Georg Olms, 1961) 101–120, 275–284), delivered in praise of two very different emperors and on two very different occasions: to Valens, in 366/7, after the usurpation of Procopius and aiming to invoke the emperor’s clemency towards Procopius’ supporters in Constantinople; and to Theodosius, in 384–386, delivered in the senate of Constantinople and providing a stock image of imperial virtues. See also Pazdernik (2005) 195. See Washburn (2012) 12–13 for an excellent analysis of this problem in the context of legal exile. Hart (1968, reprint 1995) 4–5; see Zaibert (2006) 25. Institution in this instance is understood as a norm– or custom-governed social system that seeks to shape the behaviour of its elements or

Introduction

19

to a criminal system which mostly relied on the initiative of members of the public to bring issues to court we have to take also into account that some behaviour deemed ‘criminal’ by the late Roman state, in the sense that it could potentially justify public criminal procedure, was instead addressed within these institutions.68 For the purpose of these chapters, I have therefore expanded the source base to include what I would call, broadly, ‘circumstantial’ literature. I have submitted these sources to a number of investigative methods, most notably a combination of, where feasible, quantitative and spatial analysis, to extract patterns of behaviour and the dynamics of space inherent in confinement,69 and literary analysis, to establish how the memory of such behaviour and dynamics was subsequently manipulated for ulterior arguments, which also included establishing the social and cultural value of imprisonment. These ‘circumstantial’ sources consist of letters, sermons, treatises, papyri, hagiography and narrative sources which give us an understanding, even though sometimes quite indirectly, of the applicability of imperial laws, and a glimpse into ‘non-official’ coercive or punitive practices, by public, domestic, ecclesiastical or monastic authorities, beyond those enshrined or even allowed by the law. These practices frequently included forms of confinement. Whether these were legal, illegal, or neither, they often fulfilled the functions of ‘reform’ or neutralisation that imperial rhetoric also called for in the case of public crime, but for the realisation of which imperial penal administration did not provide the appropriate infrastructure. The second part of this book ends with an investigation of the distinctively Christian discourse about what went on in prisons. Some of those who underwent periods of coercive or punitive confinement, particularly in the context of the religious conflicts of the late antique period, have left us detailed accounts. Such accounts offer an invaluable insight not only into actual experiences and varied places of late Roman confinement, ranging from public prisons, to house arrest, to military compounds, but also, more importantly, into their literary representations. These representations helped to define the roles that both the memory of the Christian martyrs’

68

69

members. For the Roman imperial system legitimising various institutions such as collegia and the Christian church to develop their own disciplinary rules see also Bryen (2013) 141–142. See Krause (2004) 60–67, 80–86, who stresses the role of ‘self-help’ and ‘extra-judicial’ settlement in the Roman world; for the importance of considering legal pluralism in the late Roman world see also Humfress (2005); Humfress (2007); Humfress (2009) 377–391; Humfress (2013) 73–101; and see further below Chapters 3, 5, 6 and 9. Here I follow the assumption of Bourdieu (1977) 87–78, that social systems are reflected in the construction and use of space, which has been successfully adapted to the Roman world by e.g. Keegan (2013) 70.

20

Introduction

prisons and concepts of late antique prisons played in the fashioning of Christian leadership, charity, asceticism and penance. The last two chapters (Chapters 9 and 10) examine the process of incorporation of monastic space into the administration of ecclesiastical justice on the one hand, and public justice on the other over the fifth and the sixth centuries, up to the point of the eventual promulgation of monastic confinement as a public penalty. A particular emphasis in these chapters rests on the customarily reactive nature of late Roman law. Here the book’s approach to late Roman legal sources comes full circle. While they adopted top-down rhetoric that aimed at portraying a stable image of imperial rule, most of the constitutions issued by late Roman emperors responded to cases brought to their attention by advisers, subjects, or most often by imperial officials, which were then interpreted in light of the political necessities of the moment.70 Starting from these premises, I investigate how the penalty of monastic confinement engaged with the variety of confinement practices that I have described in preceding chapters on the one hand, and with the growing use of monastic confinement in episcopal jurisdiction on the other. At the same time I illuminate how the penalty was connected to the more overarching ideas of justice and of penance discussed in the first part of the book. A final emphasis of these chapters is on the experience of those submitted to monastic confinement, issues of enforcement and, ultimately, how observers related monastic confinement to imprisonment and the public prison. Perhaps the broadest conclusion we can draw from this study is that late Roman concepts of justice at both public and private levels of society engendered the need for punitive and educative confinement, and confinement in a monastery was the most comprehensive and least controversial method to address this need. It was in tune both with social practices and with penal discourses that engaged with new Christian principles of punishment and reached back to those of classical antiquity. Whether it was also a ‘prison’ may remain open to debate.

A note on terminology For the sake of simplicity, throughout the book I will usually refer to offenders or victims as male, unless an individual case in question concerned a woman. I use the term monastery to refer to both male and female ascetic communities, although I add the term ‘coenobitic’ wherever I refer 70

Harries (1999) 47–53; Humfress (2005) 174; Humfress (2007) 105–106.

Introduction

21

to stable, co-habiting communities. Practices and norms pertaining to the late Roman state are labelled as ‘public’, to distinguish them from ‘ecclesiastical’, ‘domestic’ and other non-state supported or endorsed contexts. For a further definition on how I understand ‘public’ and ‘private’ in the late Roman empire see the beginning of Chapter 6. I have avoided the term ‘secular’, as it does not give justice to the religious dimension of late Roman imperial authority. Although Roman legal terminology usually referred to all state law as ‘civil’ I have kept the modern distinction between criminal and civil law (the latter dealing with non-criminal disputes, e.g. property disputes). I refer to offences as crimes were they led or were understood to lead to a charge at a public or ecclesiastical court, following the Roman understanding of crimen as criminal procedure rather than the act of wrongdoing.

part i

Punishment, reform and penance

chapter 1

Philosophical and domestic foundations

It should be far from a Christian heart to be rushed to punish anyone (ad poenam cuiusque) out of lust for revenge (ulciscendi). It should also be far from it not to anticipate, while forgiving sin, the begging of the suppliant, and not to grant forgiveness immediately. Likewise, it should be far from his heart to hate a man, to return evil with evil, to burn with desire to harm, to desire being fed by revenge (vindicta) even if demanded by law. It should not be far from his heart, however, to reflect (consulat), to discern (prospiciat), and to restrain from evil (compescat a malis). It can in fact happen that someone, because he is so vehemently hostile, neglects the education (emendationem) of a man who he hates intensely, while another, repressing (coercendo) him through some vexation, improves (reddat meliorem) him who he loves deeply.1

These are the words of Augustine, bishop of Hippo, written to the lay and possibly pagan aristocrat Nectarius of the town of Calama in Numidia in March 409. In June of the previous year, Calama had been the scene of violent riots against its Christian bishop Possidius, who had tried to impede a pagan procession in front of his basilica. During the events several people had died. After his complaints with the local authorities in Calama had failed to meet with any success, Possidius, together with four other African bishops, took his case to emperor Honorius in Ravenna. As a consequence, in January 409 Honorius had issued a harsh law that sought to punish violence against bishops with a capital sentence.2 In the 1

2

Augustine, ep. 104.8 (CSEL 34: 587–588): absit enim a corde christiano, ut libidine ulciscendi ad poenam cuiusque rapiatur. Absit ut in dimittendo cuique peccatum, aut non praeveniat preces rogantis, aut certe continuo subsequatur: sed hoc utique ne oderit hominem, ne malum pro malo retribuat, ne nocendi inflammetur ardore, ne vindicta etiam lege debita pasci desideret; non autem ne consulat, ne prospiciat, ne compescat a malis. Fieri enim potest ut vehementius adversando, emendationem quisque neglegat hominis quem gravius odit, et nonnulla molestia reddat coercendo meliorem, quem maxime diligit. I follow here the excellent account of the riots in Calama, and the calendar of events, in Hermanowicz (2004) 481–521. Honorius’ law in question is CTh 16.5.46 = Sirm. 14. On the Calama riots see now also Shaw (2011) 251–259, who argues that Nectarius was a pagan.

25

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Punishment, reform and penance

meantime, Augustine had been corresponding with Nectarius, an old acquaintance of his, who had pleaded for mercy for the rioters, first with Possidius, and, when this had come to nothing, with Augustine as Possidius’ senior colleague. In August 408 Nectarius had asked that the rioters, who were likely to have included some of the town elite, should be spared corporal punishment.3 He renewed this request in a letter from March 409, with more urgency and adding a plea against the loss of property, to which the above quoted letter by Augustine is the response. Arguing that all sins, even the gravest, were equal and could hence all benefit from forgiveness, he begged Augustine to consider winning praise through forgiveness rather than vengeance.4 Most probably, Nectarius’ letter was born out of fear of the implementation of Honorius’ recent law.5 Augustine replied to Nectarius’ letter with the reassurance that he was neither seeking corporal punishment of the rioters nor, indeed, that they be reduced to utter destitution (ep. 104.1, 4). Yet, he rejected the request for exemption from punishment. He argued that, while Christian-inspired punishment was by nature more merciful than conventional punishment (ep. 104.6), punishment there had to be – for punishment, if not exercised purely with a desire for revenge and if following careful reflection on the situation at hand, had a salutary function. Its aim, then, was to educate and improve the offender. Forgiveness, on the other hand, if granted without discernment and by default, was not automatically a sign of love and could even be considered cruel, where it did not have the interest of the offender at heart. To make this most crucial point, Augustine employed an example drawn from a household context: If as little or even as bigger children we had received indulgence from our parents or teachers every time we asked for it when we had sinned, who of us would have grown up to be patient? Who would have learned anything useful?6

For Augustine, parents and teachers served as the model of the good punisher, for naturally they sought to educate and turn a child into a better person, as such not routinely giving in to the child’s desires. In the same

3 4 5 6

Augustine, epp. 90–91 (CC 31A:153–159). Augustine, ep. 103.4 (CC 31B:36): et ignoscendo potius laudem, quam vindicando conquiras. Hermanowicz (2004) 510. Augustine, ep. 104.7 (CSEL 34: 586–587): si quoties parvuli, vel etiam grandiusculi veniam peccantes deprecati sumus, toties a parentibus vel magistris accepissemus, quis nostrum tolerandus crevisset? quis aliquid utile didicisset?

Philosophical and domestic foundations

27

way, the punishment of the rioters at Calama, moderate as it may be, should be intended for their benefit. Augustine’s theories of punishment as expressed in this correspondence with Nectarius of course need to be interpreted in their geopolitical situation created by Possidius’ embassy to the emperor, which had triggered the prospect of harsh punishment. For instance, there is reason to believe that Augustine did, at some point, prefer a harsher approach towards the rioters, but became increasingly worried by the unfavourable impact that imperial suppression could have had on the local situation in North Africa.7 Still, without having to maintain that Augustine was in any way representative of contemporary discourses on punishment – his view that forgiveness could be cruel was strikingly different from the Christian tradition8 – the connections Augustine drew between public punishment, domestic punishment and education were hardly new in late antiquity. Augustine chose to elaborate on them precisely because he knew how persuasive this line of argument was with a member of the cultured elite such as Nectarius, who had equally tried to evoke Augustine’s patronage by appealing to common Roman values, such as love for one’s home town.9 Just as the latter, the concept of educative punishment, in Latin emendatio (as we shall see below Augustine’s choice of terminology is important) transcended the boundaries between pagans and Christians. It is the purpose of the following chapters to trace the history of this concept in Roman legal thought. The connection made between education and punishment in the Roman world reached back to a non-Roman and even non-historical setting, the punitive system the Greek philosopher Plato (428–347 bc) envisaged for his imaginary city, Magnesia. While Plato himself also did not invent the connection, he gave it its most sophisticated framework. Although it was, as we shall see, not fully endorsed by those who came after him, particularly in the Latin-speaking world, it gave those seeking to explain and justify public punishment a conceptual and terminological, nearly formulaic, toolbox to work with, which had a remarkable longevity, even into Christian times. Platonic ideas about the the nature of law were so utterly mainstream, common-place and, in Jill Harries’ words ‘subphilosophical’, that they influenced the work and above all words of panegyrists, jurists and drafters of imperial law over centuries of Roman rule.10 The same applies to his views on the purpose of punishment. We will therefore begin with an analysis of Plato’s penology and then turn to its 7 10

Hermanowicz (2004) 510–511. Harries (2011) 353.

8

De Bruyn (1999) 270.

9

Shaw (2011) 252.

28

Punishment, reform and penance

reception by classical Roman writers. As we shall see, Plato’s thought was particularly employed to justify the Roman distinction between ‘educative’ punishment for the young, ignorant (also due to social rank) or ‘accidental’ offenders within the Roman household on the one hand, and harsh punishment for the serious, adult criminal in the public realm on the other.

Plato’s penology Athenians of the fourth century bc were ‘utilitarians’ when it came to punishment.11 They thought of punishment as a way to ensure financial compensation, purification of the community, as well as deterrence of offenders and the wider community to commit crime. Their main concern, however, as arising from literary and forensic evidence, was personal satisfaction or revenge, with institutionally channelled anger (ὀργή) being a widely recognised value. Common penalties, which had a strong emphasis on the infliction of pain or shame (stoning to death, corporal punishment) reflected this nature of Athenian justice.12 Plato’s penology was a response to such popular contemporary Athenian beliefs and practices of criminal justice.13 Yet, with his penology Plato also addressed, more positively, a second set of popular beliefs, in the power of education to teach children virtue (paideia). In his Protagoras (c. 388 bc), which chronicled a fictional dialogue between the sophist Protagoras and Sokrates on the possibility that virtue could be taught, Protagoras gave a speech on exactly this topic of child-rearing: As soon as one of [the children] grasps what is said to him, the nurse, the mother, the tutor, and the father himself strive hard that the child may excel and as each act and word occurs they teach and point out to him (διδάσκοντεϛ καὶ ἐνδεικνύμενοι) that this is just, and that unjust, one thing noble, another base, one holy, one unholy, and that he is to do this, and not to do that. If he readily obeys – so; but if not, they treat him as a bent and twisted piece of wood and put him straight (εὐθύνουσιν) with threats and blows. After this they send them to school and charge the master to take more pains over their children’s good behaviour than over their letters and harp playing.14 11

12 13

14

The following pages have been much inspired by Mackenzie (1981); Saunders (1991); Stalley (1995a); Stalley (1995b) 1–19; Stalley (1996); and, in particular, Allen (2000). Saunders (1991) 120–122; Allen (2000) 246; see also Vlastos (1991). On the political motivations behind Plato’s writing, which are beyond the scope of this book, see Allen (2010). Plato, Protagoras 325a–d (Loeb 142–143).

Philosophical and domestic foundations

29

Childhood, according to Protagoras, consisted nearly exclusively of learning virtuous behaviour, to which other cultural skills were subordinate and constitutive. The threat of punishment and punishment itself were essential parts of this education as they taught correct social behaviour and made children compatible with an accepted social norm and as such useful to society (useful as a straight piece of wood would be to a carpenter). There is no reason to believe that this was not a commonly accepted principle in Athenian society, as it was, indeed, in ancient society in general.15 In fact, Protagoras himself tells us so, as he used the example of child-rearing – where surely everyone knew punishment was about education – to argue that this principle also held true for criminal justice, on which he had the following to say: No one punishes a wrong-doer from the mere contemplation or on account of his wrong-doing, unless one takes unreasoning vengeance like a wild beast (ὥσπερ θηρίον ἀλογίστωϛ τιμωρεῖται). But he who undertakes to punish with reason (ὁ δὲ μετὰ λόγου ἐπιχειρῶν κολάζειν) does not avenge (τιμωρεῖται) himself for the past offence, since he cannot make what was done as though it had not come to pass; he looks rather to the future, and aims at preventing that particular person and others who see him punished from doing wrong again . . . This then is the accepted view of all who seek requital in either private or public life.16

Protagoras made the case here that punishment of the criminal was also a tool in the teaching of virtue, both of the criminal himself and the audience watching the punishment. It was justified by future moral conduct of everyone involved, not by the revenge of the victim. He maintained that this forward looking justification of punishment was also an accepted view. It has been debated whether this argument put into Protagoras’ mouth by Plato was his own historical one, or indeed Plato’s, particularly given that the aim of Plato, in this dialogue, was to ridicule Protagoras.17 Protagoras’ claim that everyone believed the purpose of public punishment was not revenge is certainly, in light of the judicial culture in Athens, quite astonishing. However, Protagoras was a philosopher, and not a forensic orator, and therefore would naturally concentrate on broader social benefits of punishment than personal satisfaction. In this context, he was in fact utterly conventional, as he concentrated on the power of deterrence to improve conduct, which, just as everyone knew that it worked for a child, would also work for the criminal and the audience of his 15 17

16 Cribiore (2001) 65–73; Laes (2011) 140–144. Plato, Protagoras 324a–b (Loeb 138). Stalley (1995b) 5 thinks it is Plato’s, Saunders (1991) 133 thinks it isn’t.

30

Punishment, reform and penance

punishment.18 Deterrence, for the sake of education of proper conduct and hence crime prevention, as a tool of social control, was certainly an accepted justification of punishment in Athens, the importance of which may be distorted for us due to the powerful evidence of the hysterical rhetoric in the court speeches.19 There is therefore reason to believe that the speech made by Protagoras served Plato, in the context of the dialogue, to present a number of diffuse, unsophisticated and ill-conceived popular ideas, which contained some true elements, but were in need of considerable refinement. About thirty years later Plato proceeded to refine the claim that punishment could improve, and that this improvement was part of a process of civil education beyond childhood, in the culmination of his lifework, the Laws (c. 347 bc), which detailed the design of the most perfect city humans could realise, the Cretan colony Magnesia.20 In the eyes of people like Protagoras such ‘improvement’ both of naughty children and of criminal adults came only through deterrence and the rather mechanical change of social conduct fear would engender. There was no focus on the change of moral beliefs. This now was Plato’s innovation and he arrived at it by linking his analysis of wrongdoing to his understanding of the human soul. Plato’s fundamental principle was that nobody did wrong because they chose to, but because they suffered from a disordered soul and were as such at a disadvantage.21 This did not mean that criminals were not responsible for their behaviour, for a disordered soul was always the sign of a wrong lifestyle, just as a disease was caused by an unhealthy lifestyle.22 It also did not mean that Plato did not distinguish between intentional and unintentional acts of wrongdoing, which had to be punished differently. Yet all of these acts no matter how serious stemmed from a state of injustice (ἀδικία) in the soul which unbeknown to the offender let him to do wrong.23 The focus of punishment for the sake of improvement should therefore not be on the change of conduct, as Protagoras proposed, but on the change of a state of mind.24 In this context Plato used the language of ‘disease’ (νόσοϛ) for the state of injustice in the soul and ‘healing’ (ἴαμα), ‘surgery’ (ἰατρική), or ‘medication’ (when associated with pain: ϕάρμακον) for its punishment. As the doctor, the judge had to diagnose the criminal’s state of mind and prescribe 18 21

22 23

Saunders (1991) 135–136. 19 Hunter (2002) 182–185. 20 Stalley (1995b) 13. Plato, Laws 731b–d (Loeb 336); Protagoras 345d (Loeb 204–206). See Saunders (1991) 67–69; Allen (2000) 247–249. Stalley (1996) 359–361, 370. On the solution of this ‘Socratic paradox’ see Saunders (1991) 142. 24 Saunders (1991) 163.

Philosophical and domestic foundations

31

a cure, which could also be painful, and it was to the detriment of the wrongdoer, like the patient, to avoid such treatment for fear of pain.25 Pain should not be the purpose of punishment, but punishment, like medicine, was just a painful method of improving someone.26 In his peculiar view of medicine, Plato advocated that rather than through drugs or surgery physical health was attained through a change towards a routine of healthy actions, which could be initially painful, yet the pain was only to facilitate the change. Likewise, the soul could be improved and its unchangeable divine quality, reason, revealed through a change towards a regimen of good actions, and painful punishment could facilitate this change.27 For example, Plato linked flogging of foreigners and slaves with the opportunity to ‘be chastened into a better life’ (τάχα γὰρ ἂν δοὺϛ ταύτην τὴν δίκην γένοιτ’ἂν βελτίων σωϕρονισθείϛ).28 The ‘cure’ Plato envisaged however consisted not only in the mechanical adoption of a new regimen, but in the strengthening of reason, so it could control the mortal elements of the soul. Therefore, punishment should not just consist in pain and suffering, but had to entail a cognitive element too, as a method to foster virtue. Moral instruction in this sense (as the way to instil harmony in the soul) was a paramount element of punishment, just as it was of childrearing.29 In fact the moral instruction punishment led to was a renewal, as it were, of the education the criminal had or should have received in childhood. In the imagined city of Magnesia, every action of the law-maker was designed to teach the citizens virtue. For this reason, Plato advocated that the law should both instruct and compel those who did wrong (ὁ νόμοϛ αὐτὸν διδάξει καὶ ἀναγκάσει). These were successive acts. The laws themselves, particularly their preambles (προοίμια), should be part of such instruction, detailing the benefits of a virtuous lifestyle in the form of discussion and encouragement (διαλεγόμενοϛ ἅμα καὶ παραμυθούμενοϛ). Plato suggested communal chanting of these preambles to facilitate internalising their instructions. Subsequent punishment was still part of this wider process of the education of virtue or harmony between reason, spirit and appetite, as a more painful method of instruction for those who had resisted verbal persuasion or exhortation. The 25

26 27

28

29

Particularly in Plato, Gorgias 477a–479b (Loeb 362–370); cf. Laws 862b–863a (Loeb 228–230); Republic 409e–410a (Loeb 284–286). Saunders (1991) 167. Plato, Republic 518e, 591b (Loeb 136, 408–410); cf. Saunders (1991) 168–169; Stalley (1996) 360–361, 370. Plato, Laws 862b–863a (Loeb 228–230), 854d (Loeb 202) and see below on terminology; Saunders (1991) 182. Plato, Republic 519a–b (Loeb 136–138); see Lüth (2006) 13.

32

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methods of instruction were therefore of a wide range and included both persuasive (words, pleasures, gifts, honours) and repressive elements (fines, pains and dishonours). It was the duty of the law-giver to find and time the right approach.30 Education, healing and punishment were intertwined with each other. Crucially, however, Plato did not envisage that all criminals would respond to such treatment. In fact, he established two categories of criminals: curable (ἰατόϛ) and incurable (ἀνίατοϛ). Among the latter were those who had committed major crimes (for example, tyranny) and also those where the curative treatment had once failed. In this case, the criminal was to be exiled or put to death to serve as an example (παράδειγμα) for others as well as to clean the community from those who brought damage.31 It becomes clear in this context that Plato also acknowledged the purpose of deterrence and social hygiene of punishment, which ‘allowed for the salvation of many other people’ (ἵνα ἕτεροι πολλοὶ σώ̣ ζωνται).32 It should be noted however that Plato, even in this instance, did not refrain from the moral component of punishment, For no penalty that is legally imposed aims at evil, but it effects, as a rule, one or other of two results: it makes the person who suffers either better or less bad.33

Even if exile and death did not cure, then, at least they halted the moral deterioration, and death also relieved the criminal from his moral flaws. To establish which method of punishment to apply and whether a criminal was curable or incurable, the state of mind of the criminal had to be diagnosed. Here we witness one of Plato’s major innovations: a penalty was to be determined not according to the severity or the circumstances of the transgression, but according to the severity of the criminal soul’s disease, which could consist, for example, of anger, lust, cleverness or ignorance. Plato thought that evidence for this state of mind was provided firstly by the seriousness of the misdeed (e.g. particularly violent, premeditated, directed against public interest, or against someone with social 30

31

32 33

Plato, Laws 862b–863a (Loeb 228–230); see Stalley (1996) 368–369; on the preambles of laws see the law on temple-robbing, Laws 854a–d (Loeb 200–202) and Stalley (1995a) 484; Harries (2011) 355; on deterrence see also: Saunders (1991) 176, 187; Stalley (1995a) 480; Allen (2000) 246. Plato, Laws 862d–863a (Loeb 228–230), 957e–958a (Loeb 529); Gorgias 525b (Loeb 524); on social hygiene: Laws 735e (Loeb 350); cf. Allen (2000) 279. Plato, Laws 728c (Loeb 326). Plato, Laws 854d (Loeb 202): οὐ γὰρ ἐπὶ κακῶ δίκη γίγνεται οὐδεμία γενομένη κατὰ νόμον, δυοῖν δὲ θάτερον ἀπεργάζεται σχεδόν· ἢ γὰρ βελτίονα ἢ μοχθηρότερον ἧττον ἐξηργάσατο τὸν τὴν δίκην παρασχόντα.

Philosophical and domestic foundations

33

authority).34 Yet, indicative of a criminal’s psychic state was also their socio-legal status. The crucial aspect was access to education. Plato thought, for instance, that foreigners, metics (residents without citizenship) and slaves, who had never enjoyed a citizen’s education in childhood, by nature must have a less just state of mind and therefore deserved different penalties than adult citizens.35 This did not mean that their punishment was not meant to have curative potential. Plato certainly considered slaves (just like children) as not rational enough to respond to treatment challenging the intellect and hence the usual penalty for slaves who had committed an offence against public interest was corporal punishment as a means to change their conduct.36 Women, children and adolescents were also believed to be more prone to having a disordered soul in which reason was controlled by the mortal elements.37 For children and adolescents, regardless of gender, of course the first remedy was education (παίδευσιϛ), which helped to overcome ignorance and irrationality.38 While ignorance due to lack of education and hence adverse configuration of the soul in slaves, foreigners, children and women should lead to different penalties than those for male citizens, it was usually male citizens for whom the ultimate penalty, death, was reserved. If a citizen robbed a temple, for example, or stole a piece of public property, he was to be executed as ‘incurable’ while slaves or foreigners could be ‘only’ flogged and deported. The reason for this was that a citizen ‘who has been reared in the way he has to be reared’, after all that education envisaged for the children of Magnesia, ought to know better than committing a crime that subverted public order.39 Plato’s prisons Plato’s penology can best be exemplified by the function he assigned to imprisonment. In Athens, prisons were used as places of torture, custody and detention for those awaiting execution, as well as debtors and those withouth the means to pay fines.40 For Magnesia, Plato also envisaged such 34 35

36

37 38

39 40

Plato, Laws 864d–e (Loeb 236–238). Plato, Laws 880b–d (Loeb 288–290); on Plato’s methods of assessing the ‘psychic state’ of the criminal Saunders (1991) 179, 341–343, 353. Plato, Laws 777b (Loeb 474); Saunders (1991) 345–346. For the parallel with children see Laws 794a (Loeb 20–22). Plato, Republic 431c (Loeb 431). Children and adolescents: Plato, Timaeus 44a–44c (the power of education) (Loeb 96–98); Laws 934a (ligther penalties) (Loeb 456–457). Plato, Laws 854e, 942a (Loeb 202–204, 476). See also Plato, Republic 405a (Loeb 270). Barkan (1936) 338–341; Hunter (1997) 296–326.

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uses, but he extended the purpose of imprisonment considerably.41 The city was going to include three types of prison. The first prison was to be built near the market place and served multiple purposes, although inmates should be held for no more than two years.42 It was supposed to be open to public view and hence contained an element of public shaming. It was above all a place of custody for murderers awaiting trial. Furthermore, it was a place of punishment for slaves and aliens, for example if they had damaged temple property. Such imprisonment could be imposed without court trial. Less conventionally, the city prison was also where convicted criminals who prematurely returned from their exile were to be sent. Finally, it was probably also in this prison where free citizens who showed disrespect of their parents, who had committed assault of a senior relative or who conducted immoral business should be detained. All of these were peculiar innovations regarding Athenian customs, the function of which Plato did not explain much further. However, it seems as though he valued imprisonment for its neutralising function, as in the case of the returning exile, and a fitting punishment for offences committed within the family.43 The term Plato used for this prison, δεσμωτήριον, was the conventional, Athenian word for it, but also the term that Plato himself used elsewhere to describe the soul’s confinement in the human body.44 Plato put more effort into explaining the purpose of the entirely new second and third kinds of prison, which were both linked to the crime of impiety (ἀσέβεια), considered a particularly heinous offence by Plato. Impiety may have consisted in the denial of the Gods’ existence, or of divine charity, or else in practices of magic. Among those committing impiety, Plato distinguished between the foolish offender and the clever, yet more dangerous one, who was mostly looking for financial profit.45 The first class of offender was curable and therefore to be sent to a prison called σωϕρονιστήριον located within the city, where they took part in a reeducation programme for as long as necessary, but a minimum of five 41

42

43 44

45

For debt prison, which was meant to be degrading as it revealed that the offender could not find any friends to bail him out, see Plato, Laws 855b–c (Loeb 204–206). The first type of prison is mentioned in Plato, Laws 864e, 871e–873a, 890c–d, 919e–920a, 932bc, 949c (Loeb 238, 260–264, 316, 410, 452, 500); on Plato’s prisons see Rossetti (1993) 347–369; Hunter (2008) 192–201. Plato, Laws 880b–d (Loeb 288–290). Plato, Phaedo 114b (Loeb 390); Cratylus 400c (Loeb 62). Another term Plato used to describe this phenomenon was ϕρουρά (e.g. Phaedo 62b (Loeb 216)), literally meaning ‘guard’, in the positive sense of the body ‘protecting’ the soul. By later ancient commentators of Plato this was often taken more negatively as a synonym for δεσμωτήριον, see Courcelle (1976) 294–318. Plato, Laws 908b–e (Loeb 378–382); Saunders (1991) 306.

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years, supervised by the members of the Nocturnal Council, the highest authority of the polis in charge of citizens’ moral education. Should they reoffend they were deemed incurable, just as the ‘clever’ magician, who through the severity of his impious acts had already revealed himself as such. The incurables were to be placed in a prison in the countryside, as far removed from civilisation as possible, for life, and without moral education. When they died they were to be denied burial. This prison, to be employed only in extreme cases, was called τιμωρία, a term that recalls the justifications of deterrence and social hygiene en vogue in Athenian society.46 Among the incurables Plato envisaged an additional small group, those who had not only spread impious ideas, but also performed impious rites. Such magicians were to be executed straight away. It is not quite clear why not all incurables were treated in this way, but some imprisoned. Perhaps there was hope that imprisonment of less dangerous incurables arrested their moral deterioration, even if they could not be cured.47 It is only in the context of the σωϕρονιστήριον that Plato ever elaborated on the educative element of punishment itself beyond the mere infliction of pain or discomfort. This is far from surprising, as impiety was a crime with a cognitive aspect, being centred on the diffusion and refutation of ideas.48 The prisoners may have had to wear chains (the penalty was called δεσμόϛ) and be held in isolation with only slaves and foreigners to act as guards, so there was an aspect of humiliation, deterrence as well as of prevention that bad morals spread to other citizens. Yet, such unpleasant experiences helped to draw prisoners’ attention to their misdemeanour and, in addition, they were regularly mingling with virtuous men, the members of the Nocturnal Council who were to provide admonition for the salvation of their souls (ἐπὶ νουθετήσει τε καὶ τῆ̣ τῆϛ ψυχῆϛ σοτηρία̣ ὁμιλοῦντεϛ).49 Plato did not dwell any further on the teaching these were to impart other than a belief, also hinted at elsewhere, that the company of good men would lead to virtue, partly through imitation, partly through self-instruction, certainly through customisation by good deeds.50 He was not very specific on how other penalties, such as exile and flogging, were to bring about the change of a state of mind, rather than just of conduct. 46 49 50

48 Allen (2000) 279, 281. 47 Saunders (1991) 159. Saunders (1991) 158. Saunders (1991) 309. Plato, Laws 728b–c, 854b–c, 904d (Loeb 326, 200–202, 366–368) gives this a metaphysical context, by describing how the soul when it reaches union with divine virtue becomes virtuous throughout and is transported to a ‘holy place’.

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Plato clothed his penology in conventional language, subtly changing its meaning. The most important term here is κολάζειν which originally meant punishment in the public interest, but in Plato came to mean punishment with the purpose of improving a criminal’s character. The noun κόλασιϛ which Plato coined was often, but not always, diametrically opposed to τιμωρία, punishment aimed at personal satisfaction, and the vindictive restoration of honour.51 Such purposes of punishment were not based on δίκη: justice or just judgement, which in Plato’s eyes was the only way to cure injustice.52 However, as is clear from Plato’s term for his third prison category he also subsumed the sometimes legitimate justifications of deterrence and social hygiene through death, imprisonment or expulsion under the term τιμωρία, which could very well punish (κολάζειν) and be just (δίκη).53 These examples show that Plato’s terminology was finely nuanced, but could also easily be misunderstood. Its interpretation had to take account of the fact that in Plato’s penology every action of the judge should be part of an overarching moral system and that exile and death, as we have seen, were only the extreme end of an educational and curative process which, for a citizen, began at birth. Likewise, Plato did not invent the metaphor of disease and cure, but he interpreted it differently. Wrongdoers had been conventionally seen in Athens, as in the ancient world in general, as the bearer of disease, which could spread into the community through the incitement of anger. The focus was therefore on the danger of infection that the wrongdoer presented, which led to the demands for the criminal’s removal or isolation as a form of social hygiene. The penalty, often in form of a spectacle, in this sense was seen as medication to purify community and wrongdoer of infection.54 Plato continued to use the same language, but in his view the cure had to focus on the criminal, rather than the community. The company of good men that Plato proposed for those in the σωϕρονιστήριον, right in the middle of the city, is a striking example of how Plato’s idea of ‘disease’ and ‘healing’, at least for criminals deemed ‘curable’, was diametrically opposed to the idea that wrongdoing had the power of contagion and pollution which demanded the wrongdoer’s removal from the community of men. At the same time, Plato 51

52 53

54

Allen (2000) 68–71. On the semantics of punishment in classical Athens see also Saunders (1991) 3–4; on Plato’s terminological choices see Saunders (1991) 184. Saunders (1991) 150–151; on δίκη: Plato, Laws 782b–c (Loeb 490–492). Plato, Laws 735c–736a (Loeb 348–352); cf. Gorgias 525b (Loeb 524); Laws 863a (Loeb 230): death penalty as κολαστήϛ. Allen (2000) 77–86, 246.

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recommended removal of the ‘incurables’ to protect the community from their wrongdoing. Plato’s ideas formed a startling cocktail of old and revolutionary new concepts of deterrence, social hygiene, education and cure and therefore were open to multiple interpretations. A number of aspects in Plato’s thought were particularly problematic for ensuring their continuity in later social theories and practices.55 To begin with, Plato was very vague about what exactly the educational programme of punishment should entail – apart from the company of good men – while he was very specific about the role of penalties in instilling fear as an initial prompt to change behaviour. Most penalties he proposed apart from imprisonment were similar to those in use in Athens and hence many involved pain. This could confirm existing beliefs that punishment bettered offenders by deterrence. The complicated system of educated and uneducated people, which did not entirely match the categories of curables and incurables, seemed, on the face of it, to confirm existing ideas about social hierarchy and the severity of penalties being determined by the severity of the crime or by social status. In the category of the ‘incurables’, although Plato intended their treatment to be the extreme end of education, the methods proposed and the language used built on existing customs of drawing examples and social hygiene. In fact, Plato’s penology was not much later qualified by Aristotle in order to align it with social demands.56 Aristotle tried combining Athenian and Plato’s penology by arguing that punishment should both satisfy the victim and ease his anger, hence be justified by retribution and vengeance, as well as reforming the criminal’s soul. It should be both τιμωρία and κόλασιϛ, and, in the latter sense, a medicine (’ιατρεία, ϕάρμακον).57 With this he supported a deadlocked ‘combined’ justification of punishment as both retribution and ‘reform’ that we still struggle to unravel today. In terms of education, Aristotle argued that punishment deterred criminals from re-offending and through this they acquired better habits. Punishment was like medicine in this respect for desire was weakened through pain and frustration, according to the time-honoured concept of healing by contraries.58 Aristotle could argue that this was education, in the sense of training body and mind, but it did not envisage deeper understanding of why behaviour was wrong.59 However, Aristotle also denied the 55 57

58

56 For the following see Saunders (1991) 187, 354–355. Allen (2000) 281. Aristotle, Rhetoric 1.20.17–1.20.18 (Loeb 112); Politics 7.12.3 (Loeb 596): αἱ δίκαιαι τιμωρίαι καὶ κολάσειϛ; Allen (2000) 283. 59 Aristotle, Nicomachean Ethics 2.3.2–2.3.4 (Loeb 78–80). Saunders (1991) 14.

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Platonic concept of the equality of all souls and it was hence not the purpose of his philosophy to elaborate on a method to bring every single individual to reason and a pre-existing divine state. Perhaps the starkest difference between the concepts of Plato and Aristotle’s view of public punishment was that, while Aristotle agreed that children could be taught through punishment and that adults could behave ‘childishly’, he did not share the idea that education was a never-ending, all-pervasive feature of the state, which turned the law-giver and the judge into an authoritarian, if benign, paternal figure, not only with respect to subordinate people, but free adult citizens as well. For Aristotle the household was one building block of the polis, for Plato the entire polis was a household.60 Plato’s concepts on punishment had little practical consequences in Athens. Yet, they were crucially redeployed by Greek writers who described monarchical contexts, where justice was meted out by an authoritative, father-like ruler.61 For example, Plato’s contemporary and fellow Sokratesstudent Xenophon used Platonic language in his proto-mirror of princes Cyropaideia, to characterise Cyrus, the ideal king of Persia (576–530 bc), as a ruler and judge who recognised that sometimes reform could be brought about through fear and pain, and sometimes through rewards and praise.62 It was this paternalistic character of Plato’s law-giver and judge, along with Plato’s endorsement of the educative value of deterrence, that was taken up by Roman authors. Emendatio In his Noctes Atticae (c. 170 ad), that curious encyclopaedia of secondcentury Roman knowledge, Aulus Gellius attempted a definition of the purposes of punishment.63 Gellius reported that ‘it has been thought’ (existimatum est) that there were three justifications of punishment. These included, firstly, κόλασιϛ and νουθεσία, which Gellius equated with Latin castigatio and emendatio. Such punishment was applicable where the offender had done wrong accidentally (fortuito), so it would make him more careful. If the offender showed signs that he would improve voluntarily or if there was no hope for improvement, probably because the offender was insane, punishment should be discarded in this 60 61

62 63

Nagle (2006) 203–296. For Plato’s law-giver being authoritarian see Harries (2011) 374. For the success of Plato’s concept of the wise ruler in Hellenistic writing see Desmond (2011), in particular Chapter 2. Saunders (1991) 122, who cites, for example, Xenophon, Cyr. 3, 1, 8–30 (Loeb 220–238). Aulus Gellius, Noctes Atticae 7.14 (Loeb 126–130).

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instance. The second justification of punishment was τιμωρία, which aimed at the preservation of honour (conservatione honoris) and personal satisfaction of the victim, but only if the victim had honour to lose. As a third justification Gellius listed παράδειγμα, to turn the offender into a deterrent example, in the public interest. Such justification applied where there was reason to inspire fear in others. It is clear that with this differentiation according to Greek terminology Gellius was giving an account of how this problem had been discussed among Greek philosophers. He quoted his own philosophy teacher in Athens, the Platonist Taurus, as an authority and also made direct reference to Plato, with a citation from the Gorgias (525a), which may show that he had read Plato personally.64 Yet, these Greek precepts were squarely interpreted in Roman terms. Gellius explained that Plato had only discussed the first and the third justifications for punishment and expressed some astonishment that Plato had not discussed the second one, the preservation of honour. He admitted that he could not give a plausible explanation for this, with a vague allusion to Plato’s metaphysical interests in the restoration of the soul, as such revealing the practical importance of personal satisfaction in Roman thought. He did not mention, and therefore probably was not aware, that Plato had developed his entire penology in opposition to this second type. In Gellius’ book, educative punishment was reduced to those who had erred unintentionally or permissibly, while the most important justification for punishment was deterrence, for which Gellius also found authority in Roman antiquity (veteres nostri), where comparable severe penalties had been called examples (exempla). If we understand the Noctes Atticae as a celebration of Roman culture as practical engagement with public life, against Hellenist theoretical knowledge, the purpose of this debate in Gellius’s work was to underline the value of Roman principles of punishment which were as sophisticated, but also more practical than Greek.65 The term Gellius used to indicate education as a justification of punishment was emendatio.66 We have inherited this term in modern English to denote the amendment of writing, to emend a text. Emendare and its derivatives were used with this very meaning in Latin, also often referring 64 65

66

Diliberto (1993) 130–134. For Gellius’ view on how inadequately Greek philosophy of his time, as embodied by his former mentor Favorinus, prepared for public life see Keulen (2009) 178–189. For reference to the literary and legal uses of emendatio that underlie this study see Thesaurus Linguae Latina (1931–1953), s.v. ‘emendare’ and ‘emendatio’, 458–467, 454–456; Heumann, Seckel (1971) 169; von Mayr-Harting (1965 repr. 1963) 921–922; Bartoletti Colombo (1983) 482–484.

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to correcting speech. In a broader sense, however, its primary meaning was the amendment of a faulty situation or the correction of a mistake. Emendare was also used in the (literal and metaphorical) sense of curing a disease.67 Overall, the term had strong associations with teaching, shaping, and healing and qualified its synonym corrigere in this sense. The passive emendari was usually employed for someone or something being improved through the action of another, but emendare could also be used in a reflexive way, for those who improved themselves out of their own accord.68 In classical Latin, the term was usually reserved to denote treatment of those who were considered ‘unshaped’ in a social sense and hence unconscious of their wrongdoing. In a passage of his Roman History, Livy (d. 17 ad) described the consul Marcius’ scolding of Perseus of Macedonia on a small breach of contract with the Roman people in 172 bc as an act of emendare, for Perseus had been ignorant of his offence and Marcius hence behaved like ‘physicians who administer disagreeable remedies to restore a patient’s health’.69 The choice of term underlined the hierarchical relationship between the Roman general and the Macedonian king, who was also younger in age. It was indeed those who were irrational due to their age, ethnicity, social status or nature who were supposed to submit to emendatio. Columella, a first-century agricultural writer, called the taming of an obstinate ox emendatio.70 The first-century stoic philosopher Seneca claimed that young people were by nature ‘emendable’ (emendabilis), that is, they were intellectually inferior and their behaviour was therefore still able and even in need to be shaped, quite like a first draft of a text.71 Significantly, the past participles emendatus or emendatissimus denoted an adult of faultless behaviour, which implies that to reach this state one had to go through a process designed to overcome inevitable faults of youth and irrational states of mind. It could also distinguish higher-born and lowerborn people.72 Emendatio in the classical sense hence stood in contrast with 67

68 69

70 72

See e.g. in the literal sense Pliny, Natural History 23.124 (on the medicinal properties of oils, herbs etc.) (Loeb 496); in the figurative sense e.g. Quintilian, Inst. 5.10.73 (drawing on the principles of healing by opposites): ‘if war is the cause of evil, the cure is peace’ (si malorum causa bellum est, erit emendatio pax) (Loeb 402). E.g. Seneca ep. 104.20, ep. 107.12 (Loeb 202, 228). Livy, Roman History 42.40.3: sicut medici, cum salutis causa tristiora remedia adhibent; and 42.42.8 (Loeb 408, 418). 71 Columella, de re rustica 6.2.11 (Loeb 132). Seneca, de clem. 2.7.2 (Loeb 444). Seneca the Elder, Contr. 9.5 (28).15 (Loeb 320); Pliny, ep. 8.22.2 (Loeb 68); D 4.3.11.1 (Ulpian) where it is implied that a homo vitae emendatioris is of a higher social status than a man of moral failings; also see Symmachus, ep. 1.25 (Callu 89) and ep. 3.51 (Callu 56).

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the treatment of free adults. The great fourth-century orator and classical scholar Quintus Aurelius Symmachus thought of emendatio as such a feature of youth and status that, in his famous defence of Roman religion during the Altar of Victory controversy, he described it as a shameful process (contumeliosa est), if the personified Rome, in her old age, had to change herself and bow to Christian demands.73 Emendatio of the young and ignorant could, however, be strongly connected with paenitentia, which when paired with emendare assumed a meaning close to its later Christian sense of ‘remorse’ and to its Greek synonym μετάνοια, that is, understanding of one’s fault, rather than the in classical Latin more common meaning of the term as ‘change of heart’.74 In a telling letter, the late first-century senator Pliny the Younger wrote to his friend Sabinianus that he had received Sabinianus’ young freedman who had angered his patron and feared punishment. The freedman begged Pliny for help to restore his master’s good-will, which Pliny agreed to do. He asked Sabinianus to make some concession to the freedman’s youth and explained that he had the impression that the freedman showed real paenitentia and believed him ‘to be reformed, because he realises he did wrong’ (credo emendatum quia deliquisse se sentit).75 Feelings of ‘remorse’ may therefore have been understood as customary incidents in the course of learning while growing up.76 In accordance with the customary Roman understanding of ‘forgiveness’, the freedmen in Pliny’s opinion could go unpunished, because due to his youth and social status he was not fully liable for what he had done.77 In the early empire, emendatio was usually associated with gentle methods and verbal persuasion to bring about reason, not with pain and bodily punishment. Pliny even juxtaposed, in a letter to Attius Clemens on the teaching methods of the stoic philosopher Euphrates, castigatio, the beating with lashes, and emendatio, the correction through words.78 The use of emendare in the context of the teaching through verbal persuasion is also quite prominent in Quintilian’s treatise on the teaching of rhetoric, the 73 74 75

76

77

78

Symmachus, Relatio 3.10 (Barrow 40): contumeliosa est emendatio senectutis. For the distinction see Thome (1990) 297–298; Kaster (2005) 67–83. Pliny, ep. 9.21.1 (Loeb 220); also see Seneca the Elder, Contr. 2.4.10 (Loeb 310) for the connection of emendatio and paenitentia. See Fulkerson (2013) 7–8 who argues that ‘remorse’ was an emotion only condoned in the young and socially inferior in classical antiquity, but frowned upon in the case of male adults as a sign of instability of character. On the Roman understanding of ‘forgiving’ as a response to an act done out of ignorance, see Konstan (2010) 59–90. Pliny, ep. 1.10.7 (Loeb 34).

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Institutio oratoria (written c. 90 ad), for example when he advised the teacher that his reform (emendatio) of small boys should not be too severe, as they would lose their delight in learning.79 Interestingly, in view of the Columella passage mentioned above, Quintilian added that ‘even farmers know this’ (quod etiam rusticis notum est). There was also some assumption that young people would be morally and socially shaped just through growing up, in which case there was no need at all for harsh methods.80 With classically minded authors, the use of emendatio as improvement of character due to admonition, setting an example or just growing-up persisted into late antiquity, as in the late fourth-century Historia Augusta’s report of the young emperor Gordianus’ ‘correction’ through an educational letter by his father-in-law.81 In his obituary of Valentinian I, Ambrose used the term to describe the forming of character that the emperor went through during his youth.82 Already by the time Aulus Gellius wrote his Noctes Atticae, however, emendatio could evidently also be evoked in the same instance as castigatio, with its strong flavour of education through corporal punishment.83 Aulus Gellius was not alone in this association of emendatio with pain, but was seconded in this above all by legal writers. For example, in his exposition on the definition of offences that allowed a lawsuit for iniuria, the second-century jurist Claudius Saturninus wrote that a parent or teacher could not be legally prosecuted for using the whip (verbera), as it was evident, purely on the basis of their social role, that their actions were for the sake of ‘improvement’ (emendatio), not meant as an insult (iniuria).84 In the fourth century, imperial law allowed minors (probably those under fourteen years of age) to be punished at home for small offences even if accused and sentenced in a criminal process. This right to punish of household elders was called the ius emendationis. The early sixth-century interpretation of the law in the 79

80 81 82 83 84

Quintilian, Inst. 2.4.10 (Loeb 284): ne illud quidem quod admoneamus indignum est, ingenia puerorum nimia interim emendationis severitate deficere; nam et desperant et dolent et novissime oderunt et, quod maxime nocet, dum omnia timent nihil conantur, see also Inst. 2.9.2 (Loeb 322–324); also see Seneca, de clem. 1.16.3 (Loeb 404) on emendatio of pupils through verbal admonition. Seneca the Elder, Contr. 2.4.10 (Loeb 310). SHA, The Three Gordiani 25.5 (Loeb 428): adulescentem soceri consiliis emendatum atque correctum. Ambrose, De obitu Valentiniani 46 (CSEL 73:351–352). On the meaning of castigatio see Lewis, Short (1963), s.v. ‘castigatio’, 297–298. D 48.19.16.2: ‘flogging goes unpunished if administered by a teacher or a parent, for it is evident that it is administered to correct and not to insult; it is punished when someone is beaten by an outsider out of anger’ ([verbera], quae impunita sunt a magistro allata vel parente, quoniam emendationis, non iniuriae gratia videntur adhiberi: puniuntur, cum quis per iram ab extraneo pulsatus est). Claudius Saturninus is sometimes identified with the early third-century jurist Venuleius Saturninus (see p. 151), although this seems to be erroneous: see Honoré (2010) 55.

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Visigothic Breviarium specified that such emendatio could consist in beating (verberibus) where evidently words or respect did not do the trick.85 A few decades after Claudius Saturninus’ description of children’s or young people’s punishment as emendatio, the jurist Ulpian explained that a freedman was not to be granted legal action for insult against his patron if the patron had only verbally admonished, moderately punished or ‘improved’ (emendaverit) him, evidently implying a form of corporal punishment.86 Emendatio was also the choice of words for slave punishment in the Visigothic interpretation of a Constantinian law that exonerated a master from any criminal charges if he had punished a slave for the sake of ‘correction’ (correctio, in the Breviarium emendatio) and accidentally killed him.87 In his De Morte Persecutorum (c. 315 ad), the Christian rhetoric teacher Lactantius cited as evidence for the pagan emperor Galerius’ cruelty an example from his domestic life, his habit of punishing (emendare) his slaves with lances, instead of rods.88 Although Lactantius was heavily critical of Galerius, he still chose a verb with an educational connotation, as was customary when describing the disciplining of domestic dependants. Emendatio was also used in the context of a magistrate’s right of coercitio, to restore law and order through the summary punishment of non-citizens, those of servile status and increasingly over the course of the empire those of lower rank, humiliores. The jurist Ulpian explained that, upon request from a patron, a magistrate could ‘improve’ (emendare) a disrespectful freedman out of court through verbal reproof or the use of cudgels (fustes).89 This is in line with his definition of beating with cudgels (fustes) or whip-lashes (flagellatio) as admonitio or castigatio, through which he emphasised the function to ‘teach offenders a lesson’ of these forms of punishment.90 From these examples it is clear that from the second century on emendatio became a synonym for punishment of offenders who were, due to their age or socio-legal status, seen as devoid of an understanding of correct social behaviour. The choice of term elucidated the associations between bodily punishment and moral education, which was deemed particularly appropriate for those of lower social status, who were considered, at the same time, immoral and irrational, and thus open only to learning through 85 86 87 88 89 90

CTh 9.13.1 (365) = CJ 9.15.1 = Brev. 9.10.1. D 47.10.7.2: quod dominus ei convicium dixerit vel quod leviter pulsaverit et emendaverit. CTh 9.12.2 = Brev. 9.9.1. Lactantius, Mort. Pers. 22 (SC 39:103): domestici et administratores lancea emendabantur. D 1.16.9.3 (Ulpian): similiter et libertum non obsequentem emendare aut verbis aut fustium castigatione. D 48.19.6.2 (Ulpian).

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pain and humiliation. The use of the word emendatio justified their punishment as salutary and reforming. This widening up of the meaning of emendare is also confirmed by a curious list of synonyms collected by the fourth-century grammarian Charisius, which he claimed was compiled Ciceronis ordine, but was in fact much closer to his own time. In this list, emendat appears as a synonym of such widely different verbs as ‘teach’ (docet) on the one hand, and ‘corporally punish’ (castigat), ‘scold’ (obiurgat) and ‘rebuke’ (corripit), on the other.91 All of this is not to say that practices of child-rearing or slave management changed over the course of the early empire. As we have seen above, the application of pain as a mnemonic device in the teaching of the young and those considered without reason was valued throughout GrecoRoman antiquity, but it is much debated and beyond the scope of this study to ascertain to what extent this had an effect on daily life. Yet, it is remarkable that the semantics of emendare and emendatio shifted over the course of the early empire from denoting admonition and persuasion to denoting punishment, which may reflect a more autocratic conceptualisation of norms concerning fatherhood, patronage and education. This development may have been enhanced by the rise of Christianity.92 As Chapter 3 will show, however, Christian writers differed from many Roman classical writers in their use of the terminology surrounding emendatio to describe education and punishment not only of domestic dependents, but of all mankind, including free adults, as a feature of divine fatherhood and beyond purely social purposes. By late antiquity, emendatio had come to justify and describe domestic punishment, a magistrate’s summary punishment of lower-rank offenders, divine punishment, ecclesiastical punishment, monastic punishment, and, crucially, punishment following a public court sentence alike. This integration of punishment into an all-encompassing cosmological system of education was more similar to Plato than what some of his classical Roman commentators had allowed, who had merely employed Platonic terminology to further a distinction between the purposes of domestic and public punishment. It is to the investigation of the beginnings of this integration that we will now turn. 91

92

Flavius Sosipatrus Charisius, Ars Grammatica 5: Synonyma Ciceronis ordine litterarum conposita (ed. C. Barwick (Leipzig: Teubner, 1964) 420). See Holtz (1978) 225–233 on the list’s date. See Saller (1996) 157–164; Garnsey (1997) 101–121. Saller’s argument that not only norms, but also practices changed has been refuted by Laes (2005) 75–89.

chapter 2

Punishment and reform in early imperial legal thought

The early empire was a time of increased reflection by Roman politicians on Greek political philosophy of good rulership, as well as attempts by Greek intellectuals to come to terms with Roman rule, culminating in the second sophistic.1 These reflections also left their mark on discourses on law and legal punishment. Perhaps the most remarkable result was the debate about the educative purpose of law-making itself, with which we shall begin this chapter. However, the transition from the Roman republic to imperial rule also witnessed more intense reflections about principles of punishment, as the emperor’s and his delegates’ new roles in criminal jurisdiction triggered questions about impartiality and the correct use of power. As we shall see in this chapter, Plato’s medical metaphor as well as ideals of domestic punishment and its expectations of ‘education’ that we investigated in the previous chapter entered the discussions on public punishment for all men, in the sense that such ideals became one aspect of the image of the good ruler. They were discussed, in particular, to justify the emperor’s discretion in criminal jurisdiction, juxtaposed with the traditional fixed penalty of the Republican jury-courts. It was argued that a discretionary approach to punishment, rather than a sign of arbitrariness, served to express well-deserved leniency in the face of permissible offences, committed through ignorance, accident or simply human error.

Legislation and education From an early age on, the domestic terms emendare and emendatio were frequently used in Roman philosophical discussions on the purpose of lawmaking, which again owed much to Platonic discourses described in the previous chapter. For example, the late Republican orator and politician Cicero chose this terminology to describe what constituted good law: 1

See Desmond (2011), in particular chapter 3.

45

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Punishment, reform and penance It is proper that the law (lex) is a reformer (emendatrix) of vice and a commender of virtue.2

A few decades later, the stoic philosopher and imperial tutor Seneca echoed this statement in an imperial context by arguing that the wise ruler and ‘guardians of the laws’ (legum praesides) would first try to persuade through instruction on vice and virtue, and the consequences of wrongdoing, before moving on to punishment.3 By the early second century, the connection between law and emendatio was even proverbial. Tacitus recorded in his Annals (written c. 110–120 ad) the speech of the stoic Paetus Thrasea at the trial against the wealthy and influential Cretan Claudius Timarchus in 62 ad, who had claimed that he was the one to decide whether thanksgiving speeches were to be held for the Roman proconsul in his province. Paetus Thrasea advocated taking the opportunity of Timarchus’s impertinence to pass a law that abolished such eulogies altogether for they exposed a provincial governor to undue patronage relationships with provincials. In order to give emphasis to this proposal, Thrasea cited other cases of misbehaviour which had led to good laws, for ‘guilt comes before punishment, and being reformed (emendari) follows after wrongdoing (peccare)’.4 Tacitus clearly associated ‘reform’ not with the punishment, but with the promulgation of laws that taught about consequences of wrongdoing. It was again Aulus Gellius who gave an impressive systematic account of Roman thoughts about the connection between laws and education in his Noctes Atticae. Gellius reported a conversation, allegedly witnessed by himself, between the jurist Sextus Caecilius Africanus and the philosopher Favorinus in the imperial palace while awaiting their audience with Antoninus Pius.5 This encounter was probably fictional, but Gellius may have participated in similar exchanges between jurists and philosophers at the imperial court.6 The debate concerned the values of the Twelve Tables (c. 450 bc), the earliest collection of Roman laws, on which Africanus was an accepted authority. The philosopher Favorinus criticized the ancient laws in light of Plato’s Laws, which he claimed to have studied avidly, because he considered some of the penalties of the Twelve Tables as either 2 3 4

5 6

Cicero, leg. 1.58 (De Plinval 34): vitiorum emendatricem legem esse oportet commendatricemque virtutum. Seneca, de ira 1.6.3; 1.16.2–1.16.3 (Loeb 120, 144–146). Tacitus, Annales 15.20 (ed. H. Heubner (Stuttgart, Leipzig: Teubner, 1994), 357): nam culpa quam poena tempore prior, emendari quam peccare posterius est; on the case and its context see Braund (1989) 146–147. Aulus Gellius, Noctes Atticae 20.1 (Loeb 406–429). Harries (2007) 55; cf. also Diliberto (1993) 155; Bauman (1996) 146.

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too harsh or too light with respect to the crime. Some, he said, were virtually inapplicable; for instance, where the Twelve Tables prescribed exact retaliation, for example that to compensate for a broken limb, the limb of the offender had to be broken in exactly the same way. It was no wonder, the philosopher concluded, that the laws were no longer observed.7 In response, Africanus pointed out that the laws were not observed anymore, not because they had no value, but because laws in general were in a constant state of change, taking account of, among others, the kinds of faults in need to be ‘cured’ (vitiorum, quibus medendum est). Ideas about what deserved to be punished changed over time. As such, Africanus acknowledged that the social context of the Twelve Tables was historical and did not exist anymore. Yet, in defence of the penalties prescribed by the Twelve Tables, Africanus brought up a principle which still held true in his day: that laws had an educative function. The purpose of especially harsh penalties was that they were feared and that this metus poenae prevented unlawful activity. The prospect of harsh punishment was often the origin of living ‘well and carefully’ (bene atque caute).8 It was important to hold on to harsh laws as they taught virtue through the sheer possibility of the penalties they prescribed. This, in the end, the philosopher had to acknowledge as a time-honoured principle. Aulus Gellius’ account gives us insight into the intellectual debates that underlay the work of the early imperial jurists, legal commentators at the imperial court, a profession that rose to prominence with the ever growing imperial administration of justice in the first centuries ad. A number of jurists of the Antonine and Severan era compiled commentaries on public criminal laws, of which we have only a partial reflection through the extracts preserved in Justinian’s Digest of 534 ad.9 While the Digest is an unemotional collection of rules and guidance for judges, the debate preserved by Gellius implies that the original commentaries may have had more of a philosophical edge to them.10 Africanus’ view that law-text had an axiomatic role in explaining the consequences of right and wrong behaviour, that is, reward or punishment, and therefore in restraining 7 8

9 10

Aulus Gellius, Noctes Atticae 20.1.4 and 20.1.9–19 (Loeb 406 and 408–414). Aulus Gellius, Noctes Atticae 20.1.7–20.1.8 and see also 20.1.34 (Loeb 418–420): verum est, mi Favorine, talionem parissimam fieri difficillime. Sed decemviri minuere atque exstinguere volentes huiuscemodi violentiam pulsandi atque laedendi talione, eo quoque metu coercendos esse homines putaverunt, and 20.1.53 (Loeb 426); see also Diliberto (1993) 169. On a fuller analysis of this genre see Bauman (1996) 119–123. Bauman (1996) 150 and see also Howley (2013) 9–30.

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people from wrongdoing, was echoed by the jurist Marcian (pupil of the perhaps better known Ulpian (d. 228)), who, in a passage included in the Digest, quoted both the orator Demosthenes and the stoic Chrysippus in Greek to promote a view of law as the ‘standard of just and unjust’.11 The attitudes discussed so far by members of the educated elite from the late Republic to the high empire were similar to what, as we have seen in the previous chapter, Plato had to say in the Laws about the role of the lawmaker in the instruction of vice and virtue, in particular through the preambles (προοίμια) of laws, and the importance of persuasion as well as and certainly ahead of punishment. The use of the terms emendatio and emendare in some of the passages cited above shows that a parental relationship between the law, or those who made the law, and those who were subject to the law was implied, similar also to what Plato had envisaged for Magnesia, although it is notable that, in this Roman context, the role of fear in governing this relationship was far more pronounced. Furthermore, while education through law was desired as a method to prevent illegal behaviour, there was in these instances little appreciation that the application of public law once an offence had been committed could or should have an educative effect on the offender. This distinction between education and punishment is clearly exemplified by the speech that Cicero gave to the people of Rome in the autumn of 63 bc during the Catilinarian conspiracy. The speech, on the subject of how to proceed with Catiline’s followers who were still in Rome, was full of Platonic terminology and medical metaphors, but ignored the essence of Plato’s penology: If it is possible, I do not want so much as to take revenge on them as to cure them, to reconcile them to the Republic, and I cannot see why this should not be possible, if only they wanted to listen. For I will explain to you, people of Rome, from what types of men [Catiline’s] troops were brought together. Each one of them I will then offer the medication of my advice and my speech, if I can.12

Cicero went on to elaborate a hierarchy of these ‘types’, from those who were just debt-ridden, whom he promised relief from their financial 11

12

D 1.3.2 (Marcian): καὶ κατὰ τοῦτο κανόνα τε εἶναι δικαίων καὶ ἀδίκων. On Ulpian’s interest in philosophy, informed by a general acquaintance with philosophical principles of the time, rather than profound analysis see Millar (2002) 69–88. Cicero, Cat. 2.17 (Loeb 84, transl. modified): quos quidem ego, si ullo modo fieri possit, non tam ulcisci studeo quam sanare sibi ipsos, placare rei publicae, neque, id qua re fieri non possit, si iam me audire volent, intellego. Exponam enim vobis, Quirites, ex quibus generibus hominum istae copiae comparentur; deinde singulis medicinam consilii atque orationis meae, si quam potero, adferam; also see Cicero, Cat. 2.11 (Loeb 78) for the medical metaphor.

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burdens, to the plain delinquents. The ‘medication’ of his advice in essence consisted in admonishing them to leave Rome or to remain quiet; if they did not heed it they would experience public punishment, the ‘avenger’ (vindex) of wicked and manifest crimes, so that ‘through the punishment of a few all can be saved’.13 Cicero therefore ostensibly offered the conspirators, who had not committed a crime yet, an opportunity to convert, while punishment would only follow at a subsequent stage if they did not act in the expected way. Cicero’s view of punishment itself, however, was purely retributive. He did not follow up the idea that punishment itself could be educative; once the fault was committed the chance of reform had passed. Education itself, he hoped, would be brought about through the fear, as Africanus confirmed as well, of being submitted to the severe punishment that the law promised, the poenae metus.14

The emperor and the discretionary penalty While much of the philosophical discussion of the early empire hence focussed on the educative value of legal rhetoric, we can, however, also observe a rising awareness of education as a principle of public punishment itself. To situate this debate appropriately, it will be beneficial to briefly sketch the development of criminal procedure from republic to empire, to which it partly responded. Under the republic, criminal cases had originally been held by iudicium populi, trial before the popular assembly, where penalties were at the discretion of the magistrate and the people, under guidance by the Twelve Tables, which emphasised the values of retaliation and expiation in punishment.15 The iudicium populi was replaced by jury-courts, the so called quaestiones perpetuae, which were established to deal with the explosion of what can be called ‘imperial’ crimes (embezzlement, corruption and treason) when Rome had come to rule most of the Mediterranean from the second century bc onwards. Each of the jurycourts was established by its own law (lex) and dealt with one of the wrongdoings that were by now publicly recognised as crimes. Over time these came to include some wrongdoings which hitherto had been dealt with in public or domestic jurisdiction, such as adultery. There was a fixed penalty for each crime, the poena legis. Capital wrongdoings, such as 13 14 15

Cicero, Cat. 2.27–2.28 (Loeb 98): ut (. . .) paucorumque poena vos omnes salvi esse possitis. Cicero extolled the virtues of the poenae metus also in his leg. 1.40–1.41; 2.25 (De Plinval 22–23, 53). On the iudicium populi see Robinson (1995) 1; Robinson (2007) 3, 187.

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treason or murder, which were the wrongdoings the jury-courts were concerned with, demanded capital penalties, that is, penalties affecting the status and citizenship of the convict. Initially the capital penalty was death, until, during the course of the first century bc, it could be replaced with a form of exile.16 Lower-rank people, whose wrongdoings were probably addressed within domestic contexts, public procedure or through the coercitio of magistrates, the power of those with imperium to summarily restore law and order, were certainly submitted to more humiliating forms of punishment, but we know very little about them in the republican period.17 The principal idea behind the fixed penalties of the jury courts was retribution. It is Cicero’s De Officiis (44 bc), written with a strong Stoic flavour to instruct his son about moral behaviour in public life, that provides us with the most comprehensive insight into their underlying philosophy.18 Cicero saw the jury-courts as encapsulating the spirit of the Roman republic. The poena legis ensured that every crime was treated in an equal and dispassionate fashion, and that penalties were proportionate to the crime. According to Cicero this was the essence of justice (aequitas) and humanitas as it prevented anger, which could be part of discretion in punishment, from distorting judgement. Punishment was not about personal satisfaction of the victim or judge, or humiliation of the offender, but about the welfare of the state (utilitas rei publicae).19 This was an important point to make as any case brought before the jury-court needed a public accuser, though not necessarily the victim, who may well have pursued their personal agenda in bringing the charge.20 From the early empire on, other courts emerged alongside the jurycourts. These included, particularly under the Julio-Claudians, the senatorial court, as well as, most importantly, the imperial court, and by imperial delegation, the courts of imperial officials, the Praetorian Prefect, the Urban Prefect and the provincial governors. The legal criminal procedure conducted in these single-judge courts became known as cognitio. The origins and legal foundations of imperial jurisdiction are still not clearly understood, but it must have been in many ways a logical consequence of the emergence of an emperor who was the guarantor of law and peace and monopolised governmental functions. There may also have been purely pragmatic reasons for people turning to the emperor for justice as 16 18 20

17 Robinson (2007) 184–185. On exile see below Chapter 7. Robinson (2007) 187. For the following see Bauman (1996) 4, 35–41. 19 See Cicero, off. 1.25 (Loeb 88–90). On public accusation in the quaestio process see Harries (2007) 18.

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the jury-courts were not able to cope with many charges at a time and focussed on political trials rather than ‘ordinary’ misconduct.21 In the cognitio penalties applied were more flexible than those fixed by statutory law. The range of crimes was also less defined and greatly extended. Offences that had hitherto been dealt with in civil disputes between private individuals, such as theft or iniuria (verbal or physical assault), so-called delicts, could be dealt with by cognitio, even though criminal charges for these could only be brought by the victims. The two most notable features of cognitio were, on the one hand, the expansion of brutal and public forms of punishment akin to the entertainment for which the Roman empire is so famous, such as condemnation to the beasts in the arena. On the other, the so-called dual-penalty system emerged, under which the elite – a rather vague category called honestiores, whose membership also shifted – became exempt from the application of humiliating punishments. This system’s roots, as we have seen, dated back to republican times, but fully, although perhaps never comprehensively, developed only in the second century. In consequence, degrading forms of execution, including crucifixion, burning or condemnation to the beasts were reserved for humiliores, which may have included everyone below the social category of town councillors (curiales), while the death penalty for honestiores was decapitation by the sword. Likewise, among the non-lethal penalties, honestiores were not to be sentenced to forced labour or corporal punishment, but were to be exiled (with or without loss of property) or fined. In essence, honestiores were spared any punishment that unduly affected their body.22 The proliferation of offences dealt with by criminal procedure and the development towards more brutal, but also less egalitarian forms of punishment during the empire can partly be explained by the court atmosphere in the cognitio, for which accusation brought by a member of the public remained essential. Given that accusers had to commit themselves formally and in writing to the prosecution, with harsh penalties reserved for those who abandoned the case or failed to prove it, most accusers must have been driven by strong emotions of vengeance or greed.23 Through the discretionary penalty the judge was able to – or, to keep the peace, often had to – respond to these emotions of the victims and public accusers and also to 21

22

23

On the rise and nature of the cognitio see Bauman (1996) 51; Robinson (1995) 6–9; Krause (2004) 69–72; Harries (2007) 28–33. On the dual-penalty system see Garnsey (1970) 153–180; Harries (2007) 36; Robinson (2007) 106; cf. Rilinger (1988) on these categories’ fluidity. See on this explanation for the harshness of imperial penalties in particular Harries (2007) 32–33.

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crowd opinion. At the same time, judges were free to apply their own elite expectations of social hierarchy, by reserving deterrent and humiliating penalties for people of lower ranks and provincial backgrounds.24 Penalties therefore developed also according to the values of plaintiffs, the crowd, or the judge in the provinces. They were not necessarily driven by overarching social theories the emperors and their jurists may have held. Emperors certainly recognised the benefits that came with inspiring fear as well as providing entertainment through cruel punishment.25 Yet, the early imperial court was also the place where anxieties were expressed that imperial jurisdiction exposed the emperor and his delegates to criticism on the abuse of power, and the place where solutions were offered and models for the rex iustus were developed.26 Such solutions included the paternalistic drawing of parallels between imperial jurisdiction and domestic practices of punishment. Among the most intricate expressions of this kind were Seneca’s treatises On Anger (written between 41 and 54 ad) and On Mercy (written in 55 ad).27 Although they elaborated on the same philosophical principles, On Anger and On Mercy were very different in scope. On Anger, addressed to Seneca’s brother Novatus, proconsul of Achaia in 51/2 ad, was a guideline on how a man of social standing and wealth should negotiate the various, mostly quotidian and trivial situations that could make him angry because he perceived them as an attack on his honour (iniuria) and therefore desired revenge.28 The power to punish was taken on broad terms and included the punishment of slaves, children, clients, as well as friends, the latter presumably through legal prosecution.29 The sub-texts were concerns about slavery and the management of the slave-master’s absolute power in this area, as well as about the proliferation of law-suits on iniuria in contemporary society.30 The topic was therefore not, or not only, political power, even though On Anger developed certain themes that had resonance of a political character. In On Anger, ‘rulers’ and ‘judges’ handling punishment provided examples on the correct or incorrect use of more broadly defined power of superiors over inferiors.31 On Mercy, addressed to the eighteen-year-old Nero, was, on the contrary, a combination of a philosophical guideline on the use of political 24 26 28 29 30

31

Garnsey (1968) 141–162. 25 Bauman (1996) 94. See also the classic Coleman (1990) 44–73. 27 See Brunt (1975) 21–27. Bongert (1993) 95–120. Seneca, de ira 3.30–3.35 (Loeb 328–338). Seneca, de ira 3.5.4; 3.24.2; 3.33.1–3.33.2 (Loeb 264, 316, 332–334). Slave–master relationships: Seneca, de ira 3.12.5–3.12.57; 3.32.1–3.32.3; 3.35.1 (Loeb 284–286, 332, 336); lawsuits: de ira 3.33.1 (Loeb 332–334). Seneca, de ira 2.30.1 (Loeb 230–232).

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power and a praise of the emperor’s virtues, a panegyric.32 It was more cohesive on the administration of legal punishment, as the role of the emperor and the rise of the imperial court which were constitutionally undefined caused the need to discuss the correct administration of punishment. It has also been argued that Seneca’s insistence on the principles of discretion was a direct contribution to contemporary debates about the feasibility of the fixed penalty of the jury-courts (poena legis), where Seneca took the view that discretion in sentencing should be part of positive law.33 Seneca’s premise in On Mercy was that the emperor’s power was unlimited and checked only by self-discipline, not the law.34 As for him cruelty and vengeance were easily executed, it was therefore particularly seeming to refrain from them. Seneca argued that as the emperor was metaphorically ‘father of the country’ and had been entrusted with patria potestas in this sense, which made him ‘arbiter over life and death of whole people’, it was fathers, slave-masters and teachers who provided examples on the correct use of power. For as Seneca stated, there was more than one kind of power: from that of the princeps over the cives, to that of a father over his children and a teacher over his pupils, to that of a military leader over his soldiers. The emperor could draw inspiration from these models. They presented a useful comparandum, as their methods of punishment were not formally regulated, but relied on custom, tradition and moral expectations.35 Seneca was not the first nor the last to draw parallels between the behaviour of the father and that of men in power. The trope can be traced back to Cicero’s court speeches Pro Ligario and Pro Marcello, both a sort of veiled panegyric on Caesar, and became a standard feature in imperial panegyric.36 On Mercy and On Anger together thus explored a crucial interface of early imperial society: the personal character of the emperor’s rule and the importance of individual morality among his high dignitaries.37 The principles of good household management elaborated in On Anger can be seen as the foundation of what Seneca had to say about imperial punishment in On Mercy. As a basic rule, Seneca argued that punishment was necessary to address wrongdoing. However, it should not be 32 34 35

36

37

33 On this hybridity see Morton Braund (1998) 73. Bauman (1996) 77. Seneca, de clem. 1.1.2 (Loeb 356–358). Seneca, de clem. 1.1.2 (Loeb 356): vitae necisque gentibus arbiter; emperor with patria potestas: Seneca, de clem. 1.14.1 (Loeb 398); fathers, slave-masters and teachers as models: Seneca, de clem. 1.16.2 (Loeb 404). See e.g. Cicero, Pro Lig. 13, 29–30 (ed. A. Klotz (Leipzig: Teubner, 1918) 90, 96–97) and Morton Braund (1998) 53–76. See for example Pliny, Panegyricus 6.2 (Loeb 334), who called Trajan – the ‘father of the human race’ (parens generis humani) – a corrector emendatorque of army discipline. Griffin (1976) 391.

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punishment for its own sake, that is, for revenge, but punishment that was ‘right to inflict’ (quia oportet) and ‘merited’ (merita poena).38 Such in essence retributive justification of punishment was qualified by the argument that what was ‘merited’ was, in fact, relative, for not all wrongdoers were alike.39 Punishment had to be applied with discretion (ratio).40 Therefore the wise punisher – ruler, slave-master, father, teacher – was the one who closely assessed the circumstances of wrongdoing to reach a conclusion about guilt. Sometimes he would conclude that leniency or clemency was justified. However, this was not the same as forgiveness, for it was the administration of just punishment, of punishment that was merited or not merited in a particular instance and for a particular offender. Leniency was justified where there was hope to ‘educate’ (emendare) the offender; and such hope was justified on the grounds of error, drunkenness, female rage, childishness and particularly youth of the offender.41 For example, Seneca praised Augustus and his friend, the senator Tarius Rufus, for deciding to send Tarius’s son, who had plotted the murder of his father, into exile (on an estate belonging to his father), rather than condemning him to death, for the aduluscentulus had acted out of impulse (impulsu) and timidly, which was near-innocent (quod proximum erat ab innocentia).42 In this context, Seneca also very often used the term peccatum to denote wrongdoing, which in classical Latin had a strong flavour of error rather than guilt.43 He also, like Pliny in the freedman story mentioned in Chapter 1, explained that signs of paenitentia demonstrated that someone could be reformed and hence punishment could be discarded.44 Severity, on the other hand, had to be applied where offenders were beyond hope (deplorati, insanabiles), the security of others was at stake or an example should be drawn for the improvement of others. However, even in the case of severe punishment, it should be done sine odio (without hate).45 The possibility that an offender could be educated also demanded a sequence of punitive measures that ranged from the light (verbal admonition in private) to the severe (death), if an offender remained stubborn.46 The 38 39 41 42 43

44 45

46

Seneca, de ira 1.9.4; 1.19.5; see also 1.6.5 (Loeb 130, 158, 122). Seneca, de ira 1.19.1 (Loeb 158). 40 Seneca, de ira 1.6.1 (Loeb 120). Seneca, de clem. 2.7.2 (Loeb 444); de ira 2.19.4; 2.26.6 (Loeb 206, 222). Seneca, de clem. 1.15.7 (Loeb 402). Use of peccatum e.g. Seneca, de ira 1.16.1 (Loeb 144); on the meaning of the term see Thome (1992) 76. On Seneca’s view of humankind see also Bongert (1993) 112. Seneca, de ira 1.19.5; 3.26.2 (Loeb 158, 320). Seneca, de clem. 1.2.1–1.2.2, 1.22 (Loeb 362–364, 418–420); de ira 1.19.7; 1.6.4 (Loeb 158, 122): documentum omnium sit. Seneca, de ira 1.16.2–1.16.3 (Loeb 144–146).

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frequent use of the term emendare in this context clearly shows that Seneca wanted to associate imperial punishment with the ideals of paternal punishment and medical treatment.47 Seneca also exhorted Nero directly to be like the parent who turned to harsh punishment only as a last resort. Fathers did not apply a harsh penalty, the whip, for trivial offences.48 In the light of the customary understanding of the term, the most crucial change in its use by Seneca was the extension of the possibility of emendatio through punishment from children to all mankind. Not only did Seneca argue that the emperor should act like a father, but he also explained that all humans were irrational – to be human meant committing errors.49 In his On Firmness, addressed to his young relative Annaeus Serenus and written probably late in Seneca’s life, a treatise on how wise men were immune against abuse, he used emendare in a different, but related way. The wise man could not be affected by the insults of adult men, which made them appear like children. Still, he might choose to inflict punishment and suffering onto them, not to avenge himself, but to educate them (non enim se ulciscitur, sed illos emendat). Childish men were like animals that also needed to be restrained by the lash, ‘in order that by pain they might overcome their obstinacy’. In this way, again, the wise man acted like a father or physician.50 It is unclear in which exact context Seneca placed the ‘wise man’ here. The paragraph immediately preceeding this passage suggests a domestic context, where the insults derived from slaves and children, yet the passage itself alluded to free adult men of social standing and implied a ruler-subject relationship. Nearly two-hundred years later, under the Severan emperors, the Roman aristocrat and Greek historian Cassius Dio gave an account of Augustus’ trial of Cn. Cornelius Cinna, who had conspired against the emperor in 4 ad. His report of the incident demonstrates that paternalistic parallels drawn between imperial jurisdiction and domestic forms of punishment had not lost any of their potency in the early third century, when Dio set out to provide his contemporary Greek audience with enlightened examples of past Roman rulers, particularly that of Augustus.51 In Dio’s version of the story, following the advice of his wife Livia, Augustus decided not to punish Cinna, 47

48 49

50 51

Emendare or a derivative is used e.g. in Seneca, de ira 1.15.3, 1.16.2, 1.19.7 (Loeb 144, 158); de clem. 1.22; 2.7.2 (Loeb 418, 444); de const. 12.3 (Loeb 84). Seneca, de clem. 1.14.1; 1.16.2 (Loeb 398, 404). Seneca, de ira 2.9.2 (Loeb 184–186); de clem. 1.6.3–1.6.4 (Loeb 374). On Seneca’s view of humankind see also Bongert (1993) 112. Seneca, de const. 12.3–13.2 (Loeb 84–86). On Dio’s motivations of writing see Reinhold, Swan (1990) 155–173.

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but to show clemency and indeed reward him with the consulate. Seneca had also commented on the incident in On Mercy, but unlike Seneca, Dio reported Livia’s long speech which included a very detailed exposition on the justifications of punishment.52 It is unlikely that Livia’s speech was ever actually held; yet the detailed principles dealt with here were probably inspired by the debates on discretionary penalties at the imperial court at Cassius Dio’s time of writing.53 It was, in essence, a passionate plea for the benefits of discretionary penalties. There was ample proof of the effectiveness of discretion in domestic punishment, Livia said to Augustus, for private domini always considered the circumstances in their decision on whether to punish slaves lightly or harshly. As a consequence, Livia maintained that with some offenders, those who committed faults due to adventitious circumstances, such as youth, ignorance or misapprehension, persuasion was better than severity. There was more benefit in simply rebuking, threatening or moderately punishing them. However, the treatment of offenders did not even always have to be legal punishment in order to have a curative effect; it could also consist in rewards or shaming (e.g. promoting the offender or, conversely, promoting others at the expense of the offender).54 Debates on the educative potential of punishment described so far engaged with Platonic penology on a terminological level. Perhaps most striking is their frequent use, once again, of Plato’s medical metaphor. Punishing was regularly framed as ‘cure’ in a direct reference to Plato. Seneca, for instance, quoted the Platonic precept that punishment had to look to the future, rather than the past; that is, should be for the sake of the offender.55 Wrongdoing was a disease of the mind, with which it would be foolish to get angry.56 The judge was like a physician and the point of punishment was not pain, but healing the mind and body through pain. But, as in medicine, pain was to be applied only when necessary, as a last resort.57 Only if someone was ‘incurable’ (insanabilis), they had to be removed.58 Drawing on Platonic terms such as νουθετεῖν and σωϕρονίζειν, 52

53

54 55

56 57 58

Cassius Dio, Roman History 55.17–55.21 (Loeb 436–450). Seneca calls him Lucius Cinna, but this is a mistake: Seneca, de clem. 1.9 (Loeb 380–386). Bauman (1996) 57. Dio employed Livia’s character as Augustus’s alter ego to underline the human quality of his rule. On this use of gender in ancient text see Clark, E. (1998) 25–26. Cassius Dio, Roman History 55.18 (Loeb 438). Seneca, de ira 1.19.7 (Loeb 158) citing Plato, Laws 934a; for explicit Platonic references also cf. de ira 1.15.1; 2.21.10 (Loeb 142, 212). Seneca, de clem. 1.17.1–1.17.3 (Loeb 406). Seneca, de ira 1.6.1–1.6.2; 1.15.1; 1.16.4 (Loeb 120, 142, 146); de clem. 2.5.5 (Loeb 440). Seneca, de ira 1.16.2–1.16.3 (Loeb 144–146).

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Livia’s speech before Augustus in Cassius Dio’s account employed the medical metaphor of the diseased soul,59 and the distinction between those who could be cured and those who were ‘incurable’ (ἀνήκεστοϛ).60 Both Seneca and Cassius Dio, like Plato, also mention imprisonment within the range of penalties available to the wise ruler. Despite this language use, however, it is clear that the focus of the debates on purposes of punishment was not on the education of the offender as postulated by Plato. Neither Seneca nor Dio thought of punishment as part of a larger, meta-physical system to restore the offender’s soul to union with the divine. Rather, with On Anger and On Mercy Seneca sought to equip, in the stoic tradition, the punisher with the best tools to maintain inner peace and social harmony. The real disease he was interested in curing was the disease of the punisher, anger.61 Seneca’s use of emendatio in this context demonstrates that he thought about education through punishment in the Roman way that Gellius describes, as discussed in Chapter 1. The punisher who remained calm and composed would recognise that for certain offenders, particularly where they were young and where offences were permissible, education was a possibility and verbal reasoning or moderate punishment should be preferred over casting out an offender. Furthermore, the offenders Seneca and Cassius Dio had in mind were of a high social status, although it is remarkable that their punishment was compared to that of children or even slaves. The language of education also masked the pragmatic motivations behind the promotion of leniency. Seneca warned that repeated and severe punishment could lead to hatred or would turn men desperate.62 Unnecessarily severe behaviour could cut short a ruler’s reign or endanger the social fabric, by turning slaves against masters, (adult) children against parents, wives against husbands and friends against friends.63 Punishment also gave wrongdoing more visibility and attracted copy-cats.64 It is to underline these points that Seneca narrated the story of Cinna’s conspiracy 59

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61 62 63 64

Cassius Dio, Roman History 55.17 (Loeb 436–438): πάμπολλα γὰρ ὅμοια τρόπον τινὰ καὶ ταῖϛ γνώμαιϛ τῶν ἀνθρώπων, κἂν τὰ μάλιστα ἀσώματοι ὦσιν, καὶ τοῖϛ σώμασι συμβαίνει (for also the minds of men, however incorporeal they may be, are subject to a large number of ailments which are comparable to those which visit their bodies); 55.20 (Loeb 446): ἂν δὲ δὴ νοσήση̣ τι, θεραπεύειν τε τρόπον τινὰ αὐτὸ καὶ ἐπανορθοῦν, ἵνα μὴ παντελῶϛ ϕθαρῆ̣ (if there is any ailment among them, we must find some way to cure it and correct it, in order that the ailing member may not be utterly destroyed). Cassius Dio, Roman History 55.18 (Loeb 438–440): τοὺϛ μὲν λόγοιϛ νουθετεῖν, τούϛ δὲ ἀπειλαῖϛ σωϕρονíζειν. Anger as disease: Seneca, de ira 1.1.2–1.1.3 (Loeb 106) and passim. Seneca, de clem. 1.22 (Loeb 418). Seneca, de clem. 1.8.6; 1.11.4, 1.12.4–1.12.5 (Loeb 380, 390, 392–394); de ira 3.5.4, 3.28.1 (Loeb 264, 324). Seneca, de clem. 1.17.1–1.17.3 (Loeb 406).

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in 4 ad. After Augustus decided to show mercy to Cinna, conspiracies against Augustus became a thing of the past. The point of the story was not that Cinna understood what he had done wrong, but that Augustus had made his reign safer. Furthermore, also the death penalty had its social usefulness. In this respect, Seneca established a striking contrast to Plato’s precepts: by administering the death penalty the punisher was not a physician anymore, for, unlike with patients beyond hope, the wrongdoer’s death had to be accompanied by pain to turn them into an effective example. In this way, at least, they could be useful to the res publica.65 Dio’s account of Livia’s speech echoes this emphasis on the pragmatic reasons for leniency. Penal policy that looked at education rather than at instilling fear would lead the subjects to love their ruler, while to be hated would be harmful (ἀλυσιτελήϛ). Furthermore, a perhaps desirable strictly retributive understanding of punishment, where everyone was punished without distinction ‘as they deserve’ (κατὰ τὴν ἀξίαν), was described as impractical, as it would ‘destroy the majority of mankind’ (τοὺϛ πλείουϛ τῶν ἀνθρώπων ἀπολέσαϛ).66 What Seneca and Dio were therefore concerned with were the social benefits for the public good and the meta-physical one for the punisher. Education of the offender, in the Platonic sense of changing a state of mind, was, at best, a by-product, but overall Seneca and Dio were content if social conduct was changed. Seneca’s argument that light or no punishment left scope for further measures, as it left offenders with something to lose, making them live in fear of the consequences of wrongdoing is symptomatic in this respect.67 Education was certainly not linked to punishment as structured learning, such as Plato had advocated when he promoted imprisonment in the company of good men. Imprisonment, in Seneca’s and Dio’s view, was an extreme form of punishment, inspired by Plato’s τιμωρία.68

‘In emendationem hominum’: punishment as reform in the digest Similarly to Seneca and Cassius Dio, the jurists of the early empire also did not tire of reminding judges of the principle of moderatio in punishing, and 65 66 67

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Seneca, de ira 1.6.4 (Loeb 122). Death penalty puts end to suffering: de ira 1.15.1 and 1.16.1 (Loeb 142, 144). Cassius Dio, Roman History 55.19–55.20 (Loeb 442–448). Seneca, de clem. 1.22 (Loeb 418): only light punishment will improve (ipsos facilius emendabis minore poena); for he will live more guardedly who has something to lose (diligentius enim vivit, cui aliquid integri superest). Seneca, de ira 1.6.3; 1.16.3 (Loeb 122, 146). Cassius Dio, Roman History 55.20 (Loeb 446); see also Évrard (1999) 179–190, on Seneca’s negative views on imprisonment. For interpretations on the mentioning of punitive imprisonment in these classical authors see below Chapter 5.

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to consider this when mitigating or aggravating a penalty.69 Julius Paulus (fl. c. 200 ad) even gave ‘education’ (emendatio) as the justification for public punishment, when he explained that penalties were by law not passed onto heirs upon death of the offender, for ‘punishment is laid down to reform men’ (poena constituitur in emendationem hominum); and it ceases with the death of him on whom it is imposed’.70 It is the only incident before the fourth century where a jurist used emendatio in the context of public rather than domestic punishment. There may be not more to this statement than a wish to emphasise the personal link between crime and offender and the principle of individual responsibility in misdemeanor. To punish descendants of offenders would be absurd, as they certainly could not be educated about something that they had not done. Still, even though his remark seems an isolated one and is out of context in the Digest, his choice of terminology shows that Paulus was engaged in more philosophical discussions, those that sought, like Seneca, to extend a paternalistic principle of punishment from a domestic to a universal level.71 Reasonable punishment that took into account the circumstances of the offender was in fact a pet topic of the jurists, judging from the extant passages contained in the Digest. To begin with, first among such circumstances was youth. Immunity from certain kinds of public punishment had always extended to impuberes, children presumably up to thirteen years of age. Already the Twelve Table had prescribed that a person below puberty who cut the crops of another was to be flogged and fined, rather than hanged.72 In the early empire impuberes, including child slaves, who were regarded as ‘not capable of wilful malice (dolus malus)’, were excluded from civil and criminal prosecution altogether.73 Yet, the early imperial jurists developed an ever more complex understanding of mitigating 69 70

71

72

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D 50.17.155.2 (Paulus); D 48.19.13 (Ulpian); D 48.19.42 (Hermogenianus). D 48.19.20 (Paulus): poena constituitur in emendationem hominum: quae mortuo eo, in quem constitui videtur, desinit. See Lovato (1989) 429–433; who at 430 n. 29 also refutes interpolation of this passage, which is recorded in Levy, Rabel (1935) 546 by one of the most ruthless interpolation-hunters of the early twentieth century, Gerhard von Beseler, whose philological method is now largely discredited; on Beseler see also Wacke (1980) 569–571, and Johnston (1989). Twelve Tables 8.5; also cf. Twelve Tables 1.19 (ed. M. Crawford, Roman Statutes, vol. 2 (London: Institute of Classical Studies, 1996) 613–615, 684–685). D 9.2.5.2 (Ulpian); D 48.8.12 (Modestinus); D 21.1.23.2 (Ulpian); D 47.12.3.1 (Ulpian); D 48.6.3.1 (Marcian); 48.10.22pr (Paulus); also see CJ 9.47.7 (Severus Alexander): immunity from punishment cannot be given on account of age, if the offender is of an age in which he can be criminally charged. On Roman age divisions see Berger (1953) s.v. impubes and infans, 495 and 500. Sometimes, however, such principles of intellectual development or capacity were overridden by more pragmatic considerations of social security, as in the case of young slaves who shared a bedroom with their master, but did not raise the alarm when he was murdered: D 29.5.14 (Maecianus).

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circumstances, arguing that lack of intent due to ignorance could also be due not only to youth, but also to insanity, or, sometimes, gender. Those with proved mental deficiencies (insani, furiosi) may need to be kept restrained and isolated in the governor’s prison (carcer) due to their own and others’ safety, but should not be punished for their transgressions, for, as the jurist Modestinus put it with reference to a man who in a fit (furor) had killed his mother, they were punished enough by their condition.74 Sometimes it was argued that passion (impetus) led to diminished responsibility. In a rescript on the case of a husband who had killed his adulterous wife, Antoninus Pius (138–161) explained that, while the husband deserved punishment, this should not be capital for he acted with just grief (iustum dolorem) and to avenge (vindicare) himself.75 While in general every adult was expected to know the law, even if they were ignorant of being in a situation where this law applied, women’s ignorance of the law was excused due to the ‘weakness of their sex’ (propter sexus infirmitatem). This was particularly discussed in the case of incest: where a woman had been ignorant that a union was prohibited by the law on incest, she was not punished.76 The young, the insane and women could therefore be grouped together in their lack of understanding for the consideration of mitigating circumstances.77 Considerations of liability could even sometimes interfere with the differentiation of penalties by social status. The third-century jurist Callistratus recorded a rescript (an imperial response to clarify legal detail) by Hadrian (117–138) on the movement of boundary stones that made an argument along these lines: There can be no doubt that those who have moved the lines posed as boundaries have committed a very evil deed. However, the type of punishment can with better reason be established on the basis of the condition and state of mind of the person who did it: for if these are very distinguished (splendidiores) persons who are convicted there is no doubt that they allowed it for the purpose of (them) occupying the boundaries of others, and they can be relegated for a period, according to what their age allows; that is, a younger one for a longer, an older one for a shorter time. If however others (alii) have conducted business and performed their service, they are to be chastised and given to forced labour (opus) for two years. However, if they 74

75 76

77

D 48.9.9.2; also see D 21.1.23.2 (Ulpian); D 29.5.3.11 (Ulpian); D 1.18.13.1 (Ulpian); D 1.18.14 (Macer). D 48.5.39.8 (Papinian). D 22.6.9pr (Paulus); D 48.5.39(38).4 and 7 (Papinian); see also D 48.13.7 (Ulpian) on sacrilege, where types of penalties should be imposed according to age, sex or status. On all these and the following see also Robinson (1995) 16–17.

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stole the stones out of ignorance or by accident (per ignorantiam aut fortuito), it will be sufficient to adjust them through flogging (verberibus).’78

Hadrian proposed in this rescript to disregard a strictly retributive approach which would have commanded a harsh penalty for a wicked deed in any circumstance. Rather, the circumstances of those committing the crime needed to be considered. Quite conventionally, the emperor proposed a penalty affecting the body for those of a rank lower than splendidiores (which may be a synonym of honestiores, but in any case implied a person of landowning status), that is, corporal punishment and forced labour (opus) rather than exile (relegatio). Hadrian, however, made another, important distinction, that of different states of mind, between what in classical law is usually called wilful intent (dolus malus, fraus, nequitia or voluntas) and ignorance or accident (casus).79 He assumed that boundary stones were always moved wilfully by splendidiores, but also perhaps sometimes by ‘others’, for personal gain at the expense of others, but there were also those people who took the stones because they did not know that they belonged to anybody or who did not even notice that they had moved them. They certainly ‘stole’ (furati sunt) those stones, because they did belong to somebody else, but this weighed much less than intentionally harming the rightful owner. Such people, it was assumed, judging from the penalty of flogging proposed, were of lower rank. They needed to be punished for the public interest in a sort of purification – for their bad example may have infected others, a consideration repeated elsewhere80 – but were spared the harsh punishment of forced labour. Ignorance of what had happened in a legal sense (i.e. theft in this case), often associated with those who lived in the country and lacked formal education (rusticitas), therefore to some extent excused wrongdoing. Flogging, as a painful educative measure for those who lacked reason, was the appropriate penalty to lead them to insight on the consequences of their behaviour.81 78

79

80

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D 47.21.2: divus Hadrianus in haec verba rescripsit: quin pessimum factum sit eorum, qui terminos finium causa positos propulerunt, dubitari non potest. De poena tamen modus ex condicione personae et mente facientis magis statui potest: nam si splendidiores personae sunt, quae convincuntur, non dubie occupandorum alienorum finium causa id admiserunt, et possunt in tempus, ut cuiusque patiatur aetas, relegari, id est si iuvenior, in longius, si senior, recisius. Si vero alii negotium gesserunt et ministerio functi sunt, castigari et ad opus biennio dari. Quod si per ignorantiam aut fortuito lapides furati sunt, sufficiet eos verberibus decidere. For an explanation of these terms in particular see D 21.1.23.2 (Ulpian); on liability to capital crimes D 48.19.11.2; see D 48.8.14 (Callistratus) for another reference to Hadrian’s interest in intention (voluntas). Also see D 48.8.3.2 (Marcian): a crime may not be malo animo, but could still be a malum exemplum; D 48.19.38.5 (Paulus); D 48.6.3.2 (Marcian). On rustici see D 2.7.1.4 (Ulpian).

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The differentiation of penalties according to education, rank, age, gender or mental capability seems to echo Plato’s demand for shifting the focus onto the offender. Punishing those who should have known better more harshly, like Hadrian’s splendidiores, in particular seems to recall Plato’s teaching. In essence, however, the discretionary penalty was just a refinement, owing to stoicism, of the retributive principle already prevalent in the poena legis, that everyone got their just deserts, even though some deserved punishment, or certain types of punishment more than others.82 Most importantly, it was often the social status of the offender rather than the nature of the transgression that was considered to give evidence of the state of mind. A particular social status determined a priori the intellectual capacity of the offender. Furthermore, particularly in the case of serious crime, jurists certainly acknowledged the practical necessity of aggravated penalties as a good in itself. The jurist Claudius Saturninus (second century) explicitly stated that, in the case of robbers, punishment could be made harsher to set an example to the rest. He also added that the same crime could be penalised differently in different regions of the empire. Those who burned corn harvests in Africa or vines in Mysia would be punished more harshly than those who committed the same crime elsewhere, as these two provinces were the primary providers of these essential products. Callistratus (early third century) even reported that sometimes, both for the sake of preventing others to repeat the misdeed and to console the relatives of those who they had killed, robbers were hanged in the places where they had committed their crimes. Deterrence, retribution and personal satisfaction, rather than the scrutiny of personal circumstances, therefore continued to be recognised values in punishment as they had been since archaic times.83 The early imperial jurists, then, through engagement with philosophical tradition discussed the possibility of reform from wrongdoing, either through the persuasion of the law-text itself, or through leniency or moderate punishment in the case of those who were ignorant of right and wrong. This last time-honoured principle of the management of dependents, particularly in the household, could be used to define the behaviour of the good judge, and defend the discretionary penalty against objections of an arbitrary use of power. In this sense, the language of 82 83

Harries (1999) 144; on stoicism and the Roman jurists see also Miquel (1970) 85–122. D 48.19.16.9 and D 48.19.16.10 (Claudius Saturninus); D 48.19.28.15 (Callistratus); also cf. D 2.7.1pr (Ulpian), D 48.19.6.1 and D 48.19.6.10 (Ulpian). According to the elder Seneca, the value of deterrence was also taught in the schools of rhetoric: Seneca the Elder, Contr. 9.2.7 (Loeb 240–242).

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reform, emendatio and emendare, could become, inspired by Plato’s penology, a metaphor for imperial justice, as is demonstrated by Seneca’s and perhaps also Julius Paulus’s use of the term. However, most justifications of punishment, and particularly that for serious crime, remained focussed on retribution, deterrence, and the preservation of honour which had always characterised Roman punishment, reflected in the jurists’ customary choice of terms such as poena (‘recompense’) or supplicium (‘humiliation’).84 Jurists may have thought, like Aulus Gellius, that this was demanded by the practical challenges and social purposes of legal prosecution which remained focussed on victims and the interests of society, rather than the spiritual improvement of the offender. The latter, in turn, was shifted into focus by early Christian commentators on punishment, although Christian judges also did not lose sight of the former, as we shall now see. 84

Heumann, Seckel (1971) s.v. ‘poena’ 435–436, ‘supplicium’ 572. On the meaning of poena see also Pavón (2004) 112.

chapter 3

Christian principles of punishment

Already long before imperial toleration of the Christian religion in the early fourth century, Christian bishops had been acting as judges in both civil and criminal matters. The pastoral character of their office and their continuous presence in a community had made them a natural port of call for those who sought arbitration or redress of wrongdoing. From Constantine on, with acceptance of the legality of the Christian faith, public law came to regulate this legal authority following the model of existing forms of internal jurisdiction of certain communities, for example collegia.1 A bishop’s (or synod’s) competences in the so-called ‘episcopal hearing’ (audientia episcopalis/episcoporum) were, however, initially limited by law to civil disputes, or to cases of ‘ecclesiastical matters’ (causae ecclesiasticae), which seem to have been understood as transgressions of church discipline. Roman emperors of the fourth and fifth centuries were adamant that criminal cases should be brought before a public judge, if a plaintiff so wished, even though, in the eyes of Christian authorities, there was an overlap between public crimes and Christian sin.2 For example, a law issued by Valentinian III in 452 made it clear that a plaintiff could compel all clerics, including bishops, to answer criminal charges in the public court. For certain crimes (pervasio and atroces iniuriae) a bishop could send a representative (procurator), although, Valentinian was quick to add, any penalty had to be shouldered by the bishop. For any other 1

2

See the influential discussion of these processes in Humfress (2007) 157–161, who convincingly shows that Constantine did not grant legal authority to bishops, but confirmed an established judicial status quo. See also Rapp (2005) 242–250. On cases of ‘ecclesiastical matters’ see CTh 16.2.23 (376); CTh 16.11.1 (399); Sirm. 3 (384?); NVal 35 (452); NJust 123.10 (546). On the distinction between civil and criminal cases see e.g. CTh 1.27.1 (318?); CJ 1.4.8 (398) = CTh 1.27.2 (399), which explained that cases heard before the bishop could only concern negotium civile. See also Hartmann, W. (1995) 805–842; Lamoreaux (1995) 143–167; Lenski (2001) 84; Humfress (2007) 162. For the overlap between public crimes and grave sins (sins that were also crimina, that is worthy of public accusation and condemnation) see Gaudemet (1958) 272; Uhalde (2007) 108.

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criminal charge bishops had to undergo trial themselves. In the East, in a roughly contemporary constitution, Marcian declared that a cleric in Constantinople should be tried in criminal matters before the archbishop only if the plaintiff consented; otherwise the trial had to take place before the Praetorian Prefect.3 These laws show that by the fifth century contradictory legal norms and legal practices concerning the exemption from public jurisdiction of transgressions committed by clerics had created considerable confusion for anyone wishing to bring an accusation against a cleric in a public court.4 They suggest that, in correspondence to the rising power of the Church as an institution, clerical offenders and other ecclesiastical dependents were often tried in ecclesiastical courts by default. At times, in fact, bishops argued proactively that offences committed by clerics, or against the interests of the Church, were nothing else than causae ecclesiasticae. When some thieves broke into his church and stole some clothing destined for the poor, Basil, bishop of Caesarea in Cappadocia (370–379), wrote to the commentariensis, the imperial official in charge of the public prison, to ask for their release and transfer into his judicial authority, because, as Basil put it, ‘for offences committed in the church it is our business to provide reform’.5 Yet, the imperial laws on ecclesiastical jurisdiction also illustrate that, while they could not be compelled to choose a bishop as their judge, plaintiffs were free – within certain limiting factors – to choose between the public and ecclesiastical court, even in criminal matters. As criminal procedure continued to rely on public accusation, judges would usually not have taken action without a prompt from the public.6 As we shall see further below in this chapter, late antique bishops were indeed at times approached by victims of misdeeds in search for a special form of justice. In the above-mentioned letter, Basil of Caesarea also juxtaposed the punishment the thieves were most likely to expect from a public judge with the ‘education and admonition of the Lord’ (παιδεία καὶ νουθεσία κυρίου) 3

4 5

6

NVal 35 (452); CJ 1.3.25 (456?). Particular confusion had been probably created by Constantius’ law of 355 (CTh 16.2.12), which had declared that bishops were to be tried by an audientia episcoporum. The law had originally meant to lend authority to Athanasius of Alexandria’s deposition at the Council of Milan. On criminal cases against clerics see also CTh 16.2.23 (376); CTh 16.11.1 (399); CTh 16.2.41 (412) = Sirm. 15. For the motivations particularly behind Valentinian III’s law see Humfress (2007) 165. Basil of Caesarea, ep. 286 (PG 32:1021): ὅτι τὰ ἐν ταῖϛ ἐκκλησίαιϛ ἁμαρτανόμενα ὑϕ’ἡμῶν προσήχει τὴϛ πρεπούσηϛ τυγχάνειν διορθώσεωϛ. For the ambiguous attitude of the inhabitants of the late Roman empire to the public courts, exemplified in the practice of ‘forum shopping’, see Humfress (2009) 377–391; Humfress (2013) 73–101; also Krause (2004) 80–82.

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to which they were to be submitted at his tribunal, paraphrasing Paul’s Letter to the Ephesians 6.4 on childhood education. The latter, he argued, would ‘make them better’ (βελτίουϛ ποιήσειν), an aspect that public punishment could not deliver. In this chapter we will submit such principles of punishment that ideally were meant to underlie a bishop’s criminal jurisdiction to closer inspection. The chapter will show that Christian writers extended the concept of educative punishment from the classical principle, described in the previous chapter, that foresaw educatice punishment for individuals of special circumstances, to all mankind, based on an understanding of humanity as sinful and ignorant, regardless of the individual circumstances. As we shall see, such rather abstract ideas were developed in dialogue with the expectations of public law, particularly in late antique bishops’ interference with public criminal procedure, of which the above mentioned case of Basil of Caesarea is one example. In contrast to Basil, however, some late antique bishops, such as most famously Augustine of Hippo, played down the differences between public and ecclesiastical law, with one exception: since crimes were also sins, disturbing divine and not just human order, God, rather than a public judge, was seen as the arbiter of discretion, which meant that forgiveness in this life was warranted, even where people seemed undeserving.

Temporal and eternal punishment: emendatio and damnatio Early Christian writers largely thought about Christian punishment as a phenomenon at two consecutive levels, which both had very distinct functions. Any punishment pronounced or endorsed by a church authority was understood to be just an element within the broader system of divine justice that combined forgiveness and vengeance. Punishment in this world, both the one God inflicted for universal sinfulness of men and the one administered by Christian leaders for specific offences, was to lead to an acceptance of guilt. It was a prompt to seek forgiveness and reconciliation. Once this chance to atone had passed, the sinner faced eternal punishment in the next world, which was for the purpose of retribution only.7 This dichotomy was reflected by Latin Christian writers in terminology, which drew on concepts derived from the context of education and child-rearing on the one hand, and public jurisdiction on the other. Punishment in this life was emendatio, diametrically opposed to the 7

See e.g. Didascalia 2.18 (Funk 66); Augustine, ep. 153.3 (CSEL 44:398); Julian Pomerius, de vita contemplativa 1.22.2 (PL 59:438); Humfress (2007) 155–156.

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damnatio of eternal punishment after death, of those who had refused to be educated. Punishment after death, then, could rather be paralleled with Roman public law, focussing, according to Christian authors, on retribution (vindicta) and revenge (ultio).8 In the City of God, Augustine of Hippo placed this distinction between educative treatment in this world and retributive punishment in the next into a larger philosophical framework.9 In this instance, Augustine cited ‘Platonists’ (platonici) who believed that all punishment, both in this life and in the next, should lead to improvement (emendatio), even of those who had not corrected their behaviour during their lifetime. Christians, Augustine explained, did not believe this. Only punishment in this life could have a purifying effect, could be a poena purgatoria. This was a reference to both pagan Neo-Platonists, and Christian Origenists influenced by Neo-Platonist teaching on the cleansing itinerary of souls, who challenged the absence of a change to atone after death.10 The reference also demonstrates, however, that Augustine was familiar with and to some extent accepted Plato’s justifications of punishment during lifetime as a benefit to the wrongdoer. Significantly, he noted the similarities between Platonists and Christians in their focus on education through punishment in this regard, even where Christians thought that the time to improve only lasted until death.11 To describe the first or temporal level of punishment, early Christian Latin writing terminologically picked up on the philosophical discourse of emendatio, which we have already observed in the previous chapters. However, in Christian writers we notice a crucial broadening of the concept beyond that of age, gender and status and also beyond its purely social parameters. In the view of early Christians, human hardship, in the form of disease, accidents, persecution or natural disasters, emanated from the love of God for all men, as the Old Testament taught. It was a form of divine teaching, to remind men of human sinfulness and of the necessity to mend their ways, and as such educative and inflicted with a paternal 8

9 10

11

For particular illuminating juxtapositions of emendatio and damnatio see Ambrosiaster, cor. 1.11.31–1.11.32 (CSEL 81:129–130); Augustine, de exc. urbis Romae 1.4 (CC 46:250); Augustine, en. psalm. 93.17 (CC 39:1317–1318); Augustine, in ev. Ioh. 12.14 (CC 36:129): rursus qui te flagellat in isto saeculo, ad emendationem, non ad damnationem facit. Augustine, City of God 21.11–21.11.13 (CC 48:777–780). van Fleteren (1999) 661–663. On Origenist teaching and its influence on ideas of purgatory that developed in the early Middle Ages, see Moreira (2010) 27–38. On Augustine’s engagement with Plato see Chadwick (1985) 217–230. See also Ambrose, exp. psalm. 18.3–18.4 (CSEL 62:397–398) drawing a similar parallel between Christian teaching and Plato’s, referring, probably, to Gorgias 479d (Loeb 372).

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spirit.12 Early Latin translations (second to fourth centuries) of the Septuagint rendered the Greek παιδεύειν (or any verbs deriving from the root yasar in the Hebrew bible), which denoted these educative activities of God, without fail as emendare, and hence assimilated the relationship of God and all men to that of the Roman father and his dependents.13 In this respect, emendare was often used not only to denote the outcome of punishment, but also the act of punishing itself. We can observe this rhetorical technique particularly in the writing of Augustine, who frequently used emendare as a synonym for ‘to scourge’ (flagellare).14 Augustine’s use of emendare underlined his views on the painful aspects of benevolent paternal instruction, which acted as a metaphor to explain God’s actions and to emphasise the hierarchy between God and man. By calling it emendare the act of punishing did not need any further justification. This terminological overlap can also often be observed in late antique monastic rules, here referring to real-time punitive processes, such as in Caesarius of Arles’ Rule for Nuns, written in the early sixth century in southern Gaul (and strongly influenced by Augustinian thought). While Caesarius acknowledged that emendare could be an individual process of improvement put in motion by admonition, a recalcitrant nun could also be ‘improved’/‘punished’ by more severe measures (gravius emendetur), which, although Caesarius was vague about this, could mean corporal punishment.15 As we have seen in Chapter 1, however, the semantic shift of emendare from ‘reforming’, ‘improving’ or ‘correcting’, similar to 12

13

14

15

Cyprian, ep. 11.5 (CC 3B:61), citing Prov. 3.11: ‘God rebukes (corripit) who he loves and he rebukes to reform (corripit ut emendet) and reforms that he may preserve (emendat ut servet)’. Also see Cyprian, ep. 11.7 (CC 3B:65); Cyprian, mort. 13 (CC 3A:23–24), written in 252/3 on account of the plague; Tertullian, fug. 2 (CC 2:1136–1139), praescr. 27.5 (CC 1:209), pudic. 13.15 (CC 2:1305); Jerome, comment. in Esaiam 1.1.5 (CC 73:11); Ambrose, exp. psalm. 18.3 (CSEL 62:397); Rufinus, hist. 5.28.8 (translation of νουθητεῶ) (GCS 9.1: 503); though also see Rufinus, orig. princ. 1.6.3 (GCS 22:84), here referring to the reform of evil spirits. E.g. Vetus Latina, Psalt. Cas. 117.18 (= Cyprian, testim. 3.57); Vetus latina Ier. 10.24 (= Ps. Cypr. ad Novat. 10), Vetus latina Psalm 140.5 (= Augustine, c. Petil. 2.67); Vetus Latina Prov. 29:10 (= Augustine, ep. 93.17 (CC 31A:170)). For the Hebrew see e.g. Prov. 29:19: Bi-devarim lo-yiwwaser aved, ki yavin veeyn ma`aneh. (I would like to thank Renate Smithuis for her advice on Hebrew). For a particular explicit parallel between God and the paterfamilias see Lactantius, Divine Institutes 4.2 (SC 377:52). See e.g. Augustine, en. psalm. 30.20 (CC 38:189): etiam eos quos emendas, multum amas (‘you love those who you reform/scourge’); City of God 7.30 (CC 47:211): cum sic emendandum et castigandum est genus humanum; also see en. psalm. 93.25 (CC 39:1327); en. psalm. 117.13 (CC 40:1662); for an analysis on the use of emendare in Augustine’s work see also Grossi (1988) 215–222. Caesarius of Arles, Rule for Nuns 12 and 25, following Augustine, praec. 4.11 (SC 345:188, 202). On corporal punishment possibly envisaged for Caesarius’ nuns cf. A. de Vogüé’s comments in SC 345:204– 205. See also, for example, John Cassian, Institutiones, who uses the terminology to describe individual moral improvement of monks (ch. 9.8: procurandum itaque nobis est, ut nostra potius emendare vitia et mores corrigere festinemus) and corporal punishment (ch. 4.16.3: plagis emendantur) (SC 109:374, 142).

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corrigere, to ‘imposing a painful penalty in a benign way in order to improve’ was not limited to Augustine’s or post-Augustine use of the term, but was part of a wider linguistic trend that can be traced back to at least the second century. The Christian take on the term emendatio as an act ultimately reserved to God, however, substantially promoted its usefulness, already noted by classical commentators of imperial rule, to describe punishment of all men, not just domestic dependents and humble people. The most comprehensive expression of Christians’ perception of the aims and procedures of a bishop’s criminal jurisdiction within this larger metaphysical framework can be found in the third-century Didascalia, a text originally composed in Greek, but only known from Syriac and Latin translations. The Latin translation was made in the fourth century, which demonstrates that these guidelines still held relevance in the postpersecution era and for a wider area than that envisaged by the original text.16 The Didascalia referred to the bishop as ‘the physician of the Church’ (medicus super ecclesiam constitutus), modelled on Christ. In the same instance, he was exhorted to love his congregation like his children, to teach them, but also to chastise (castigare) them.17 Christian discourse was inspired by customary paternalistic language when describing the actions of the bishop as a judge, which combined education and healing. He was to operate at the first level of punishment, the temporal one aiming at penance and forgiveness, to address specific sins committed by individual members of his community. His judgement was, however, not finite, but a means to best equip a sinner for final judgement, which belonged to God. Translated into procedural terms, the Didascalia recommended, on the basis of Mt 18:15–18:16, a gradual approach to guarantee the healing and teaching aspects of the bishop’s criminal jurisdiction. Only once reproving the guilty in private to make them perform penance had failed was the matter to be taken before a group of two or three, and only in the last instance before the entire church. At this point, if the guilty still did not confess and agree to perform penance, they were to be excommunicated in a formal ceremony, but only after consultation with the bishop’s priest and deacons.18 Developing Mt 18:7, the Didascalia clothed this procedure into 16 17

18

Harries (1999) 192–194. Didascalia 2.20 (Funk 72, 76). For comparison between bishops and fathers with the duty to discipline see also e.g. Basil of Caesarea, ep. 170 (PG 32:645). The collegiality of ecclesiastical judgement was emphasised also in council canons, particularly where the judgement over bishops was concerned, but also at times regarding offences of minor clerics, for example in North Africa where a density of sees allowed that bishops got together to judge clerical misbehaviour, see Gaudemet (1958) 238.

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conventional medical language, vividly describing the etiopathology of the wound that was sin and the different steps of treatment according to the different phases.19 From the medication of rebuke that would clean the wound from dirt, the bishop was to move on to more powerful drugs, such as the ‘threat of judgement’ if the flesh remained swollen. If gangrene developed and it could not be overcome by the ‘burning’ of penitential fasting, the bishop was to wield his knife and amputate the member after much consultation ‘with other physicians’ (cum aliis medicis).20 As becomes clear from these guidelines, excommunication was a last resort and ideally to be avoided. What this means is that confession even of sins deemed grave (fornication, idolatry, or murder) was not considered as automatically leading to excommunication and public forms of penance. This view was shared by other Christian authorities. Augustine, for example, suggested, also in line with Mt 18:15–16, even for murder or adultery at first admonition in private in order to instill the wish to do penance in these offenders. He opposed this approach to accusing the person in question at the public court.21 In the late sixth century, Gregory the Great often advised his fellow bishops to make use of verbal rebuke in the first instance. For example, in a letter to his bishop friend John of Ravenna, Gregory explained that criminal clergy should be admonished three times if they did not respond to the charges brought against them before more drastic measures were to be taken.22 Penance had to be by necessity ‘public’ only where a sinner had not accepted wrongdoing voluntarily by admonition of the bishop, but had remained obstinate or where a member of the community had brought forward a public charge, similar to that in the public court (iudicia publica), leading to public revelation of guilt and the penalty of excommunication.23 Even in the case of grave sins, then, the late antique penitential landscape is likely to have been very complex and entailed much more than just the highly visible liturgical form of trial, excommunication, penance and public ritual 19 20 21

22 23

On Christian medical discourse see Schipperges (1965) 12–20. Didascalia 2.41 (Funk 131–132). Augustine, serm. 82.8–82.9 (PL 38:506–514); for a list of incidents of excommunication in Augustine’s writing see La Bonnardière (1967) 249–283. See also Basil of Caesarea, ep. 199.34 (PG 32:728) who suggested that adulterous wives should not be submitted to liturgical (and hence visible) penance to avoid exposing them to the prospect of the death penalty after conviction, presumably in a public court. Gregory, ep. 3.54 (CC 140:202–203), cf. ep. 5.8 (CC 140:274–275). See Justinian’s explanation of the term iudicia publica: Publica autem dicta sunt, quod civis ex populo exsecutio eorum plerumque datur ([The iudicia] are called ‘public’ because in general any member of the public may set them in motion’, Justinian, Institutes 4.18.1 (CIC i:55); see Robinson (1991–1992) 91.

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of reconciliation. This conclusion is consistent with the findings of recent scholarship, which has increasingly begun to question the centrality of paenitentia publica in late antiquity.24 Excommunication was also not to be imposed on everyone and could vary. In the case of clerics, some Christian authorities recommended deposition instead of excommunication, which meant loss of office with all associated rights (in particular exemption from taxes and public duties), income and local influence, but not the humiliation of liturgical penance.25 In the Didascalia, excommunication seems to have meant exclusion from the building where mass was performed, but we also hear about ‘only’ exclusion from the Eucharist (including, in the Roman church, assignment of a special, visible place during mass), or about complete expulsion from the community.26 When it came to a trial, the Didascalia explained at length how the personality and morality of both accuser and accused were to be examined and how both were to be heard, to avoid punishing the innocent, something, it claimed, even public judges in murder cases were used to doing.27 As for the public judge, moderatio should underlie a bishop’s sentencing.28 Despite some procedural and philosophical similarities to public jurisdiction, however, the Didascalia made it quite clear that the bishop’s judgement was meant to curb the desire of those who sought vengeance at the public court and particularly of those who longed for the death penalty. Augustine, and others, echoed this by emphasising that Christian punishment was not about vengeance (vindicta) even where public law demanded it.29 He accepted that people wanted vengeance, but argued that most, if they waited a bit and let their anger calm down, would see that leniency was more beneficial. The starkest difference from public jurisdiction was the concept that the imposition of an ecclesiastical penalty was not to be the end of the punitive process, to the satisfaction of the victim or the bishop-judge. It was understood as a step towards penance and ultimately reconciliation with the 24 25

26 27 28

29

De Jong (1997) 993–902; Uhalde (2007) 132–134; Uhalde (2008) 98–120. The earliest is Apostolic Canons 25, probably from the fourth century (= Apostolic Constitutions 8.47; Funk 570–571); see Poschmann (1928) 172–203; Gaudemet (1958) 85, 679–681; Hartmann, W. (1995) 809; De Jong (1997) 873; see also Humfress (2007) 264 on the consequences of deposition, feared by late antique bishops. On practical problems such norms created see further below Chapter 9. Poschmann (1928) 16–17, 91–92; Gaudemet (1958) 253–254. Didascalia 2.49–2.50, 52 (Funk 144–146, 148–150). See also Council of Nicea (325) c. 5; Council of Serdica (343–344) c. 14 (NPNF 2.14:13, 428); Augustine, ep. 139.2 (CSEL 44:150–152). Didascalia 2.14 (Funk 54); Augustine, epp. 100.1 (CSEL 34:536–537), 104.8 (CSEL 34:586–588), 153.8 (CSEL 44:404); en. psalm. 108.4 (CC 40:1586–1587); see also Tertullian, idol. 17.3 (CC 2:1118).

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community, by another formal ceremony, the laying on hands by the bishop, in which the community was meant to plead with the bishop on the sinner’s behalf.30 The Didascalia in fact distinguished between the ‘strictness’ or even ‘anger’ of the judgement and the ‘mercy and compassion’ of the reception after penance (deinde suscipe cum benignitate et misericordia).31 Only if the excommunicated shunned penance entirely, he ‘has been cast out from life and glory everlasting and has become reprobate among men and guilty before God’. Then a sinner experienced true condemnation, damnatio.32 Although late antique church council canons put great effort on writing up suggestions for bishops on the length of penance to be imposed for particular misdeeds, early Christian texts were remarkably unforthcoming on the details of activities a penitent was to undertake during this period.33 The Didascalia recommended days of fasting ‘according to [a sinner’s] offence, two or three weeks, or five, or seven’. Other occasionally prescribed forms of penance included prayers, abstention from sexual intercourse and bathing, as well as almsgiving; the daily inconveniences that underpinned Christian disciplina, as Augustine taught.34 An important aspect of penance was, according to the Didascalia, making people listen over and over again to the Christian truth as a means of instilling shame and teaching good and evil.35 Also Augustine advocated exposition ‘to the continuous hearing of the truth and observing good habits’, although it is not entirely clear in which context this was to happen.36 Yet, the vagueness regarding the features of penance should not surprise. As Kevin Uhalde has excellently described, the basis of a late antique bishop’s spiritual authority to judge were the ideals of discernment: the observation of the spiritual capacities of people in his care, as well as the corresponding discretion in finding the right level and length of the penitential schedule and tailoring penance to the level of devotion in the penitent.37 Penance was of course a voluntary act,

30

31 33 34

35 36

37

Didascalia 2.16; 2.37–2.41, 2.47 (Funk 60, 122–132, 142); on the practice of public penance and reconciliation in late antiquity see also Brundage (1995) 24–25. Didascalia 2.13 and 2.16 (Funk 50, 60). 32 Didascalia 2.47 (Funk 142). See Gaudemet (1958) 253 on church council canons’ prescriptions on the length of penance. Didascalia 2.16 (Funk 62). On penitential activities see also Poschmann (1928) 17–26, 95. On Augustine and disciplina see Marrou (1934) 21–25. Didascalia 2.6 (Funk 42). Augustine ep. 185.13 and ep. 185.30 (CSEL 57:12). Also see Augustine, ep. ad Galatas 56.13 (CSEL 84:132). Uhalde (2007) 10–12; 44–76; 109. See also Poschmann (1928) 28–30.

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but as an act essential to the process of reconciliation after punishment, easily conflated with ecclesiastical punishment itself.38 This focus on the offender, the tailoring of penance to their existing level of morality, as well as the insistence on breaking bad habits, resembled Plato’s demand that punishment should take into account the distorted soul of the offender, as Augustine also noted in the City of God. Yet, the envisaged result of penance was different from that of Plato’s educative punishment, even though both may have been called emendatio by Latin authors. As the early third-century Christian writer Tertullian explained, emendatio through Christian penance meant an acceptance of individual sinfulness that concentrated the mind on the final judgement.39 Most Christian writers, particularly in the West, postulated that God’s judgement could not be anticipated by men. Penance did not return a human soul to virtue or wipe out sinfulness, but gave individuals a second chance at equipping themselves for facing the final judge of their sinfulness. Reconciliation was pardon in the face of guilt. More rigidly minded interpreters of penance hence explained that the opportunity to perform penance and to show one’s spiritual worth in the eyes of God was to be granted only once.40 Consequently, penance was also, in theory, not about social reintegration. At least in the Western Church, the performance of liturgical penance (following a public charge and confession) was frequently described as having lifelong consequences. Ex-penitents were expected to refrain from marrying or resuming sexual intercourse with their spouse and from taking over public office (militia). In particular, they were to be barred from joining the clergy or resuming clerical office.41 Ex-penitents were represented as second-class Christians who had to work hard to regain favour with God, and a symbol of deterrence for the community.42 Yet, the fact that such norms were frequently repeated shows that, in practice, expenitents may not have carried a social stigma, or perhaps decreasingly 38

39

40 41

42

See e.g. Ambrose, in ps. 37.13 (PL 14:1015), who opposed paenitentia, also called poena, with the supplicium of eternal punishment; for further references see Poschmann (1928) 26. Tertullian, pudic. 10.14 (CC 2:1301); paen. 2.2, 6.22 (CC 1:322, 332). For further uses of the term emendatio as the outcome of penance see e.g. Jerome, ep. 96.20 (Labourt, vol. 5:31): paenitentia emendemus errores; Council of Elvira (306), c. 79 (Vives 15; on gamblers): si emendatus cessaverit, post annum poterit communioni reconciliari, see also c. 50 (Vives 10). See e.g. Siricius, ep. 1.5 (PL 13:1137); Poschmann (1928) 57–68. See e.g. Siricius, ep. 1.5 and ep. 14 (PL 13:1137, 1145); Statuta ecclesiae antiquae (475) (CC 168:179–180), 84 (68); Poschmann (1928) 58–59, 62, 101. See e.g. Innocent, ep. 39 (PL 20:606) who described ex-penitents to colleagues in Apulia as qui nec inter laicos quidem dignum locum habere mererentur; Council of Tours (461) c. 8 (CC 168:146): alii eius terreantur exemplo.

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so. In fact, over the course of the late antique period the status of the penitent was substantially heightened, to the extent that even liturgical penance was frequently shouldered voluntarily.43 Even the once-in-alifetime prescription of liturgical penance often seems to have not been heeded, although this was a controversial issue, also in the East, which is often seen as less rigorist than the West by modern scholars, with a greater variety of penitential practices.44 The reason for this shift in attitude was, as alluded to in the Introduction, an emerging vision over the fifth and sixth centuries of penance as the best way to prepare for final judgement and also a way to mitigate possible eternal punishment. As a consequence, those who undertook its most severe forms were widely admired. There was, then, social capital in submitting to an ecclesiastical sentence also for the offender, despite a bishop’s inability – compared to a public judge – to enforce it beyond exerting moral pressure, a point to which we shall return in Chapter 9. Given the reduction of social stigma connected to the performance of penance particularly from the late fourth century on, victims who brought a grievance to the bishop’s court may hence have increasingly been dissatisfied with the outcome of ecclesiastical judgement. It is therefore no surprise that, over time, ecclesiastical penalties came to mimic those of public courts by adding more humiliating methods, such as flogging and demotion, to their customary penalties of excommunication and deposition. By the sixth century, these had become common penalties for wayward clergy.45 Some bishops who advocated flogging could, however, not deny that it was an un-canonical penalty and at times explicitly prohibited.46 Augustine had to deal with a cleric who had been flogged by other clerics, presumably on order by their bishop, for abduction of a Christian virgin and complained to the bishop of Rome, Coelestinus, pointing both 43

44

45 46

This development was already noted by Poschmann (1928) 67–68 and has recently been emphasised again by Uhalde (2007) 114–115 to counter-argue the claim made particularly by Vogel (1966) that public penance became increasingly shunned during the course of late antiquity and reduced to an ecclesiastical penalty only. An important case often cited is that of the Roman lady Fabiola, who in the late fourth century voluntarily submitted to public penance for remarriage (which was not a public crime), see Jerome, ep. 77.3–77.5 (Labourt, vol. 4:41–45); PLRE I, Fabiola, 323. John Chrysostom in his de sacerdotio 3.6 (SC 272:154) argued that repeated forgiveness was open to repeated sin; but he was charged for his view at the Synod of the Oak in 403 (SC 342:100–114); see also Sokrates, Ecclesiastical History 6.21 (SC 505:346), who criticised the practice of repeated forgiveness. On the more medicinal attitude to penance at least in Constantinople see Meyendorff (1983) 196. Vogel (1952) 8–20; Moreira (2006) 149. See Apostolic Canons 27 (= Apostolic Constitutions 8.47; Funk 570–571) for a fourth-century prohibition; see also Dossey (2001) 100–101.

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at his curial rank (which, under public law, exempted him from the penalty of flogging) and at Christian tradition. Coelestinus consequently supported public accusation of his punishers for ‘outrage’ (iniuria). Augustine wrote to his co-bishop Alypius of Thagaste, at whose tribunal this lawsuit was supposed to take place, equipping his friend with rhetorical arguments to back up the defendants’ case. Flogging, Augustine maintained, was justified for some people who evidently did not care about the spiritual punishment of excommunication, ‘either because they are no Christians or Catholics, or live as if they were not.’47 Augustine’s theological take on the case cannot conceal, however, that his and Alypius’ efforts were mainly directed at relieving their unnamed colleague’s embarrassment after having ordered the flogging in the first place. The striking disregard for canonical tradition reflected in the increasing popularity of this penalty may in fact – in the same way as brutal penalties in public law – not have been entirely due to the will of ecclesiastical authorities to exert their power, but also to popular pressure of plaintiffs on ecclesiastical courts to satisfy expectations of retribution and personal satisfaction. Yet, the range of crimes that, according to extant evidence, bishops were called in to judge also suggests that, in turn, some victims approached ecclesiastical courts precisely because they were not interested in the kind of justice a public court could offer. More often than not, in fact, criminal cases dealt with in audientia episcopalis were of a domestic and frequently sexual nature.48 This was the case with the North African cleric’s aforesaid abduction of a nun. From Augustine, we also learn about a lay estate steward of servile status, who was excommunicated for the same crime. He was not flogged, but Augustine approached his landowner to ask that the steward be also stripped of his rank, like a cleric would have been in the same situation.49 Again this shows that bishops felt under pressure to increase the severity of their judgement. Both the case of the cleric and the estate steward, however, involved offences recognised as a public crime (raptus, abduction of an unmarried woman of good standing), but in both cases the plaintiffs, most likely the relatives of the abducted women, had approached the bishop, instead of the public governor, for justice, which, certainly for the estate steward, would have been the more traditional route to take. A public trial, however, would have possibly meant more cost, but 47

48 49

Augustine, ep. 9*.2 (CSEL 88:43–45): maxime propter tales qui excommunicationem ecclesiasticam omnino non curant, sive quia Christiani vel Catholici non sunt, sive quia ita vivunt ut propemodum non sint; see on the case Dossey (2001) 111. For an overview of criminal cases brought to late antique bishops’ courts see Krause (1996) 51. Augustine, epp. 9*, 14*, 15* (CSEL 88:43–45, 83, 84–86).

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also higher public exposure and hence potentially greater public shame for victims’ families, which in the case of offences of a sexual nature that infringed on a family’s honour many may have been keen to avoid.50 It also precluded the possibility of conciliation, particularly where public penalties were death, banishment, or infamy, as was usually the case with sexual crimes. The impact of such considerations on the choice of judge by victims becomes clear in an incident reported in the early fifth century by Palladius of Helenopolis (later Aspuna) in his Lausiac History. Palladius told of the case of a lector, Eustathius, at the church of Caesarea in Palestine, who was accused (falsely) in front of the local bishop of having sexually seduced and impregnated the daughter of a local priest.51 Her father could have brought a public charge of stuprum (illicit sexual relationship with an unmarried woman of good standing), yet approached the bishop. He deposed the lector, but he and the father then allowed Eustathius to marry the pregnant girl, which may have been a solution the girl’s father had envisaged in the first place. In cases such as this, then, families may have sought out non-lethal, less visible and for all parties less shameful redress of misdemeanour through restorative justice arranged by the ecclesiastical authorities, quite apart from considerations about salvation. For Palladius, however, the point of the tale was that the lector, by having embraced his general sinfulness through the acceptance of his unfair punishment, had shown himself in a more penitential spirit and hence more honourable than all other actors of the story.

Merging the aims of public and ecclesiastical punishment: the case of the Donatists Despite a clear rise in the significance of the bishop’s court from the fourth century on, based on acceptance of not only its spiritual, but also its social benefits by offenders, victims and the wider community, demand for ecclesiastical justice cannot be taken as universal in late antiquity. If we are to believe the situation invoked by a law from 395, which ordered that provincial governors should get assistance to deal with petty crimes, such as insults or thefts, the number of criminal accusations before public judges 50

51

As Judith Evans Grubbs has shown with reference to abduction marriage, there may have been many parents in late antiquity who were willing to accept the violator of their daughter as her husband, as legal prosecution, and the public shame that came with it, in effect would have considerably limited her chances of marriage in the future: Evans Grubbs (1989) 65. On the issue see also Evans Grubbs (1995) 212; Harries (2007) 103; and for a later, post-Roman context Rio (2008) 198. Palladius, Historia Lausiaca 141 (PG 1241–1242).

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was still remarkably high in the late Roman period, even for minor offences, despite constraints on cost, time, travel or reputation.52 Late antique church councils frequently reminded even bishops and other clerics not to bring lawsuits in front of the public court.53 These prohibitions again show that late antique victims of crime, even when they were members of the clergy, strived to choose the court they believed best suited their goals. An important incentive for the threat with criminal charges at a public court, rather than seeking a bishop’s judgement, was the possibility to pressurise defendants into financial settlements more effectively, given the prospect of harsh public punishment. It triggered the apparently endemic culture of false accusations (calumnia), and subsequent termination of trials due to (financial) agreement between parties, which both church council canons and imperial laws deplored.54 Another reason for plaintiffs’ preference of the public court must have simply been that they did not always accept ecclesiastical justice as just compensation for wrongdoing.55 Yet, defendants and convicts caught up in public procedure frequently called upon bishops, as well as on other Christian authorities, such as monks, to plead for mercy with public judges. This intercession created another opportunity for Christian writers to define Christian principles of punishment, this time in even more direct dialogue with those of public punishment.56 From the ecclesiastical perspective, we owe our most comprehensive description of the aims of a bishop’s intercession for those in the grip of public jurisdiction to Augustine of Hippo. It needs to be stressed that Augustine formulated his thoughts in a peculiar context, the interference of public authority in an originally inner-ecclesiastical affair of the African church, the so-called Donatist schism.57 This conflict, ignited nearly hundred years earlier over the question of how to deal with Christians who had submitted to imperial authority during the Great Persecution (303-c.313), had entered a new phase in the early fifth 52 53

54

55 56

57

CTh 2.1.8 (395); see Krause (2004) 85. Councils of Constantinople (381) c. 6 (NPNF 2.14:183); Carthage iii (397) c. 9 (CC 149:36); Chalcedon (451) c. 9 (ACO 2.2.2:35–36); Angers (453) c. 1 (CC 168:137); Vennes (461–491) c. 9 (CC 168:153); Orléans iii (538) c. 35 (SC 353:256); Macon I (581) c. 8 (SC 354:432); Macon II (585) c. 9, 10 (SC 354:468–470). Krause (2004) 83. See Harries (2007) 21–22 and Uhalde (2007) 16–43 on calumny and Christian courts. Gaudemet (1958) 270; Harries (1999) 192. For the history of bishops’ judicial intercession see Ducloux (1994); Lepelley (1998) 17–33; Rapp (2005) 226–228. On the background of the schism see Shaw (2011) 66–145.

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century, when some Catholic bishops successfully lobbied the emperor to class the more rigid Donatists (who by this time made up the majority of Christians in North Africa, particularly in rural areas) as heretics. This resulted, from 405, in a string of imperial legislation which declared Donatism a heresy and imposed heavy fines, as well as property confiscations, on Donatists and, from 410, exile of their leaders and even the death penalty, unless they abandoned their worship.58 Honorius also sent the imperial legate Marcellinus to North Africa in 410 to chair a conference between Catholics and Donatists. The aim was to settle their disagreements, which the laws had not been able to resolve. The conference was held at Carthage in June 411 and concluded with Marcellinus confirming Honorius’s anti-Donatist laws. Marcellinus, as well as his brother Apringius, the proconsul Africae, subsequently conducted trials against Donatists who had been charged with violent behaviour in the wake of the conference.59 Augustine famously endorsed the application of Honorius’ heresy laws. At the same time, however, he continuously interceded for convicted Donatists, with the proconsul of Africa Donatus in 408/9, with Marcellinus in 410, with Apringius in the same year, with Macedonius, the vicar of Africa in 413/4 and, in 417, with the military tribune Boniface (later count of Africa).60 What this means is that Augustine, and his Catholic colleagues, had created the necessity for clerical intervention for public convicts themselves on this occasion. This had some repercussion on Augustine’s line of argument in his correspondence, for he had to walk a fine line between persuading the imperial officials to be proactive in the persecution of heresy and fending off the objections of other Christian authorities who resented state interference in ecclesiastical affairs on the one hand, and preventing the forms of public punishment incompatible with the principles of Christian punishment on the other. This balancing act resulted in the clearest expression among Christian writers so far of an attempt to merge the purposes of public and ecclesiastical law, which Augustine did not, as we shall see, represent as the opposites vengeance and forgiveness, but as united in their efforts to teach, albeit on different 58

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CTh 16.6.4 (405); CTh 16.6.5 (405); CTh 16.11.2 (405); CTh 16.5.37 (405); CTh 16.5.38 (405); CTh 16.5.39 (405); CTh 16.5.41 (407); CTh 16.5.43 (= CTh 16.10.19 = CJ 1.9.12 = Sirm. 12) (407); CTh 16.5.44 (408); CTh 16.5.46 (= Sirm. 14) (409); CTh 16.5.51 (410); CTh 16.11.3 (410); CTh 16.5.52 (412); CTh 16.5.54 (414); CTh 16.5.56 (410). Williams (1999) 218–219. Augustine ep. 100 (CC 31A:237–238); ep. 133 (CSEL 44:80–84); ep. 134 (CSEL 44:84–88); ep. 139 (CSEL 44:148–154); ep. 152 (CSEL 44:392–395); ep. 153 (CSEL 44:395–427); ep. 185 (CSEL 57:1–44).

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levels. According to Augustine, public law had its part to play in the learning and healing process that ecclesiastical writing, such as the Didascalia, had for a long time associated with Christian punishment only. At the same time, ecclesiastical procedure had to take over from public procedure at the appropriate moment. Augustine made much of paternal imagery in his correspondence with imperial officials he wished to be proactive against the Donatists. Laws, Augustine wrote to Boniface in 417, were like fathers to undisciplined sons, and God in his mercy had known that the bitter, but ‘medicinal’ terror of the laws and the penalties was necessary for those who would not be educated (emendari) by words.61 Augustine used the example of the father who pulled his little boy by the hair so that he would not play with snakes in a letter to Macedonius in 413/4, to underline the importance of public law’s harshness to bring people to their senses as a necessary stepping stone towards penance and forgiveness. It meant that they did not face God inemendat[i].62 The relationship between public judges and men, like that of God and men, was therefore parental, educational and healing. They participated in the process of Christian emendatio in this life. When Augustine wrote to Donatus, governor of Africa, in 408, he praised the role of judges and laws to cause fear, so that ‘[the Donatists] do not fall into the punishment of eternal condemnation’.63 Also in his exchanges with his Donatist opponents, Augustine stressed the view that Christian emperors and their judges helped to bring about the will of God and that the ‘stern and salutary’ laws were an enticement to return to the Catholic church, in particular in a letter from 408 to his former school friend Vincentius, now a Donatist bishop. Augustine’s concern was, above all, to address the argument, dear to the Donatists and with a long tradition in early Christian thought, that conversion and faith could not be compelled.64 To this, Augustine replied that faith indeed could not be compelled, but fear of the laws at least would stimulate people to inquire about what they did not know. For most Donatists, he argued, 61

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Augustine, ep. 185.7, 26 (CSEL 57:6, 25): sed dei maior misericordia, qui sciret harum legum terror et quaedam medicinalis molestia quam multorum esset pravis vel frigidis animis necessaria, et illi duritiae quae verbis emendari non potest, sed tamen aliquantula severitate disciplinae potest. Augustine here echoed Prov. 29:19 on the punishment of the hardened slave, of which he was particularly fond; for the citation of the Proverb in connection with imperial laws also see e.g. ep. 93.17 (CC 31A:179–180). Augustine, ep. 153.3, 17 (CSEL 44:398, 415). Augustine also used the snake example in his letter to Nectarius, the lay man concerned about legal repercussions after the riots at Calama: Augustine, ep. 104.7–104.8 (CSEL 34:586–588). Augustine, ep. 100.1 (CC 31A:237): ne in aeterni iudicii poenas incidant. On the argument see e.g. Tertullian, scap. 2 (CC 2:1127–1128); for comment Uhalde (2007) 108.

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were Donatists only because of ‘the heavy chains of inveterate custom’, in essence, ignorance. The fear of the imperial laws therefore, in the ideal case, triggered and underpinned a learning process, which was very well in tune with Christian concepts of free will as it led, ultimately, to the voluntary embracement of faith.65 Laws were to be taken as admonitions to reflect.66 Peter Brown has shown that Augustine did not only entertain this concept in his correspondence with imperial officials during the Donatist crisis and after Honorius’ promulgation of anti-Donatist laws, but that it accompanied his thinking from at least the late 390s onwards when he supported the Christian emperors’ repression of pagans.67 Indeed, throughout his work Augustine conflated the legitimate earthly authority of judges, bishops, teachers and fathers through the constant use of the terms emendatio and emendare. These terms underlined the benevolence in their actions, which mirrored (although did not replace) God’s concern for the correction of human sin:68 And whoever educates (emendat) someone over whom he has authority (potestas) with a blow, or restrains (coercet) him through some other discipline (disciplina) (. . .) gives him who he rebukes (corripit) and on whom he inflicts some other reforming punishment (emendatoria poena) a form of charity (eleemosynam), for he shows mercy.69

Augustine had already explained in 402 in his rejection of the teaching of the Donatist bishop of Carthage Parmenian (d. c. 390) that public laws were no different from ecclesiastical procedure, as also excommunication triggered fear and shame and hence confession and the wish to convert.70 This view of the function of excommunication was similar to what the Didascalia had taught.71 Yet, compared to earlier Christian writers, Augustine’s take on temporal authority was wholly innovative. While, as we have seen, Christian authors were wont to use the metaphor of the 65

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Augustine, ep. 93.17–93.18 (CC 31A:179–180): obduratae consuetudinis grave vinculum, see also ep. 185.13 and ep. 29 (CSEL 57:12, 27). See also ep. 185.8 (CSEL 57:7) and ep. 105.11–105.13 (CC 31B:55–57) to the Donatists. Brown (1964), 109–110; see also Brown (1963) 283–305; Russell (1999) 115–130; Brown (2000) 232–233. Other scholars, however, postulate Augustine’s sudden volte-face on the benefits of religious coercion through public law due to the prospect of state support of Donatist persecution from 405 onwards: see e.g. the classic Willis (1950) 127–135; Lamirande (1975), esp. 7–28. On paternal imagery in Augustine see De Bruyn (1999) 249–290; Gaddis (2005) 142–147. Augustine, de fide, spe et caritate 19.72 (CC 46:88): et qui emendat verbere in quem postestas datur, vel coercet aliqua disciplina, . . . verum etiam in eo quod corripit et aliqua emendatoria poena plectit, eleemosynam dat, quia misericordiam praestat. Augustine, ep. Parm. 3.2.13 (PL 43:92); see also Augustine, ep. 133.2 (CSEL 44:32) and ep. 139.1 (CC 31B:291). Didascalia 2.50 (Funk 146).

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punishing father for the relationship between God and men, or between a bishop and his community, they did not suggest (or even vehemently rejected) that the state should inflict painful punishment on Christian subjects. Augustine’s positive attitude towards the latter introduced, as Michael Gaddis noted, a ‘defining moment in church history’ as his writings became an influential apology for violent religious coercion on the part of state authorities.72 Yet, while Augustine suggested coercion of Donatists through evoking the prospect of public punishment, he knew quite well that enlisting public judges also meant risking that they applied customary judicial procedure and the letter of the law. Learning through external pressure it may have been, but it heightened the level of violence involved compared to purely ecclesiastical punishment. It is important to note, here, that Augustine controversially embraced the concept of pain in the process of bringing about confession. In his letters to Marcellinus and to Boniface he condoned the use of pain in torture, as long as it did not lead to death, to obtain confession from Donatist offenders if other methods failed. Again, he used paternal imagery to make the point. He lauded Marcellinus for having used flogging as a form of torture, that method par excellence that fathers and also bishops applied who cared with love for the learning process of offenders.73 Putting a different angle on the question of torture in the City of God, Augustine famously asserted that, since life in this world was imperfect, the methods of even those with legitimate authority were inevitably imperfect too, so torture was an acceptable, if somewhat flawed tool of the public judge to keep peace and order in a corrupt world, which were of paramount social importance.74 In late antique Christian literature, using torture to bring about confession was often something that only ‘false’ Christians did, such as the evil Homoian bishop Germinius of Sirmium, who in 366 tortured the Catholic layman Heraclianus to make him recant his wrong – or, in the eyes of his hagiographer, the author of the Altercatio Heracliani, right – belief, as the pagan persecutors of Christians had done.75 The Didascalia vehemently exhorted bishops not to use force

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Gaddis (2005) 133; cf., however, Brown (1964) 107, who argues that in the early fifth-century Augustine was far from representative or influential yet for general ecclesiastical thinking on this matter. Augustine, ep. 133.2 (CSEL 44:32); ep. 185.21 (CSEL 57:19): melius esse quidem quis dubitaverit ad deum colendum doctrina hominess duci quam poenae timore vel dolore compelli? Augustine, City of God 19.6 (CC 48:670–671); cf. ep. 153.16 (CSEL 44:414–415); and see Markus (1988) 99–100. Altercatio Heracliani (PLS 1:345); see Dossey (2001) 105; also see, for a later period, the Vita Fulgentii 9.17–9.18 (PL 65:125) detailing Fulgentius’ torture by an ‘Arian’ priest.

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or violence (fortiter corripias eos) to obtain confession.76 In Augustine’s mind, however, external pressure and inner learning characteristically went hand in hand, with external pressure understood as a method to initiate learning and hence as an act ultimately of love and benevolence.77 This attitude is at times linked to Augustine’s own boyhood experiences of beating at school, a memory he shared with many other members of the cultured elite.78 Once confession had been obtained through fear of law or pain, however, Augustine lobbied for public punishment to be lessened by, for example, converting the death penalty into exile and fines or, ideally, to be discarded entirely.79 Public laws’ purpose was to restore social order, not to contribute to humanity’s salvation.80 To be sure, Augustine accepted the legitimacy of public punishment, including the death penalty, in principle as a way to keep earthly peace. Killing was justified where it was executed by a lawful authority.81 With this he was in line with other Christian writers. Ambrose of Milan, for example, replied to the public magistrate Studius, who had enquired about the standing in the Church of those who had shed blood in the execution of their duties, that it would be wrong and in fact heretical to deny them communion. He suggested that they stayed away of their own accord. Ambrose therefore did not outright condemn the use of the death penalty, and therefore the public system. Yet, Augustine, Ambrose and others encouraged a merciful attitude, suggesting that officials had a choice whether to mitigate or even to apply public penalties at all.82 According to Augustine, after conviction ecclesiastical procedure should accompany public procedure or even take over entirely. Augustine stressed time and again his worry that Donatists convicted of murder and assault committed during conflicts with Catholics would be punished ‘in accordance with the immensity of their crimes’ or would ‘suffer the sort of punishments they inflicted’, which meant for those who had committed murder the death penalty. He juxtaposed such talionic concepts with that of Christian gentleness (lenitas) and the need to give the guilty a period of

76 77 78 79 81 82

Didascalia 2.21 (Funk 76–78). Brown (1964) 112; Russell (1999) 122; Brown (2000) 232–233. Augustine, Confessions 1.14 (CSEL 33:21); see also Gaddis (2005) 133. 80 Augustine, ep. 185.26 (CSEL 57:24–5). Markus (1988) 95–97. Clark, G. (2006) 138; Augustine, City of God 1.21 (CC 47:23). Ambrose, ep. 50 (25) (CSEL 82.2:56–59); Augustine, ep. 134.3–134.4 (CSEL 44:86–88); 139.2 (CSEL 44:150–152); for similar views see Innocent, ep. 6.3 (PL 20:499); Leo ep. 118.2 (PL 54:1040). For the legal principle underlying such choice see below Chapter 5.

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penance.83 In this context, customary public punishment could become, in Augustine’s eyes, not a stage in educational punishment in this world (emendatio), but a prospect of what eternal punishment could resemble. When in 413/4 Augustine replied to the complaint of the vicar of Africa Macedonius about his intercession for a condemned person, he explained that if the death penalty was applied, the offender would lose every chance to correct their behaviour in this life, and therefore was certain to face endless punishment after death. For both the death penalty and eternal punishment Augustine used the term supplicium.84 It was seemingly just as hard to convince imperial officials of the need to refrain from customary punishment as to take action against Donatists in the first place, judging from the persuasive arguments Augustine resorted to. Paternal imagery again provided the background for suitable moral exhortation of judges. Marcellinus, who in 411 had found two Donatists guilty of the assault and murder of two Catholic priests respectively, was told to carry out his duty as a Christian judge like a loving father and apply stern, but salutary punishment. Although this is not entirely clear, the punishment Augustine suggested as an alternative for the death penalty to Marcellinus may have been forced labour.85 Thus, Augustine was quick to explain to Marcellinus, refraining from the death penalty did not mean that the Donatists were not submitted to condemnation (damnatio) in the public sense, that is, the infliction of a sentence, but their punishment should be more beneficium than supplicium. In the subsequent letters to Apringius on the same case, Augustine even proposed to dispense with public punishment altogether ‘if no milder punishment [than the death penalty] could be imposed’.86 He suggested the same to Macedonius in 413/4, who in particular had expressed concern to Augustine that the replacement of a public penalty with excommunication and penance would give offenders opportunity to escape deserved punishment. On one level public judges may have been concerned about pardoning, as it was an imperial prerogative and therefore risked preempting the emperor. Yet, Augustine’s reasoning also shows that those 83

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Augustine, ep. 100.1 (CSEL 34:536–537): pro immanitate facinorum . . . censeas cohercendum; ep. 133.1 (CSEL 44:81); ep. 134.2: ut eis paria non retribuatur (CSEL 44:85); also see Ambrose, ep. 50 (25) (CSEL 82.2:56–59) for a similar expression of concern. Augustine, ep. 153.3 (CSEL 44:398), in response to ep. 152.2 (CSEL 44:394); also cf. Augustine, en. psalm. 37.3 (CC 38:383–384); en. psalm. 93.25 (CC 39:1327); ep. 100.1 (CSEL 34:536–537); de excidio urbis 1.4 (CC 46:250). Augustine, ep. 133.2 (CSEL 44:82): a malignis operibus alicui utili operi deputentur ‘that they be assigned to some useful work away from their evil works’. Augustine, ep. 133.1 (CSEL 44:81); Augustine, ep. 134.4 (CSEL 44:87–88).

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with a civil education had a deep distrust of indiscriminate forgiveness, for it contradicted the stoic principle that everyone should get what they deserved, which, as we have seen in Chapter 2, underpinned the idea of the discretionary penalty, the true expression of imperial mercy.87 In his letter to Macedonius, Augustine therefore quoted Seneca’s premise that all men did bad things, so they were all in need of love and healing.88 The exact passage is not extant in Seneca’s work, but Augustine’s gloss echoed Seneca’s words about men’s receptiveness to error in On Anger and On Mercy, which had demanded a judge’s mercy in the form of discretionary penalties, but was here turned into a plea for forgiveness of even the guilty.89 Perhaps more importantly, Augustine also explained to Macedonius that pardoning from a public penalty did not mean the forfeiting of punishment, for excommunication would surely follow: For we remove from the fellowship of the altar certain persons whose grave sins are public [i.e. offences which allowed for public prosecution], although they were released from your severity, in order that by doing penance and by punishing themselves they may appease him whom they held in contempt by sinning. For someone who truly repents does nothing else but makes sure that the evil he did does not go unpunished.90

Augustine candidly represented penance as a viable alternative to public punishment. To Apringius Augustine even stressed the retributive element inherent in penance, in the sense that in case of murder a period of penance (spatium paenitendi) was imposed to atone for having deprived someone of part of their life.91 At the same time, as Augustine explained to Macedonius, the punitive element inherent in penance was always and primarily inspired by love and the desire to teach and to heal, but then this also justified public laws, which were part of the same system.92 Overall, the forgiveness Augustine was suggesting was not one that would set an offender free without rebuke and consequences.93 Despite all this, Augustine could and would not mask that there were some crucial differences between his concept of penance and public 87 88 89

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For Augustine’s elaboration on the Stoic idea of pardon (venia) cf. ep. 104.16 (CSEL 34:593). Augustine, ep. 153.14 (CSEL 44:412). Seneca, de ira 2.9.2 (Loeb 184–186); de clem. 1.6.3–1.6.4 (Loeb 374). For full discussion see above Chapter 2. Augustine, ep. 153.6 (CSEL 44:401); cf. en. psalm. 58.1.13 (CC 39:739–740). Augustine, ep. 133.1 (CSEL 44:81); ep. 134.4 (CSEL 44:87–88). Augustine, ep. 153 (CSEL 44:395–427). Augustine, ep. 153.17 (CSEL 44:415); cf. en. psalm. 54.9 (CC 39:663–664).

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punishment. Most importantly, and in a crucial difference also to Plato’s penology, Augustine did not believe that improvement of the offender, and thereby his salvation, could be brought about through human agency. Augustine’s response to Macedonius’s question how often penance for grave sins or public crimes could be repeated, accompanied by the argument that repeated forgiveness might trigger repeated offending, was that opportunity for penance was to be given as often as possible, for it was not for man, but for God to decide who to save; who, to use Plato’s phrase, was ‘curable’ and who was ‘incurable’.94 This was, in view of the teaching that penance for grave sins was to be granted only once, mentioned above, controversial, and Augustine may have felt that Macedonius, clearly used to this teaching, deserved an explanation. Augustine therefore clarified that the principle that penance for grave sins could not be repeated functioned much like the promise of harsh punishment in public laws: it was to deter people from sinning and was to prevent that penance became ‘cheap medicine’. We may recall the words, discussed in Chapter 2, of Africanus in Aulus Gellius’ Noctes Atticae that the purpose of drastic penalties was their rhetorical effect, a concept Macedonius may have been familiar with. However, Augustine continued, where such deterrence had failed, it was still not for judges, who were also sinners, to decide the fate of those who sinned again after penance. People could be cast out, but in this life they had to be given the chance to be readmitted, even as often as necessary. If they wanted to perform penance again, God may still show mercy.95 Man was saved through the grace of God, who was the ultimate physician and father and operated on a premise unknown to humans.96 Augustine’s interventions during the Donatist conflict were unique and not necessarily representative of a late antique bishop’s aims of intercession, as he was seeking to disentangle a home-made complication that not only raised serious theological questions, but also had social consequences. Still, as his thoughts were developed in dialogue with public judges they provide an insight into the type of arguments such men were generally expected to be responsive to. These included, firstly, an appreciation of public law as part of the temporal level of Christian justice, and, secondly, the representation of penance as a form of an educative penalty imposed with a paternal spirit. We do not know whether Augustine was successful in any of the cases of intercession that are attested. Yet, the legal 94 95 96

Augustine, ep. 153.6 (CSEL 44:401), in response to ep. 152 (CSEL 44:392–395). Augustine, ep. 153.7-8 (CSEL 44:403–404). See also Augustine, serm. 13.8 (PL 38:111); also cf. de correptione et gratia 16.49 (PL 44:945); City of God 21.12 (CC 48:778).

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development of bishops’ intercession, to which we will now turn, shows that on the whole public law increasingly came to recognise its value over the course of the fifth century.

Justinian and ecclesiastical jurisdiction While the bishop’s duty to protect those seeking refuge from public authorities was laid down in church councils already in the fourth century, imperial law had initially been reluctant to accept it.97 A series of laws between 392 and 398 attempted to limit clerical and monastic intercession for those awaiting trial in public prisons, which had gone out of proportion in the eyes of emperors and even seemingly had included the bribing of judges.98 Yet, from the early fifth century on, bishops’ intercession began to carry some legal weight, perhaps because the practice was so widespread and popular with defendants and their families, as Anne Ducloux has suggested, or perhaps because bishops like Augustine managed to convince state authorities of the compatibility of public and ecclesiastical law, or both.99 In 419 a law by Honorius allowed bishops to enter the prison ‘for charitable purposes’ (ope miserationis), to tend to the sick, to help the poor and to intercede for those prisoners who were found out to be innocent during these visits, a provision repeated by Justinian in 529.100 While these laws insisted that those benefitting from intercession must be innocent (though quite how this was to be assessed remained unclear), a law from 431, issued in the Eastern empire, spoke matter-of-factly of the right of Churches to grant asylum from criminal prosecution.101 When exactly the state had come to accept the legality of church asylum cannot be established from the succession of laws alone; yet, such an acceptance also meant recognizing the interceding role of church authorities for their charges, which sought to mitigate public penalties. Such acceptance at times resulted, as we shall see further in Chapter 7, in the curious imposition of forced clerical ordination of those who had sought a bishop’s assistance and the safety of a church’s walls. Under Justinian, Roman law saw a number of changes concerning the intercession of bishops for criminals on public trial and criminal 97

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The earliest council defining a bishop’s duty of intercession was the Council of Serdica (343–344), c. 7, Latin recension (NPNF 2.14:422). CTh 9.40.15 (392); CTh 11.36.31 (392); CTh 9.40.16 (398). Ducloux (1994) 59; see also Rosenwein (1999) 37–41. Sirm. 13 (419); CJ 1.4.22 (529). See on these provisions also further Chapter 8. The law in question is CTh 9.45.4 (431). As Rosenwein (1999) 40 has shown the law did not establish church asylum as a legal right, but was concerned with the purity of churches affected by the practice of church asylum, which, nonetheless was presented as an accepted fact.

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jurisdiction of bishops over clergy and laity. In a law dated to 539, Justinian ordered bishops to denounce to the emperor any injustice of public judges, and to co-chair trials in case the integrity of the public judge was in doubt. Most importantly, under Justinian bishops were allowed to settle a criminal case if no public judge (provincial governor or defensor) was available.102 Furthermore, while in 539 Justinian had still confirmed that criminal cases against clerics in principle belonged in a public court, a law from 546 stipulated that clerics and ascetics could be accused of a crime in front of a bishop and the bishop, if he found the person guilty, should divest them of their rank. If the case had first been heard by a public judge (the provincial governor), and the offender had been found guilty, the bishop was to be notified so that he could depose him ‘according to the canons’ (κατὰ τοὺϛ κανόναϛ). The bishop also had the right to refer the case to the emperor, if he did not approve of the governor’s decision.103 Justinian further stipulated, reviving a controversial decision by Constantius I from 355, that bishops were not to be tried by a public judge, either in civil or in criminal matters.104 Justinian’s Novel, therefore, legalised the influence of bishops on public criminal procedure through intercession and their own criminal jurisdiction over (usually) clerics and ascetics and sought to incorporate both into imperial administration.105 As legislation, this was unprecedented, but Justinian was probably merely institutionalising in legal terms practices of intercession and jurisdiction that, as we have seen, had been going on for a long time. Legal endorsement of these practices reflects how greatly bishops’ social reputation had increased by the mid-sixth century. What is most remarkable about this legislation, however, is Justinian’s vision of collaboration between bishops and public judges, particularly when it came to punishment. In the case of a bishop’s criminal jurisdiction of clerics and ascetics, even though Justinian aimed to make sure that correct ecclesiastical procedure was obeyed and recognised the importance of ecclesiastical penalties, that is, excommunication and deposition, a public judge was still required to examine the case and inflict the penalty prescribed by public law (κατὰ τοὺϛ νόμουϛ) on top of the ecclesiastical penalty. Where bishops sat in trial over lay people on an extraordinary basis or co-chaired such trials, where state authorities were absent or deemed corrupt, they were obliged to follow procedures according to 102 103 104

NJust 86.1; 2; 4; 7 (539). NJust 83.1 (539); NJust 123.21.1 (546). See also NJust 67 (538) on bishops as judges over ascetics. 105 NJust 123.8 (546). Constantius’ law is CTh 16.2.12 (355). See Jaeger (1960) 214–262.

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public law (νόμοϛ), which also meant, apparently, that they were expected to employ public penalties.106 As Chapter 10 will show, in practice such ideals of cooperation also required concrete alignment of ecclesiastical and public penalties through legislation. Yet, such concepts of cooperation fitted the emperor’s larger vision of a Christian empire, in which public law and canon law overlapped.107 When we now turn to the justifications of punishment in late Roman law, we shall see that this vision built on an increasing association of traditional expectations of imperial discretion with the obligations of a Christian emperor. 106

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NJust 86.2 (539): ‘trying the case in the regular, formal way and then deciding it and giving their decision according to the law’ (διαγνωστικῶϛ διακρῖναι τὰ μεταξὺ τῶν δικαζομένων, καὶ τύπον δοῦναι τὸν τῶ̣ δικαίω̣ καὶ τοῖϛ νόμοιϛ συμβαίνοντα). See Humfress (2005) 178–179.

chapter 4

Punishment, reform and penance in late Roman law

This chapter investigates the connection between punishment and reform in late antique legal writing. It will show that, on the one hand, to justify punishment as ‘reform’ was a way for late Roman law-givers to float the traditional benefits of the discretionary penalty, detailed in Chapter 2, and in particular to justify light punishment for minor crimes that led to social reintegration and restoration of status without fear of infamy (infamia), a legal status that was applied to all criminal convicts reducing certain civic rights.1 On the other hand, and clearly under the Christian influence that the previous chapter illuminated, even harsh punishment was increasingly presented as educative. Most importantly, signs of moral improvement were at times accepted as justifying remission of a penalty, also for severe crimes. Late antique penal policy has had an ambiguous reception in modern scholarship. Traditionally, historians have been much impressed with the graphic language of late Roman penal laws which often advocated a brutality squarely at odds with modern humane values, and, as some would argue, with classical Roman values as well. A prime example of such new attitudes often cited is Constantine’s refashioning of the crime of parricide. This had at all times been considered a heinous crime, worthy of the death penalty, but in 318/9 Constantine chose to revive a particularly harsh penalty from the time of the Republic, which had long fallen out of use. The parricide was to be sown into a sack and thrown into the sea or a river in the company of a variety of animals, including snakes (in the version included in the Theodosian Code (438)), as well as apes, dogs or cocks (in the version included in the Code of Justinian (534), making a clear reference to the Digest passage citing the ancient custom).2 This bizarre 1 2

On infamy as the usual complement of a criminal conviction see Crook (1967) 83–85; Bond (2014) 2. CTh 9.15.1 (318) = CJ 9.17.1; CTh 11.36.4 (339); Justinian, Institutes 4.18.6 (CIC i:55); cf. D 48.9.9.12 (Modestinus); for the use of the example see e.g. Robinson (2007) 169. For the ‘brutal’ nature of late Roman penalties see also Callu (1984), 313–359.

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prescription sums up quite succinctly the tenor of many late Roman laws, which emphasised, often frantically, the spectacular aspect of punishment and hence its deterrent function, as well as amplifying, often through establishing or returning to a fixed statutory penalty, the classical Roman view on retribution, where severe crimes were seen as deserving severe punishment.3 At times, it was spelled out in detail that deterrence and retribution were the desired purposes of punishment. When Theodosius I in 390 legislated on homosexuality, he prescribed the penalty of fire which had been customary since at least the third century, adding that this was so the people could look on while the offenders purged their crime through the avenging flames.4 Even Justinian, whose penal policies are sometimes seen as less drastic than those of previous emperors, often emphasised the virtues of retribution and deterrence. Perhaps most chilling is his talionic provision that those who castrated other men to turn them into eunuchs should themselves be castrated.5 Echoing the jurist Callistratus’s comments on the exemplary hanging of robbers at the very scene of their crimes, as discussed in Chapter 2, Justinian ordered that corrupt governors should receive punishment, which could also consist in flogging, in the very province they had exploited to set an example for those who may dare to commit such a crime.6 In another law, he claimed that to ‘make better’ (σωϕρονíσαɩ) the majority through witnessing the severe punishment of the few was the ‘highest degree of humanity’ (ϕɩλανθρωπíα).7 Letting criminals escape against payment of a bribe, a habit of corrupt officials Justinian legislated against in 535, seriously undermined the deterrent effect of punishment in his eyes and led to increased misconduct.8 Explanations for this late Roman focus on the visibility and cruelty of penalties have been manifold. Peter Garnsey’s classic long-term analysis of Roman penal law, assessing the theoretical model of Durkheim on the relationship between penal law and political systems already alluded to in the Introduction, comes to the conclusion that the late Roman situation was the end-product of Rome’s political transition to a monarchy with absolutist tendencies and a very hierarchical society. Crimes were penalised 3 4

5 6 7

Harries (1999) 136–137. CTh 9.7.6 (390): huiusmodi scelus spectante populo flammae vindicibus expiabunt. On the thirdcentury situation see Aurelius Victor, Liber de caesaribus 28.6 (ed. P. Dufraigne (Paris: Les Belles Lettres, 1975)), 36. NJust 142 (558). NJust 8.8 (535). On Justinian’s more restrained tone in legislating see Robinson (2007) 169–172. 8 NJust 30.11pr (536). NJust 8.1 (535).

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harshly and publicly because they were always seen as a transgression against the sovereign as source of law, and because the political elite was not interested in egalitarian punishment.9 Other scholars have further refined this sociological perspective by drawing attention to aspects peculiar to the late Roman economic, military or cultural situation. Some regard the laws, and indeed alleged matching courtroom behaviour, as a response to rising criminality due to the impoverishment and alienation of wide sections of society from the late Roman state. Some read the ‘trebling of penalties’ as a reflection of emperors’ anxieties to control an increasingly uncontrollable empire due to endemic internal corruption and external military pressure since the third century. Others again blame the absence of legal experts in the late Roman imperial chancellery for the prescriptions of outlandish penalties with no regard for legal tradition.10 The adoption of Christianity as the emperor’s religion has also been seen as a factor in the rise of harsh penalties. The transformation of his subjects into a multitude of sinners, for whose salvation the emperor as a divine agent became responsible, may have ideologically underpinned the general embracing of harsh, old-testamentarian punishment.11 More recently scholars have come to question this uniform shift towards severe or even cruel attitudes in late Roman legal punishment and have called for a more nuanced view.12 It has been pointed out that many of the penalties ordered in late Roman laws had precedents in earlier times, like the one for parricide cited above, and that hence some legal nostalgia was at play in prescribing them. Furthermore, some particularly atrocious penalties disappeared in late antiquity, such as crucifixion and ad bestias (death in the arena), to be replaced by the gallows which guaranteed a faster and less painful, hence also to the spectators potentially less entertaining or at least less impressive death. The merit of the death penalty in itself was also debated, as we have seen in the case of, for example, Ambrose and Augustine. Methods to avoid the death penalty were a theme that not only bishops, but also imperial officials were interested in, such as Studius, mentioned in the previous chapter, who had approached Ambrose on the matter. Libanius, pagan orator from Antioch and Ambrose’s contemporary, suggested that governors avoided meting out ‘real’ justice due to their Christian-inspired reluctance to apply the death penalty. In Libanius’s eyes 9 10

11 12

Garnsey (1968) 141–162. Rising criminality: MacMullen (1986) 147–166; imperial anxiety: Robinson (2007) 187–193; the quote is from MacMullen (1986) 132; absence of legal experts: Liebs (1985) 89–116. Robinson (2007) 183. Krause (1996) 330–340; Harries (1999) 139–150; Krause (2004) 75–80.

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this was utterly wrong: whoever was squeamish to this extent was not fit to be a governor and in any case endangered public welfare, for ‘by the execution of the guilty some criminal may perhaps be reformed.’13 Yet, around one-hundred-and-fifty years later, Cassiodorus, the Ostrogothic king Theoderic’s Roman chancellor, wrote in his model letter for the appointment of a Gothic count: You have the right of the sword, but nonetheless your sword should be of a bloodless kind . . . Whoever gives a judgement about health, should linger: while other sentences can be corrected, putting an end to a life cannot be changed.14

By the early sixth century, discouragement of the use of the death penalty was hence exchanged between public magistrates as official rules of behaviour, quite without interference from a bishop. These rules may have been motivated by theological grounds, but, as Cassiodorus’s advice to use discrimination and patience shows, also had roots in time-honoured discourses on moderation of those in power. Any discussion of the repressive nature of late Roman law has to wrestle with the question whether late antique laws were implemented as they were formulated. Due to a lack of statistical evidence it is difficult to generalise on this issue, particularly where lower-rank offenders were concerned. Still, as Jens-Uwe Krause has noted, it is unlikely that the late Roman state had the resources or the initiative to pursue all wrongdoing, also because it largely relied on accusations from the public to bring wrongdoing to the attention of the authorities. Even though Constantine allowed for a launch of criminal procedure ex officio, on initiative by magistrates, this procedure was usually reserved for crimes such as treason and heresy.15 Furthermore, as we have seen above in Chapter 3, late antique bishops’ intercession for criminals demonstrates how people in the provinces expected that mitigation of penalties was possible. Whatever the legal basis of this attitude was, a late Roman judge was considered to have wide competences, even in the face of statutory punishment.16 Many of the harsh penalties late Roman laws called upon may therefore have never been applied apart from an uncertain number of exemplary executions to make a statement of 13 14

15 16

Libanius, or. 45.27–45.28 (Loeb 184–186). Cassiodorus, var. 7.1.3 (MGH AA 12:185): habes etiam et ferrum nihilominus incruentum. Claudantur nexibus catenarum, quos levium criminum pulsat invidia. Cunctator esse debet, qui iudicat de salute: alia sententia potest corrigi, de vita transactum non patitur immutari. Krause (1999) 127; Krause (2004) 72, 178. For Constantine’s law see CTh 9.3.1 (320). On the legal authority of a delegate judge to depart from the legally prescribed death penalty see below Chapter 5.

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deterrence, especially in case of treason. This is not to deny that, when they were applied, authorities aimed for the most deterrent effect possible, staging the event carefully. Justinian, for example, was an emperor who made those convicted to death be paraded through the streets of Constantinople. It should be noted, however, that in January 532 such a decision also led to the most dangerous uprising against his reign, the Nika riot. Some judges may have been aware that spectacles of punishment could also backfire.17 Against the background of such partly unavoidable and partly selfimposed inertia of the late Roman state towards social misconduct, the harsh promises of late Roman laws appear in a different light. Before we turn to particular instances where concepts of ‘reform’ entered prescriptions about penal procedure in late Roman laws, it is therefore useful to pause and reflect again on the literary, rather than literal value of late Roman legal terminology.

Late Roman law-texts and education The language of late Roman laws has been described as convoluted, ornate, long-winded or even downright ‘hysterical’.18 Yet, as has been already alluded to in the Introduction, there was method in this stylistic choice.19 Late Roman laws were a prominent way to communicate with subjects (or, perhaps better, to give imperial officials a brief on how to communicate imperial will to subjects) and to represent the emperor as proactive. Their intensive language explained the moral and religious parameters of imperial rule and described how the behaviour of subjects was expected to fit into these. As such, they were meant to overcome the gap the autocratic nature of the late Roman political system had created. They were also a way to cement a Christian emperor’s accountability before God. Even where the legal activity of emperors was a response to a particular suggestion or request from officials or subjects, emperors used the letter of the law to spin a more universal political and constitutional message. For this purpose the late Roman imperial chancellery deliberately employed personnel schooled in rhetoric, at least where the final drafting 17

18 19

On the Nika riot’s trigger by the public parading and execution of circus partisans see Greatrex (1997) 60–86; see also Justinian’s parading of gamblers accused of practising astrology around Constantinople on camels, with their hands cut off: Malalas, Chronicle 18.47 (Dindorf 451); Krause (2004) 78. Robinson (2007) 136. On the method behind the rhetoric of late Roman laws in particular see Honig (1960) 39–41 and Voss (1982) 72–80.

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of the law was concerned, who made use of language that was close to that customarily found in panegyrics.20 As a consequence philosophical principles of good rulership entered the laws. Key imperial virtues like humanitas, clementia, pietas, serenitas or indulgentia were used as personifications of the emperor. It was these virtues that figured in phrases like serenitas nostra decernit (‘Our Serenity notes’) or pietas nostra . . . remedia quaereret (‘Our Piety sought remedies’), which were meant to give the impression that laws originated from the personal ethical disposition of the emperor founded, increasingly, on his special relationship with God.21 Trained in expressing praise, some drafters of late Roman law consciously or unconsciously brought to perfection Plato’s concept that the text itself was meant to have an educative purpose.22 As we have seen, this principle had always been part of the self-awareness of jurists, but in its actual rhetorical realisation had so far been reserved for court oratory, rather than legal writing, although this impression may be due to the accidents of survival of earlier imperial legal texts. In particular, many late Roman laws emphasised the traditions of Roman imperial ideology of the emperor’s paternalistic concern for the welfare of his people, that resembled that of a father or physician, which we already know was a standard feature of panegyrics. As a law issued by Marcian in 450 declared emphatically: It is our concern (cura) to provide for the welfare of the human race (utilitati humani generis).23

Depending on the religious conviction of a law’s drafter, but increasingly so, such a categorical principle was combined with the idea that the emperor was called by God to look after his people, the entire human race (genus humanum), which augmented his responsibility indefinitely.24 Consider this intricate model of human and divine patronage invoked in a law by Theodosius II: When the human race is strengthened through the sources of our support, we believe that the divine benevolence is obliged to us.25 20

21 22 23 24

25

For the schooling of imperial officials such as the quaestor in rhetoric see Honig (1960) 40; Honoré (1998) 20; Harries (1988); Harries (2011); Kaster (1997) 12–14, 130–132 for specific examples of rhetoric teachers and grammarians entering the imperial administration. See e.g. CTh 5.16.31 (408); NVal 7.2 (442). On late Roman drafters of law and their engagement with Plato see also Harries (2011) 345–374. NMarc 2 (450): curae nobis est utilitati humani generis providere. See Honoré (1998) 230–233, with reference to Honorius’ quaestores, on how adoption of Christianity impinged on style. NTh 22.1 (442): nam cum beneficiorum fontibus genus amplificetur humanum, divinam benevolentiam nobis credimus obligari.

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The descriptions of how emperors would deal with wrongs were part of this message. The welfare of the people was based on external defence, inner peace and religious harmony and the laws promised suppression where these values were violated. The ‘brutal’ language of the laws was therefore a signal that the emperor cared and that wickedness which disturbed the virtuous majority of subjects would be eradicated. It was a way to create virtual boundaries between these and deviants.26 In short, it was hoped that the letter of the law in itself would suffise to deter from wrongdoing and as such educate subjects on correct behaviour. Some late Roman authors openly formulated such hope in an attempt to legitimise certain emperors’ more coercive actions. The fifth-century church historian and lawyer Sozomen wrote that, in his view, Constantine’s edict against heretics, issued possibly between 324 and 330, only served the purpose of deterrence, while the emperor did not enforce the harsh penalties prescribed, which included a ban on meetings and property confiscations.27 Other emperors were even candid about such hopes themselves, particularly where the nature of an offence seemed out of step with the harshness of the prescribed penalty. A telling law by Theodosius I from 390 on the punishment of wandering female ascetics hovering around church doors specified that the bishop had the right, and the right to enlist public assistance, to expel them; whether from the church or the city was left open. This provision would have the consequence that those who were in need of reform (emendandis) would begin to fear judgement (incipient timere iudicium) and hence alter their behaviour on their own accord and before they had to be expelled.28 Theodosius II also internalised the philosophical principle that persuasion, rather than punishment, at times furthered the teaching of correct behaviour. He declared in a law on the maximum capacity of grain ships of the year 439 that he preferred re-issuing laws, rather than the painful sting (aculeus) of the penalty they stipulated, as a way to admonish (admoneri) delinquents.29 The letter of the law itself, and its teaching about the consequences of wrongdoing, was hoped to be an effective deterrent. Justinian was equally specific on this issue. A law from 535 on the drawing up of emphytheutic contracts expected notaries to refrain from providing assistance if they lived

26 27

28 29

Honig (1960) 3, 6; Voss (1982) 72; Harries (2011) 363. Sozomen, Ecclesiastical History 2.32.5 (SC 306:374). The edict is cited in full in Eusebius of Caesarea, Life of Constantine 3.64–3.65 (SC 559:448–452). See also Noethlichs (2006) 120–121. CTh 16.2.27.1 (390). NTh 8pr (439). On Theodosius’ reputation for humanity see also Harries (1994) 39.

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in fear of the penalty of exile which this law promised for such wrongdoing.30 Late Roman laws hence expounded in a more embellished form the same principle as that of the poenae metus, proclaimed over centuries of debate on the philosophical justifications of punishment. Theodosius’s I law from 390 on the ‘reforming’ effect of threatening with punishment demonstrates that emendare had become the term of choice employed by legal drafters by the end of the fourth century to describe this relationship between law and education. Yet, while the use of this term may have been enhanced by Christian terminology, the probable drafter of the law was a pagan, Theodosius’s quaestor Nicomachus Flavianus.31 The same quaestor was also the addressee of a letter by the pagan orator and urban prefect Quintus Aurelius Symmachus in 389, which tried to influence new legislation on a question of inheritance and used the term emendatio in a similar way, namely referring to the desired outcome of a threat with harsh sanctions.32 The use of this term by two well-educated pagans was grounded in the traditional, classical discourse about the educative character of law going back to at least the time of the late republic. When we now turn from the rhetorical threat with harsh punishment, understood as leading listeners to refraining from wrongdoing, to justifications of punishment we shall see that, alongside functions of deterrence and retribution, imperial rhetoric entertained concepts of reform not only through the letter of the law, but also through the infliction of punishment itself.

Punishment and reform Late Roman law clearly distinguished between lesser crimes and more serious crimes when it came to prescribing punishment. This, evidently, was also nothing new. Moderate punishment for less serious crimes was also postulated in the early empire as a constitutive feature of discretionary penalties, as we have seen in Chapter 2. The issue may have become more 30

31 32

NJust 7.7.1 (535): δεδιότων τὴν ἀειϕυγίαν καὶ τὸ μηδεπώποτε ἐπανελθεῖν. An emphytheutic contract established perpetual lease of a piece of land that also included tenants’ right to pass it on to their heirs. See Honoré (1998) 63 and 70 n. 137. Symmachus, ep. 2.13.2 to Flavianus (Callu 160–161): si maioris partis deseritur emendatio. Symmachus lamented the alleged leniency of a recent law on the use of a codicil (an informal form of letter), rather than a testament, for the institution of an heir, which had been previously prohibited. The law in question is CTh 4.4.2 (389) = CJ 9.22.24. On Symmachus trying to influence Flavianus’ work as quaestor see Marcone (2002) 183.

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pressing over the course of the second and third centuries, as more and more offences led to criminal charges beyond those established by statutory law against a largely unchanged capacity of the state to prosecute and punish.33 What was certainly unprecedented in late antiquity, however, was the increasing wide-spread use of the terms emendatio and emendare to justify light punishment for small or first-time offences in legal texts (in Justinian’s Greek-language legislation, the terms of choice are σωϕρονισμός and σωϕρονíζειν). Even where penalties remained unchanged, the presentation of punishment as education and cure not only for the young, but also for adults, perceived to be ignorant or misled, became stronger, particularly from the mid-fourth century on. A law issued by Valentinian I and Valens in 365 and addressed to the senate used the term emendatio in the traditional classical context of educative punishment of the young. Minors (those under the age of 25) who had committed offences of a less serious nature and had been publicly accused were, if found guilty, not submitted to public punishment, but sent home to be ‘educated’ under the ius domesticae emendationis held by the family elders.34 This decision was probably meant, in 365, to shield specific senatorial families from the shame of public punishment, but its renewed inclusion in the Code of Justinian also reflects the more general wish of the late Roman state to devolve the responsibility to punish petty transgressions from the public court. Yet, the law continued, if the ‘atrocity’ (atrocitas) of the misdeed in question exceeded the ius domesticae emendationis, a judge should see to punishment. The attribute domestica shows that, at this point, emendatio had become a term that could describe both domestic and public punishment and that, if just the former was meant, it had to be clearly labelled. Indeed, we encounter the term in a multitude of other laws that established non-capital penalties for less serious crimes at both ends of the social scale. For example, Honorius called the penalty of flogging for those of non-curial status iudiciaria emendatio in a law of 397.35 In a law on the holding of praetorian games of 373, Valentinian I told the senate that former praetors who had been convicted of a crime were banned from holding games (as from taking up office in general), but not those ‘who had been corrected through light reform (emenatio)’, presumably fines or short-term relegation.36 What was at stake here was the wish to remove the 33 34 35 36

See above Chapter 2. CTh 9.13.1 (365) = CJ 9.15.1. On the age of minors in Roman law see Perrin (1966) 1455–1465. CTh 12. 1.153 (397): verberibus, si id modo personae eius qualitas patitur, iudiciariae emendationis. CTh 6.4.22.5 (373): qui levi fuerint emenatione correcti.

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stigma of infamy, and hence restrictions on civic life, from those who had committed a less serious crime, to ensure their continuous social usefulness, in this case, the financing of urban entertainment. Infamy would have meant that former convicts could not hold public office, testify in court, conduct legal marriage, transmit their property or bring public accusation themselves.37 As had been laid down as early as at least the late second century, those who suffered temporary penalties were no longer subject to infamy once they had suffered their penalty, but in the honour-based society of the Roman world this exemption clearly needed to be re-iterated from time to time.38 Such principles of restoration of honour can also be observed in another law by Honorius on curiales who had escaped their municipal duties through joining the imperial bureaucracy. Honorius made an oblique reference to earlier provisions, which had allowed such persons, after ‘appropriate education (emendatio)’, probably referring to fines, to return to their curia without consequences for their rank. Honorius abolished these provisions, threatening offenders with capital punishment, the loss of rank and property, unless they returned to their councils within a year. Despite this actual point of the law, the use of the term emendatio shows that here it was linked to light punishment without social consequences for members of the elite.39 Confirmation of the recurrent use of emendatio as a synonym for light punishment of permissible misconduct of the elite can be found in the roughly contemporary Historia Augusta, the late fourthcentury biographies of second- and third-century emperors. The unknown biographer of Severus Alexander (222–235) explained how the emperor dealt with the issue of the removal of boundary stones, which had already vexed Hadrian as we have seen in Chapter 2. The biographer ignored the considerations of levels of education attributed to Hadrian by the Digest and explained that Severus Alexander punished culprits according to their social rank. For some, this meant clubs or rods, but for those of higher rank it meant a verbal rebuke, something the author called a method of education (emendaret). It was an effort to demonstrate the emperor’s humanity by an author who probably held sympathies for the senatorial aristocracy.40

37 38

39 40

Bond (2014) 6–7. D 48.19.33 (Papinian): temporaria coercitio, quae descendit ex sententia, poenae est abolitio (a temporary punishment that originates from a court sentence signifies the abolition of the penalty). See Lovato (1989) 423–437. CTh 12.1.161 (399) = CJ 10.32.51: quamvis provisum fuerat congruae emendationis occursu. SHA, Alex. 51.7 (Loeb 280–282). On the background of the Historia Augusta see Johne (1976) 105–147.

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While in the laws just cited the educative purpose of a penalty only transpires through the terms used, later laws stated this more explicitly. For example, Theodosius II in 439 legislated on the issues of mothers who had failed to appoint a guardian for their children. Previously, these had been stripped of the right to make a will, but the emperor abolished this penalty, explaining: Moderation is desired in all things and most importantly in laws, through which delinquents should be educated (emendari) in proportion to their crimes. For a penalty is neither useful nor should it be observed by judges which exceeds the measure of education (emendatio).41

While the spirit of this law was firmly grounded in the traditional understanding of the retributive justice of the discretionary penalty – matching the penalty to the crime and the circumstances of the offender – it also reveals a notion that excessively punishing ‘permissible’ crimes would prevent offenders from altering their behaviour, something seen as ‘useful’. Justinian made the desired learning effect through punishment even more obvious. In a law from 535, Justinian legislated on the seizure of property through the fastening of notices (τíτλους) to the landed estates of others. The governor was to break the notice in question on the landowner’s, or if he had not been the offender, his steward’s head and submit him to further ‘bitter torments’ (βασάνοις . . . πικραῖς), an expression with a strong evangelical flavour, probably indicating corporal punishment. All this was ‘so that the person to whom this [punishment] is due may learn that it is not allowed to harm our subjects neither personally nor through followers’. Fixing labels to the property of others was an old crime, on which Arcadius had already legislated in 400. Yet, while Arcadius, at least in the version preserved in the Theodosian Code, had quite soberly declared the penalties to be infamy for the owners, and flogging with lead-tipped whips for the stewards, Justinian apparently felt the need to explain the educative rationale behind the punishment further.42 Justinian’s laws, then, in particular picked up on the age-old premise 41

42

NTh 11pr. (439): cum in omnibus rebus tum vel maxime moderamen desideratur in legibus, per quas delinquentes pro qualitate criminum convenit emendari. Nec enim utile est vel a iudicibus observandum, quod modum emendationis excedit. NJust 28.5.1 (535): ὥστε ταῦτα μανθάνοντα τὸν ᾧ προσήκει προσώπῳ γινώσκειν, ὡς οὐκ ἔξεστιν οὔτε δι’ἑαυτοῦ οὔτε διά τινων δορυϕóρων . . . τοὺς ὑπηκόους ἀδικεῖν. On the meaning of βάσανος as ‘torment (of hell)’ see Mt. 4:24; Lk. 16:23 (eds. B. F. Westcott, F. J. Hort (Peabody, Mass.: Hendrickson, 2007) 11, 228). Arcadius’ law is CJ 2.14.1 (400). Compare also NJust 12.1 (535), prescribing flogging for those of lower-rank who entered incestuous marriages ὅπος ἃν μάθοι σωϕρονεῖν καì εἲεω τῆς ϕύσεως μένειν.

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that lower-rank and hence ignorant individuals best ‘learned’ through the submission to painful punishment. Yet, Justinian equally extended the language of education to the punishment of higher rank offenders, including clerics. Those who had donated gifts to support the activity of Montanists, as well as imperial officials who let this happen, were to be ‘chastened’ (σωϕρονíζεσθαι) by a fine of ten pounds of gold for both donators, the emperor legislated in 530.43 Clerics who compelled lay men to bring a share of their harvests to church should be deposed and ‘chastened’ through a civil fine (σωϕρονíζεσθαι). Educative punishment worked reversely, too, on lay people who disobeyed church orders. Heirs who refused to carry out the wishes of the testator after having been called upon by the bishop (an example of the rising role of the bishop in the administration of civil contracts) were to be ‘chastened’, again through a fine (σωϕρονíζεσθαι).44 Minor crimes were hence often to be dealt with through painful bodily punishment, short-term relegation, or persuasive fines depending on social rank of the offender, as had traditionally been the case. Such penalties now came to be called ‘educational’, representing such measures as part of the emperor’s paternal concern for his subjects. Again, an influence by the Christian usage of the term emendatio on the actual language of those provisions issued in Latin may be postulated. Yet, it should be noted that the terminology of education through punishment, linked to that of imperial mercy and fatherly compassion for the subjects of the empire, may not have been alien to pagan drafters of law in the late Roman imperial chancellery either. When the Diocletian jurist Aurelius Arcadius Charisius described the duties of the Praetorian Prefect – a post endowed with exceptional powers during the administrative reforms of the early fourth century – he already mentioned that among them was ‘improvement (emendatio) of public discipline’, a reference to the judicial and penal competences of the office.45 Both the subject matter and its commentator make it unlikely that the choice of terminology was inspired by Christian discourse; rather, they are another example of the increasing extension of the term, and the concept it represented, from the domestic to the public realm that we have already observed with the jurist Julius Paulus in the early third century in Chapter 2.46 The very first time we encounter the term emendatio as referring to punishment in an actual law text is under 43 45

46

CJ 1.5.20.7 and 1.5.20.8 (530). 44 CJ 1.3.38.5 (unknown year); CJ 1.3.45.7a (530). D 1.11.1pr. (Charisius): data est plenior eis licentia ad disciplinae publicae emendationem. There are no concerns about later interpolation recorded in this case. See above Chapter 2.

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Valentinian I, who legislated on the holding of games by praetors convicted of a crime, hardly a Christian topic.47 It can be expected, therefore, that the terminology of Christian discourse and of imperial paternalistic discourse developed in parallel, and, when emperors came to represent themselves as preservers not only of public, but also of Christian morals, started to influence each other. Christian discourse gave the term emendatio a new, metaphysical meaning, which helped to link the emperor’s concern for social order to salvation. This may be reflected in the choice of terminology adopted by the drafters of Justinian’s Greek laws (σωϕρονισμός, σωϕρονíζειν), although it should be noted that laws employing the term also originated from a period when Justinian’s quaestor was the possibly pagan, but certainly classically minded Tribonian.48 In contrast to minor crimes, however, at least in the legal literature, emperors often stressed that those who committed misdeeds of a serious nature were to be excluded from curative treatment. Justinian, in a law from 536 on the duties of the governor of Lycaonia, classed these as beyond hope, opposing them to those who had committed lesser crimes, which left hope for their ‘conversion’: The magistrate must hate and punish all cases of adultery, even more homicide and above all the abduction of virgins. He must immediately punish the unjust (τοὺς ἀδικοῦντας), who are, as it were, inflicted by an incurable disease (ἀθεράπευτα νοσοῖεν); but if they are only slightly [sick] should convert them to the better.49

Justinian did not specify of what this ‘conversion’ consisted, but it was likely fines, short-term exile or beating, depending on social rank. Most importantly, it ensured readmission to social life, which capital punishment did not. The latter was reserved for those who committed serious offences. Justinian’s was not the only late antique law that employed language describing the pathology of serious crime. We can observe this technique particularly in laws on heresy from the Theodosian age, which developed an image of the heretic as the marginalised ‘other’ to cement orthodox 47 48

49

CTh 6.4.22.5 (373): qui levi fuerint emenatione correcti. On Tribonian and his classicizing, learned and literary style see Honoré (1978) 70–132, but Honoré also comments on the difficulty of identifying Tribonian’s authorship of Justinian’s Greek laws. The term σωϕρονíζειν recalls Plato’s concept of punishment as healing by the wise law-giver, see their use in e.g. Plato, Gorgias 478d (Loeb 368); Xenophon, Cyropaeideia 8.6.16 (Loeb 416) and above Chapter 1. NJust 25.2.3 (536): καὶ τοὺς ἀδικοῦντας, εἰ μὲν ἀθεράπευτα νοσοῖεν, καὶ καθάπαξ κολαζέτω, εἰ δὲ μετριώτερα, πρὸς τὸ κρεῖττον μεθαρμοζέτω.

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identity.50 Heresy was ‘madness’ (dementia, furor), an expression of ‘polluted contagions’ (polluta contagia) and ‘contamination’ (contaminatio).51 Yet, while we find the rhetoric of disease and pollution mostly in contemporary discourses on heresy, framing crimes in this way also went beyond religious deviance. For example, an amnesty law dated 381 talked of the ‘madness’ (furor) of the parricide, and the ‘stain’ of the murderer (maculatus est), justifying their exclusion from imperial mercy.52 The imperial law that announced the exile and property confiscation of the eunuch and imperial chamberlain Eutropius, convicted of treason in 399, mentioned his ‘repulsive filth’ (taetra illuvie) and lamented that he had defiled the consulship by his ‘contagion’ (contagione), as well as ‘polluted’ (polluit) the dignity of the patrician rank.53 Such descriptions were not entirely new in late antiquity, for already Cicero had used the terms furor and rabies to refer particularly to treason, and of course, as we have seen, Plato had called serious and repeat offenders, who had to be cast out or put to death, ‘incurable’. These were the ‘unjust’ (τοὺς ἀδικοῦντας), a term strikingly echoed by Justinian in 536.54 The drafters of late Roman laws drew on this common terminology, which by this time had fused with the Christian representation of sin as disease, that, as we have seen in the previous chapter, in turn had been much influenced by the conventional Platonic medical metaphor.55 As we shall see more in detail in Chapter 7, such late antique perspectives led to the framing of penalties, in particular of exile, as a way to purify society. However, also in the context of serious crimes the language of late Roman laws frequently remained medicinal and paternalistic. Punishment for these often was phrased as ‘reform’ as well, continuing with the concepts of sickness, ignorance, healing and education. For example, Honorius explained in a law issued in 399 that Manichaeans should be sought out and ‘checked through suitable and very severe reform (emendatio)’.56 In 527 Justinian echoed this provision by declaring that those who followed the teachings of Nestorius, Eutyches and Apollinarius 50 51

52 53 54 55

56

On this technique see Le Boulluec (1985). CTh 16.5.6 (381); CTh 16.5.13 (384); CTh 16.5.14 (388); CTh 16.5.20 (391); CTh 16.5.32 (396); CTh 16.5.34 (398); CTh 16.2.35 (400/405) = CJ 1.3.14 = Sirm. 2; Sirm. 6 (425). See Zuccotti (1992) 233–259. CTh 9.38.6 (381). CTh 9.40.17 (399); see Escribano Paño (2009) 39; PLRE ii, Eutropius i, 443. Opelt (1980) 93. On Plato see above Chapter 1. On the origins of the legal rhetoric see also Escribano Paño (2009) 39–40. On Christian ideas of heresy as disease and madness see also Opelt (1980) 68, 119–120, 222, 226–227. CTh 16.5.35 (399): congrua et severissima emendatione resecentur. CTh 16.5.9 (382) had ordered the death penalty for Manichees, or at least their priests.

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should undergo ‘moral improvement’ (σωϕρονισμός).57 In the nearly contemporary Latin translation of other Justinianic laws, verbs employed for describing the act of punishing crimes such as murder or abduction included emendare and corrigere.58 Punishment even in its harshest form was represented as in some way salutary to the moral improvement of the offender. In these laws, the exact punitive form such ‘education’ would take remained remarkably vague, perhaps deliberately so. The laws suggest, however, that punishment even for serious crimes did not have to be by necessity lethal. Sometimes it was even a sub-capital sentence that was prescribed, at least in the first instance, as a Theodosian law from 392 on heretics in Egypt made clear: Deportation is justified for anyone who, not admonished by the general law and not educated (emendatus) by an appropriate judgement, continues to disturb both the Catholic faith and the people.59

This law expressed the hope that people were deterred from misbehaving by the promise of punishment through the letter of the law, and, if this was unsuccessful, by moderate punishment, even in the case of serious crime, such as heresy. We do not know what the ‘appropriate judgement’ would have been that Theodosius envisaged, but it might have been flogging or expulsion from the city (without the loss of civic rights). The harshest penalty envisaged, when everything else failed, was deportatio, banishment with loss of civic rights. In the context of punishing serious crime, any notion of ‘education’ (as expressed in Honorius’ law above) through non-lethal punishment could, however, technically only mean individual moral improvement, rather than social reintegration and the restoration of honour. Capital punishment that avoided death, such as deportation or hard labour (metallum), was meant to be life-long and hence irreversible, regardless of the effect on a convict’s personal moral outlook. Such social reintegration also in the case of serious crime could, however, come through imperial pardon, to which we will now turn.

57 58

59

CJ 1.1.5.4 (527). NJust 17.5 (535): . . . μετὰ σϕοδρότητοϛ μετελευση̣/cum vehementia corrigis; NJust 143 = 150 (563) on raptus: poenis corrigi (the law is only extant in Latin); Justinian, Edict 8.2 (548), on granting governors the ability to pass capital sentences: προσηκούσαιϛ μετελθεῖν τιμορίαιϛ/emendet suppliciis. The Latin version is that of the Authenticum. CTh 16.4.3 (392): deportatione dignus est, qui nec generali lege admonitus nec competenti sententia emendatus et fidem catholicam turbat et populum.

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Roman legal texts discussed two forms of imperial pardon: one that led to the suspension of a trial and one that led to the abandonment of a penalty, after conviction.60 It is important to distinguish between these two forms, because it was only in the former case, during trial, where, in late antiquity, a fully developed legal principle was established, that ‘reform’, expressed through the submission to ecclesiastical penance (paenitentia or μετάνοια), provided the grounds for imperial pardon, at least for a number of welldefined crimes, such as heresy and, under Justinian, homosexuality. It was far less defined what mechanism could lead to an imperial pardon after conviction. Traditionally, pardon after conviction was linked to imperial clemency and hence was not an automatic process that could be put in motion by ecclesiastical penance or any other demonstration of a convict’s compunction.61 Increasingly, however, and particularly under Justinian, signs of moral improvement of the convict were at least alluded to as a reason to pronounce pardon. Amnesties had always been key methods to demonstrate the imperial virtue of clementia; yet before the fourth century they had traditionally been pronounced on an irregular basis, for extraordinary events like the birth of an imperial child or the defeat of a usurper.62 While this practice continued throughout late antiquity, at least from the second half of the fourth century on imperial pardons also became regular, annual events at Easter, both for those awaiting trial and for convicts. The laws made very clear, however, that such leniency usually excluded those who were accused of crimes which deserved capital punishment, such as homicide, magic, adultery, treason, abduction or heresy, and those who had reoffended after an earlier pardon and were again charged with a crime.63 Still, properly applied, these laws meant that many who were accused or convicted of a crime not worthy of capital punishment could be certain that they would be free at the following Easter and, if we are to believe the rhetoric of the 60

61

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The classic study of pardon in Roman law is Waldstein (1964); see also Stini (2011) 137–139, particularly for clarification of the distinction. The following discussion is very much indebted to Uhalde (2012) and a personal discussion I had with Kevin Uhalde following this paper. These discussions first drew my attention to the distinction between pardon before and after conviction and corresponding ideas about reform and penance. Lovato (1994) 202–206; Brown (1997) 1251; Harries (1999) 151; Krause (2004) 79–80. CTh 9.38.1 (322; extraordinary pardon); 9.38.2 (353/4; extraordinary pardon); 9.38.3 (369); CTh 9.39.4 (370); Sirm. 7 (380/1); Sirm. 8 (386); CTh 9.38.6 (381) = CJ 1.4.3 (385); CTh 9.38.7 (384); CTh 9.38.8 (385); CTh 9.38.10 (405) (extraordinary pardon?); CTh 9.38.12 (410?; extraordinary pardon), Cassiodorus, var. 11.40 (MGH AA 12:353–355); on late Roman Easter amnesties see also Mitthof (2013).

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laws, often during the course of the year as well. All of this certainly undermines any notion of the late Roman state as overly repressive. Rather, again, it seems as though the state was seeking to get rid of the burden to investigate and punish petty misbehaviour.64 While regular amnesties focussed on less serious misdemeanour, late Roman laws from the time of Honorius also allowed for abolition of a trial investigating more serious crimes following a tangible, public confession and expression of guilt, which permitted the offender to avoid capital punishment. We encounter this procedure for the first time in the context of the Donatist schism. In 405 Honorius legislated that Donatist priests who had administered second baptisms were to be declared infamous, losing the ability to make testaments or contracts, ‘unless they corrected the error of their distorted mind by returning to the true faith through reform (emendatio) of their intention (consilium)’.65 A few years later, in 407, Honorius was more explicit on how this ‘reform’ was to be established in administrative terms: Although it is customary to purge crimes through punishment (poena), we still want to reform (emendare) the distorted wills of men through an admonition to penance (paenitentia).66

According to this law, Donatists were still subject to the general heresy laws directed against them, but they were ‘absolved from any guilt’ (ab omni noxa absolvendos esse censemus) if they submitted to Catholic faith and rite through a simple confession of God (simplici confessione). Such confession, even when made under torture, was sufficient for discarding an accusation (annulatio). In the same year Honorius also stipulated that heirs of convicted heretics could not receive their inheritance ‘unless they abandon the depravity of their fathers (nisi a paterna pravitate discesserint) . . . , for we give pardon to those who repent of their wrongdoing’ (delicti enim veniam paenitentibus damus).67 Such heirs were clearly not formally accused of heresy, let alone convicted, but could not inherit due to the conviction of a capital crime, and hence infamy, of their fathers. In 412, Honorius repeated his laws against the Donatists, but added that all Donatist priests, clerics and laymen could avoid punishment if they returned to the Catholic 64

65

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Regular amnesties in the course of the year: Sirm. 7; see on this interpretation of late antique amnesties Krause (1996) 218–222; Krause (1999) 128. CTh 16.6.4.3 (405): nisi pravae mentis errorem revertendo ad veram fidem consilii emendatione correxerint. CTh 16.5.41 (407): pravas hominum voluntates admonitione paenitentiae volumus emendare. CTh 16.5.40.5 (407).

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church on issuance of the law.68 A similar promise to quash conviction, in this case to exile, after a confession of the Catholic faith within twenty days was also expressed in a law by Valentinian III from 425 that dealt with Pelagian bishops in Gaul and declared itself confident that, under these circumstances, they would be reformed (emendari). It also banished other heretics ‘unless a timely reform (emendatio) comes to their aid.’69 The idea that legal punishment could be avoided if Christian penance was performed also appears in Justinian’s legislation. As Justinian explained in a law in 527, heretics who had strained imperial patience by not ‘reforming’ (σωΦρονὴσωσιν) voluntarily now had to endure the full power of the ancient laws.70 This suggests a similar arrangement of penance as a method to avoid punishment as in the early fifth-century laws. In fact, the sixth-century Life of Symeon Stylites, describing the prosecution of pagans and heretics at Antioch in the 550s, reported that, by imperial order, those charged were released, if they publicly repented.71 However, Justinian also extended this method beyond the crime of heresy. Two notable laws on homosexuals expressed at length the benefits of penance for such wrongdoers. The first, issued probably in 538, explained that homosexuals were given the chance to repent ‘as the philanthropy of God does not desire perdition, but conversion and salvation, and receives offenders who have been corrected’, a paraphrase of Ezekiel 33:11. Appropriate punishment, the death penalty, would be inflicted only if they persisted in their misbehaviour after publication of the law. The second law was a follow-up from the previous one about twenty years later. Here the emperor ordered a formal channelling of the penance suggested in the earlier law. After again invoking God’s wish for conversion (’επιστροϕή) Justinian explained that it was not enough simply to refrain from sin, but that offenders must confess their guilt to the patriarch of Constantinople and perform penance (μετάνοια), otherwise legal punishment would be inflicted. This time the penalty prescribed was apparently not death, however, as Justinian excluded convicts from imperial amnesties.72 A third law by Justinian should perhaps be seen in the same context. It concerned procurers of prostitutes, for whom, as the law specified in the preamble, no time for ‘penance’ was provided.73 This may have been a 68 70 71 72

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CTh 16.5.52pr (412). 69 Sirm. 6 (425) = CTh 16.5.64: nisi his emendatio matura subvenerit. CJ 1.5.12pr (527). Life of Symeon Stylites 164 (ed. P. van de Ven (Brussels: Société des Bollandistes, 1962), 146). NJust 77pr. (538?): τὴν ἐπιστροϕὴν καὶ τὴν σωτηρίαν βούλεται, καὶ τοὺς πταὶσαντας καὶ διορθουμένους δέχεται ὁ θεόςˊ; NJust 141.1 (559). Also see Justinian, Institutes 4.18.4 (CIC iii:55). NJust 51.pr (536) μεταμέλου καιρόν.

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throw-away remark, emphasising the severity of the emperor’s position, but could also be an indication that people in the sex industry expected some sort of structured amnesty if they showed remorse through penance, but were now by law denied it. It is unclear whether those accused of homosexuality at the time of Justinian ever took up the prospect of avoiding criminal prosecution by submitting to penance. In his scathing assessment of Justinian’s reign, the Secret History (written c. 550), Procopius of Caesarea claimed that the emperor used these laws to prosecute members of the senatorial aristocracy for offences committed before the laws had even been passed. Like everything else Justinian did according to his Secret History, in Procopius’ eyes it was a scheme to get his hands on the wealth of aristocratic convicts.74 From the more sympathetic contemporary chronicler Malalas we know that two bishops, Isaiah of Rhodes, a former praefectus vigilum, and Alexander of Diospolis in Thrace were prosecuted for homosexuality in 528, although he also admitted that this happened before Justinian issued the laws, after which date even many more were found guilty.75 Apparently, the penalty for these was not death, as it had also not been for the two bishops: Isaiah was exiled, and Alexander castrated and publicly paraded. Neither Procopius nor Malalas mentioned Justinian’s provision for penance, although Malalas seems pleased to announce that after the castration of some convicts those ‘suffering of desire for men’, a disease, as it were, lived in terror of the laws.76 For Malalas, at least, a learning effect had been established, even though it had not been documented by a public confession of error. Justinian’s laws on homosexuality and the fifth-century laws on heresy were partly born from a wish of the authorities to allow offenders an escape route, particularly where they were members of social elites, which the Donatist leaders and those who Justinian suspected of homosexuality apparently were, albeit on different levels. This was neither new nor Christian. During the first three centuries of the empire generations of Roman officials had sought to prevent Christians’ route to martyrdom and 74

75

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Procopius, Secret History 11.34–11.36, 16.18–16.23 (Loeb 140, 194). Contrary to earlier legislation, Justinian’s laws considered both active and passive homosexuality as a crime, that is, criminalised not only male prostitutes, but also their (potentially aristocratic) customers; see Krause (2004) 183–185. Malalas, Chronicle 18.18 (Dindorf 436), see also Theophanes, AM 6021 (de Boor 177) who dates the punishment of the two bishops in the reign of Justin; see further Boswell (1981) 171–173, who rigorously rejects any notion that Justinian’s laws were influenced by church policy, citing instead Justinian’s provincial outlook on sexuality. Malalas, Chronicle 18.18 (Dindorf 436): τῶν νοσούντων τὴν τῶν ἀρρένων ἐπιθυμíαν.

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its potential for social unrest in this way, to establish universal consent without victimising a minority.77 This was at times even couched in the same language as that of the fifth-century laws, as can be observed in Pliny’s famous exchange of letters with Trajan while he was governor of Bithynia and Pontus in 111 ad.78 In this troublesome province, some people had been anonymously accused of being Christians. Unsure how to proceed with these, Pliny made them sacrifice to the image of the emperor and statues of the Roman Gods to determine whether they were indeed Christians or not. In his letter to the emperor, he described and defended this line of action and suggested to extend it further, for he believed that through this method ‘a mass of people could be educated (emendari)’ if they could make an outward sign of their ‘change of heart’ (paenitentia) through sacrifice. Trajan famously replied that, while he supported the sacrifice test for those who had been accused and their paenitentia testified by the sacrifice should indeed be followed by pardon, Pliny should not seek out Christians of his own accord. Abandoning a trial on a public expression of ‘reform’ hence was not unheard of before the early fifth century. There are, however, a number of differences between earlier incidents and those recorded under the Christian emperors of the fifth and sixth centuries. It was under Honorius that the practice was first laid down as a legal principle, rather than an ad-hoc approach to a specific situation, as in the incidents under Trajan just cited. Furthermore, ‘reform’ was now linked not only to performing a set of rituals, but to a public expression of guilt and acceptance of the stigma of sin that followed the directive of those who had been declared orthodox, the Catholic church. It was not just ‘outward’ behaviour that was to be scrutinised, but also ‘inward’ disposition.79 It is unclear whether according to the fifth-century laws heretical offenders had to make their confession and express their Catholic faith in the presence of a Catholic bishop, although the unusual employment of the term paenitentia in a law text makes this seem likely. Hitherto, Roman legal writing (although, as the case of Pliny shows, not necessarily Roman administrative language) had used paenitentia exclusively in the context of individuals who were seeking to abandon a private legal contract due to a ‘change of heart’, an entirely different scenario than the one described in Honorius’ law and something that was also prohibited. It may, hence, be the 77

78

Thompson (2002) 27–52; Rives (1996) 1–25, who notes the unusual harshness of Hilarianus, the judge in Carthage who condemned the young Christian matron Perpetua to death in 203, when compared with the behaviour of other Roman governors towards Christians. 79 Pliny, epp. 10.96–10.97 (Loeb 290–292). Noethlichs (2006) 125.

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ecclesiastical, rather than the legal term paenitentia that was employed here.80 The same may be true for the term emendatio, which seems to have been understood in the Christian sense, of mending the relationship with God. One may suspect that, given the nature of these laws as responses to petitions and lobbying particularly by the African catholic bishops, that the latter had some input into their wording, as well as into designing the ‘penitential’ process that allowed Donatists to avoid public punishment.81 In Justinian’s second law it was clearly the bishop who was responsible for overseeing the entire procedure, subsumed under the formal term of μετάνοια. Even more remarkable, however, is the extension of such treatment from offences committed in the religious sphere in the fifth century to those of a sexual nature by the sixth, such as homosexuality. Under Honorius pardon after penance had been afforded for a crime closely linked to the Christian faith. By the sixth century penance had become a tool of emperors to engineer moral behaviour more broadly. Honorius’, Valentinian III’s and Justinian’s laws are a striking expression of the increasing collaboration between church and state, where penance became integrated into public criminal procedure. Yet, while there was, therefore, a clear Christian influence on public law, education was not linked to punishment, but to what preceeded it, and in essence again to the fear of the penal consequences of the law, which was a conventional aspect of imperial rhetoric. Honorius’s law of 40782 was an articulate statement of distinction between punishment and penance, and their respective aims. The purpose of the law was to allow for penance, that is, to defer decision about punishment to God, but also to remind that the wicked, those who did not submit to penance, would be punished harshly in this world and by public law, something that would also be ‘of support’ (suffragium) for right worship. A statement in Justinian’s first law on homosexuality makes clear that it was both the spiritual growth of the sinner and the interests of the community that were at Justinian’s heart. The Urban Prefect of Constantinople was exhorted to rigorously prosecute those who, after having been given the opportunity to repent, still committed the crime of homosexuality, ‘in order that this city and the state may not be injured by the contempt of such persons and their impious 80

81

82

In the Digest the meaning of paenitentia concerns without fail the ‘change of heart’ and the wish to undo legal contracts, see e.g. D 2.14.46 (Tryphoninus); D 50.12.3.1 (Ulpian); D 17.1.27.1 (Gaius). See on the classical meaning of the term also above Chapter 1. See Harries (2011) 363 and 373 on the input of those who had the emperor’s ear on legislation, in particular concerning heresy. CTh 16.5.41 (407).

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acts’.83 The sinner who avoided penance was therefore not left to face God’s trial; instead, public punishment, in the form of the death penalty, stepped in to complete justice for the sake of the community. In turn, demonstrating ‘reform’ or submitting to ecclesiastical penance after conviction did not automatically provide grounds for pardon after conviction, at least under the earlier Christian emperors. This is shown in a law issued by Theodosius I in 391, and repeated in Justinian’s Code, on apostates, who were to be punished with exile and infamy. The law continues: But [after conviction] they shall never return to their former status (in statum pristinum revertentur); . . . Those who have lapsed and those who have erred should be helped, but those who are lost, that is, those who profane holy baptism, shall not be assisted by the remedy of penance, which is usually beneficial in the case of other crimes (nullo remedio paenitentiae, quae solet aliis criminibus prodesse succurritur).84

The law clearly said that apostates were excluded from pardons although they had undergone penance (paenitentia). As ever, it is difficult to establish the exact context that led to the promulgation of the law, but it has been argued that it was reacting to a particular practice where public convicts, possibly to exile, had submitted to ecclesiastical penance and used this as grounds for a petition of pardon, which may have become prevalent at around the time the law was issued.85 The law now sought to make clear that, while it was not discouraging convicts to seek ecclesiastical penance, penance, at least for apostasy, did not lead to a legal right to pardon.86 Yet, the law also states that penance could lead to pardon in the case of ‘other crimes’. This statement has sometimes been brought forward as evidence that Roman law, or at least late Roman law, knew the concept of remorse leading to early termination of a penalty, which would have been strikingly similar to modern practices. In this sense, apostasy would have been declared an exception from a customary process of pardon of those who repented ‘other crimes’ they had been convicted of.87 This would be 83

84 85

86 87

NJust 77.1 (538?): ἵνα μὴ ἐκ τοῦ παραβλέπειν τὰς τοιαύτας ἁμαρτíας εὑρεϑῆ ̣ καὶ ἡ πόλις καὶ ἡ πολιτεíα διὰ τῶν τοιούτων ἀσεβῶν πράξεων ἀδικουμένη. CTh 16.7.4.1 (391) = CJ 1.7.3. Vincenti (1995) 399–412; see also Barnard (1995) 136. Augustine, serm. 351.10 (PL 39:1546; attribution not secure) stressed the importance of excommunication and penance where someone had been convicted of a public crime in a public court, so penance after public conviction may have been something practiced, or at least encouraged by bishops, in the North African church. Again I owe this point to Uhalde (2012). Waldstein (1986) 1008–1011. See also Barnard (1995) 136 with nn. 87–88, although she erroneously interprets CTh 16.5.41, 16.5.40.5 and 16.6.52pr as referring to a possibility to ‘recant [heresy] at any time’, that is, also after conviction.

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the first occasion on which a Roman legal text ever mentioned such a mechanism as a legal principle and therefore merits further investigation. On a very simple level, the purpose of Theodosius’s law to cite penance for ‘other crimes’ as a reason for pardon may have been to single out the unique wickedness of apostasy, rather than comment on an established legal principle. Furthermore, what Theodosius may have wanted to establish was that apostates, like other serious criminals (‘those who are lost’), were excluded from general amnesties, usually dressed in the language of penance, that benefited those who had committed lesser crimes (‘those who have lapsed and those who have erred’) and restored such petty criminals to previous socio-legal status without the fear of further infamy.88 Most importantly, even where we accept that the law was referring to ecclesiastical penance of public convicts, its language did not imply that such penance generally opened up a legal right to pardon. It pointed out that the remedy of penance was ‘usually beneficial’ (solet prodesse). This qualification entertained the possibility that penance sometimes was not beneficial and hence suggested that the ultimate prerogative to decide on pardon, even for ‘other crimes’, still lay with the emperor, whose clemency may or may not be induced when confronted with a case of sincere penance. This was not entirely new, for already Constantine had justified the lifting of infamy upon pardon and recall from deportation by pointing at the ‘correction’ (correctio) of an offender.89 Yet, also in this case pardon was no automatic result of a demonstration of moral improvement, and the discretionary power of the emperor was acknowledged, even though it seems that from the time of Constantine pardon, when it came, automatically lifted infamy.90 The law of the late fourth century therefore still distanced itself from the idea that public procedure should give way to ecclesiastical procedure even after conviction, which was promoted not much later by Augustine as we have seen in the previous chapter. In fact, in other laws by Theodosius, rather than the emperor honouring an expression of ‘reform’ with pardon, it was imperial pardon itself that was praised as having an educative effect.91 In 381, Theodosius legislated on the exclusion of those who had re-offended from regular Easter amnesties. The law in question justified this exemption with these words: 88

89

90 91

See Sirm. 7 (381), an amnesty law by Theodosius, which promised return to statui pristino for those who had committed minor crimes and were freed by imperial pardon at Easter. CJ 9.51.13.4 (321): ideoque tantum ad restitutionem indulgentia valeat, quantum ad correctionem sententia valuit. Waldstein (1964) 181–183 and 137 n. 26; Washburn (2007) 258–259 and 286–289; Stini (2011) 137–139. Washburn (2007) 259.

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Punishment, reform and penance The humanity of our august generosity does not refer to those who, given freedom from punishment for an old offence, destine themselves to habit (consuetudo), rather than reform (emendatio).92

In the same year, Theodosius issued another amnesty law that expressed the hope that those freed by imperial pardon now followed the ‘precepts . . . of a better life’ (melioris instituti praecepta) rather than daring to commit another transgression.93 Here ‘reform’ was linked to the gratitude of having received imperial pardon and the obligation created by this favour. The language was steeped in the image of general human redemption and restoration of life at Easter with a striking overlap of imperial and divine mercy.94 Around one hundred and fifty years later, however, Justinian linked the remission of a penalty through imperial pardon to clear signs of improved behaviour as a consequence of punishment. For example, he ordered that monks who had left their monastery to take up military or imperial office and had been punished with the transferral of their property to their city council were to be pardoned if they had returned to their monastery within a year of promulgation of the law. The reason stated was that ‘reform (σωϕρονισμός) that ha[d] been brought about by experience of law [was] sufficient’. The unruly Samaritans, who had staged a rebellion in 530, and had been punished with infamy in the form of prohibition to draw up wills, were pardoned in 551, because Sergius, bishop of Caesarea in Palestine, had provided fresh evidence of their improved behaviour (καλλíονας αὐτοὺς γεγονέναι; meliores eos factos) and their promise to be peaceful in future.95 While these laws were tailored to specific cases, and still entertained a notion that pardon did not automatically follow signs of improved behaviour, they expressed and enshrined in law a more general understanding of the period of punishment as a period of improvement that included the possibility of social reintegration (in the sense of return to previous status and civic rights) upon tangible signs of such ‘reform’. Quite in line with the emperor’s arrangement to incorporate ecclesiastical justice into imperial administration discussed in the previous chapter, the law on Samaritans also accepted close monitoring of convicts’ behaviour by a bishop and the bishop’s subsequent intercession as justification for an early remission of a penalty. Never before Justinian had a Roman legal text expressed this concept so clearly. 92

93 95

CTh 9.38.6 (381) = CJ 1.4.3: ne in eos liberalitatis augustae referatur humanitas, qui impunitatem veteris admissi non emendationi potius quam consuetudini deputarunt. 94 Sirm. 7 (381). Waldstein (1964) 200–203 and 216–217. CJ 1.3.52.11 (531); NJust 129.1 (551). On the rebellion of the Samaritans see Sivan (2008) 125–142. The promise was not kept, as some Samaritans staged another rebellion in 554/5.

Conclusions

Over the course of late antiquity, an emphasis on ‘reform’ through punishment competed more intensely with other punitive discourses than ever before. Late Roman law engaged with the concept of reformative punishment in three different ways. Firstly, laws themselves as literary products were understood to have the potential to educate subjects about the consequences of wrongdoing. Secondly, penalties for minor crimes were frequently framed as educative. In both instances, late Roman law continued traditions that originated in the early empire. Drafters of imperial laws kept the long-established principle alive that the lawgiver had the duty to educate about vice and virtue, and lifted this duty to new rhetorical heights, perhaps, as some modern historians would say, not always successfully. In terms of choice of penalties, emperors sought to distinguish between those that needed to be removed from society and those who could be re-integrated into society, because their shortcomings were permissible, because those who had committed them were socially useful or because they were deemed too ignorant to understand their actions. This concept of ‘discretion’ continued to be conveyed with the help of the customary Platonic distinction between ‘incurables’ and ‘curables’ and the according representation of the emperor as a father or as a physician, although the systematic use particularly of the term emendatio gave this traditional approach to justice a Christian rebranding. It is not coincidental that also the Digest preserved passages that engaged with the concept of emendatio, even though in the mid-sixth century it was understood in a broader way than it had been by the earlier imperial jurists. The third notion of reformative punishment was the most innovative, for it incorporated the Christian practice of penance into imperial law, increasingly understood as part of the emperor’s divinely instituted responsibility for sinful humankind, which arguably made him even more accountable than traditional expectations of moderatio. Christian discourses of penance did not reject punishment, and in fact increased the 113

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use of terminology of wrongdoing as ‘disease’, but argued for ‘curative’ methods in preparation for the ultimate punitive moment, final judgement. What this means is that even serious social transgression came to be classed under the category ‘curable’. Serious offenders were represented as deserving of mercy, and, in turn, harsh punishment was seen as merciful. Yet, it should be noted that initially penance was not seen as converging with public punishment, at least in the case of serious crime. In the late fourth and early fifth century, public confession of guilt could lead to annulment of a trial and hence of public punishment, but, failing this, potentially lethal punishment was to be applied for the benefit of the community, even though, remarkably, it was also often framed as ‘salutary’ for the offender himself. The evidence from the time of Justinian shows, however, an acceptance that tangible expression of guilt during punishment could also lead to remittance of a penalty after conviction was slowly developing, often linked to the ritual of a bishop’s (or other intermediary’s) intercession. Despite the adoption of Platonic terminology, the focus of early imperial commentators of imperial justice stayed resolutely on the preservation of social peace, rather than changing an offender’s moral state of mind to restore a pre-existing state of virtue. Change of social conduct, based on fear, was seen as the best possible outcome of educative punishment; an aspect that, as we have described in the Introduction, from a modern perspective we might rather call ‘coercive’. Christianity shifted the focus onto the offender. Augustine’s notion that penance and the continuous exposition to the truth would adjust sinners ‘little by little’ (paulatim) to a true Christian lifestyle is reminiscent of Plato’s insistence on breaking bad habits through the ordering of space and time.1 Yet, Augustine, as many other Christians, argued that the offender’s ‘improvement’ meant his acceptance of sinfulness, not an (impossible) return to an innocent state of mind and this view over time became accepted as orthodox. The assessment of a true conversion of mind, and ultimate punishment, was the prerogative of God, and some Christian commentators hence accepted a mechanical change of social conduct (including the satisfaction of the victim) as a worthwhile outcome of temporal punishment. This arguably facilitated the use of painful and humiliating penalties (such as flogging) in ecclesiastical justice, but also underpinned practices of social reintegration and reconciliation of victim and offender.

1

Augustine, ep. 185.30 (CSEL 57:28).

Conclusions

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It is under Justinian that we can witness a fully conscious attempt to subsume the responsibility of the emperor in matters of faith and the responsibility of the emperor for the general morality of his subjects, particularly in matters of sexual mores, under the aegis of the ‘fatherhood’ of the Christian emperor and his resulting role in salvation. Justinian entertained the full range of Roman justifications of punishment, including deterrence, retribution, restoration of the victim’s honour and safety of society, but gave credit to the ‘education’ of the offender too, particularly where moral issues were at stake, that exposed offenders to the wrath of God, as well as men.2 Justinian’s acceptance of by now customary criminal jurisdiction of bishops over clerics and ascetics, and of a bishop’s right to intercede for defendants and convicts of public procedure was part of this vision. It is of course also under Justinian that we have the fullest record of an expression of the imperial mind through the medium of law due to the emperor’s collection of previous legal texts and the unabridged status of large parts of his own legislation. This nature of the evidence may unduly contribute to the impression that Justinian was significantly different from previous emperors, but overall fits well with Justinian’s definition of imperial humanitas as mirroring that of God and of his understanding of public and ecclesiastical law as two expressions of divine justice.3 The language of reform in late Roman laws was of course in many ways euphemistic, with the potential to become just a rhetorical cliché. If all, even lethal, punishment was purportedly meted out with fatherly, medicinal and merciful attitude, little could be argued against even the most brutal penalties that late Roman laws were so fond of.4 Yet, in reality the death penalty itself, at least at elite level, was perhaps seldom used, either due to practical reasons, ancient ideals of moderatio and honour, or to the pressure bishops were able to put on imperial officials and emperors, something that was an entirely new feature in late antiquity.5 Christian bishops on the whole did not subscribe to the ‘salutary’ nature of the death penalty (even where they appreciated the deterrent function of the legal rhetoric) and used its rejection as a way to cement their own superior authority as judges.6 As I have already mentioned in the Introduction, the time-honoured principle of discretion as an expression of imperial 2

3

4 6

For a comparison of justifications of punishment in Justinian’s laws see Bonini (1989) 413; Sitizia (1990) 215–217. Wubbe (1990) 258–262. On Justinian’s attitude towards the role of imperial law in God’s plan see also Leppin (2011) 110–126. 5 Brown (1964) 115; Gaddis (2005) 133; also see Robinson (2007) 183. Harries (1999) 150. Gaddis (2005) 146.

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clementia had already concentrated the minds of early imperial emperors on the penalty of exile, which, as Frank Stini has demonstrated, led to an unprecedented increase in the use of this form of punishment from the first century on. Just judges were in need of penalties that protected society, but could also be adjusted according to severity and leniency, and were reversible.7 In her speech to Augustus recorded by Cassius Dio, Livia hinted at this justification of the penalty of exile. Her vision of punishment as ‘education’ in fact focussed on exile, which she compared to a milder drug than the major surgery of the death penalty for those who needed to be removed, but were also emendable.8 As Daniel Washburn has shown, the penalty of exile continued to be employed in the late Roman empire for exactly these reasons, which, one may add, were now made even more urgent due to a Christian re-interpretation of justice as ultimately only God’s privilege.9 As we shall see in the remainder of this study, it was not only the non-lethal and reversible aspect of the exile penalty that was of interest to late Roman judges, but also its spatial aspects. Legal exile underwent a major transformation during the late Roman period from expulsion to internment, to match the peculiar late antique perspective on wrongdoing as ‘disease’ and punishment as ‘cure’, but also to respond to very practical aspects of the imperial justice system. 7 8 9

Stini (2011) 135 and passim. Cassius Dio, Roman History 55.17–55.18 (Loeb 436–440); Rocovich (2004) 170. See above Chapter 2. Washburn (2007) 253 and passim.

part ii

Prison and punishment

chapter 5

The public prison in late antiquity

Throughout all the intervening time which flows between such venerable and celebrated days [of Easter] we relieve from chains (catenis), we release from exile (exilio), we withdraw from the mines (metallo), we free from deportations (deportationibus), because it is clear that there is almost no day on which we do not order something merciful (clemens) and holy . . . Because we do not suppress this wellknown leniency (lenitatem) in our favours (beneficiis), we indeed open the prison (carcerem), put aside the fetters (vincla), and properly remove the uncombed hair, filthy from the gloomy confinement (tenebrosae . . . custodiae).1

In 386 Valentinian II, Theodosius and Arcadius issued a law on imperial amnesties. The emperors described the extent of imperial indulgentia as reaching far beyond the regular events at Easter that amnesties had become in the course of the fourth century, as we have seen in the previous chapter. The law claimed an incessant release from punishment for criminals throughout the calendar year. While it is difficult to verify the real impact of such claims, the law gives us a crucial overview over the kind of penalties the emperors considered their judges to pronounce beyond the death penalty – penalties they themselves could then humanely brush aside through imperial pardon. From this perspective, penalties in the late fourth century included exile (often, though not in this law, called relegatio), and its aggravated form deportatio, which combined exile with loss of property and civic rights, and hard labour in imperial quarries or mines (metallum). Such penalties were all of a type that was non-lethal and incorporated a spatial aspect. How 1

Sirm. 8 (386): quin per omne hoc, quod inter venerandos et celebres dies medium fluit tempus, catenis levamus, exilio solvimus, a metallo abstrahimus, deportationibus liberamus, cum satis constet nullum prope diem esse, quo non aliquid clemens sanctumque iubeamus . . . Unde notam beneficiis nostris non supprimimus lenitatem, aperimus quin etiam carcerem, vincla deponimus, impexos tenebrosae pedore custodiae crines decenter amovemus.

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common these were in comparison with other types of non-lethal penalties is difficult to conclude from the amnesty laws alone, or, for that matter, from other contemporary evidence, which is either prescriptive, anecdotal or polemical. Penalties such as corporal punishment or fines as a momentary rather than spatial form of punishment would of course not have been mentioned in a law on amnesty.2 The frequent evocation of exile and mines in the reiterative amnesty laws however suggests that they were common or at least that they were present enough in the collective mindset to be an effective target for imperial clemency. As other contemporary amnesty laws, the above law eloquently emphasised the prison as the primary burden of which individuals were to be relieved. Such acts of kindness were often directed at those who were detained on a criminal charge awaiting trial, in a form of investigative custody.3 In this law, however, they seem to have also been directed at those who were confined in the dark and filthy part of the prison following conviction, almost away from the living to whom amnesty restored them. If we interpret catenae as an allusion to the public prison, the law put an emphasis on the prison even before mentioning the penalties on mines and exile. All of this might be a literal allusion to a prison penalty, or else it might suggest that those who were exiled or banished to the mines were equated to public prisoners. We will therefore begin our discussion of late Roman forms of confinement with the public prison, which for contemporaries seems to have been a primary context against which all other penalties with a spatial aspect were measured. As we shall see, late Roman emperors were anxious to reduce the function of the public prison, and its sister-institution for the elite, house-arrest, to that of preventive custody of the accused and, to a lesser degree, of those awaiting execution of a sentence. The main aim of public imprisonment by law was to prevent escape and ensure that a defendant or convict could be swiftly produced, if needed. This was a classic function of the Roman prison, and the laws very probably meant to re-emphasise this tradition, although we should note that, contrary to earlier custom, late Roman laws also demanded such levels of control for members of the elite, by prescribing a more restrictive form of house arrest than these had hitherto been accustomed to. Yet, as I will argue in this chapter, the narrow vision of late Roman laws did not correspond to the functions assigned to 2 3

On the range of non-lethal penalties in Roman law see Garnsey (1970) 111–152. Other amnesty laws that reference the prison are CTh 9.38.3 (369); Sirm. 7 (380–381); CTh 9.38.6 (381) = CJ 1.4.3 (385); CTh 9.38.7 (384); CTh 9.38.8 (385). CTh 9.38.10 (405) only mentions exile and forced labour.

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public imprisonment in judicial and social practices, which drew on a conventional understanding that particularly those lower down the social hierarchy could be compelled to change their conduct through submission to unpleasant experiences. In light of what we have discussed in earlier chapters, late Roman commentators sympathetic with such practices may have called these experiences ‘educative’ (and some did, as we shall see below), although I will from now on mostly use the term ‘coercive’.

Legal purposes of the public prison Late Roman laws on prisons concentrated on four aspects.4 To begin with, they aimed to limit the number of prisons. Late Roman provinces featured the presence of officials of various competences, ranging from the imperial, provincial and municipal to the military. One of the objectives of late Roman laws was to clarify their competences and rights regarding the use of imprisonment. Secret agents (agentes in rebus) and soldiers acting as a police force in rural areas (stationarii) were urged not to put people in prison (carcer), but to refer their matter and the offenders themselves to a magistrate with judicial powers.5 The late Roman agentes in rebus, who were officials of the imperial court outside the control of provincial governors, were employed in a wide array of activities, ranging from the management of the imperial post to the communication of imperial orders at the provincial level and ensuring that these were carried out. Their official duties were purely supervisory and not judicial, but the laws show that these competences were sometimes exceeded.6 Stationarii, in turn, were soldiers from the larger group of the limitanei, the troops stationed in the frontier regions of the empire, who had been posted to guard places of particular imperial interest, such as road posts, mines or troublesome regions. Again, they were not subordinated to the provincial governor, but the military commander of a region, such as, in early fourth-century Egypt, the dux Aegypti.7 Emperors also prohibited officials at the municipal level, the curator, the defensor and members of the municipal council in general (ordo) from sending people to prison. Contrary to the agentes in rebus and the stationarii municipal officials did have judicial competences, but they were limited to civil litigation. This was certainly true for the defensor, a lesser judge, which increasing numbers of late Roman cities 4 5 6 7

For an excellent brief overview see also Raspels (1991) 289–306. CTh 8.4.2 (315); CTh 6.29.1 (355); CTh 6.29.8 (395). On the agentes in rebus see Kelly, C. (2004) 206–207. On stationarii see Fuhrmann (2011) 211–216.

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appointed for the protection against abuse and corruption at the hands of landlords.8 While it was acknowledged that all these officials played a crucial role in the maintenance of civic peace, they were only to arrest and then escort those charged with a crime, together with the accuser, ‘to a court’, ad iudicium. Prisons therefore were to be located only in the provincial capitals, although at this level there was no limit on the number of prisons, as different judges based in provincial capitals could maintain their own prisons. In Antioch, for example, both the consularis Syriae and the comes Orientis had their separate prisons.9 Prison registrars, called commentarienses, were to be part of the bureaus of imperial officials, and receive their salary from this source, and members of a magistrate’s office staff were also entrusted with arresting people.10 The second concern of late Roman laws on prison was to ensure that only the right people ended up in prison, namely those undergoing criminal procedure. Constantine, in a law from 326, decreed that every arrest had to be accompanied by a report that justified the action.11 The carcer, he stressed in another law, was a place for those subject to punishment (poenalium), of guilty men (hominum noxiorum). Elsewhere Constantine explained that only those whose crime had been established in a court hearing should ‘sustain the punishment of imprisonment’ (poenam carceris sustineat).12 Constantine did not refer to punitive imprisonment here, a controversial concept as we will see below. Rather, he used terms like poena and poenalis to emphasise that the prison was part of the criminal, not the civil process, and not to be used for tax exaction.13 It seems, in fact, that prisons were full of defendants in civil causes, and fiscal or private debtors, at least judging from the laws prohibiting their confinement. For those who had lodged an appeal against a civil sentence, Constantine prescribed military custody.14 Constantine, and later Constantius, also ordered that fiscal debtors should not be held in public prisons, and there submitted to flogging by ‘angry and perverse judges’. Fiscal debtors should be assigned to military custody or be released on bail 8

9 10

11 13 14

CTh 9.2.5 (409) = CJ 1.55.7. On the curator see Burton (1979) 465–487; on the defensor: Harries (1999) 54. Libanius, or. 45.31 (Loeb 188–190). Commentarienses are mentioned in CTh 9.40.5 (364); CTh 8.15.5 (365?/368?/370?/373?); CTh 9.3.5 (371) = CJ 9.4.4; CTh 9.3.6 (380) = CJ 9.4.5; CTh 9.3.7 (409) = CJ 1.4.9; sub-ordinated officials sent to arrest suspects: Ammianus Marcellinus, Roman History 28.1.49 (Loeb 116); Augustine, ep. 115 (CSEL 34:661–662); Augustine, ep. 153.25 (CSEL 44:425); see Krause (1996) 265. 12 CTh 9.3.2 (326) = CJ 9.4.2. CTh 11.7.3 (320) = CJ 10.19.2; CTh 9.3.2 (326). Rivière (2004) 210–212. CTh 11.30.2 (314); CTh 11.30.15 (329). On military custody see below, pp. 125–133.

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and, if they still were unable to pay, their property was to be confiscated. Valentinian III even allowed for the sale of land belonging to curiales, to pay for their tax debt, in order to avoid their flogging and imprisonment.15 Yet, not all emperors excluded the employment of prison in the exaction of taxes. A law by Valentinian II from 379 had condoned the use of supplicia, which may have included imprisonment, for fiscal debtors. Maiorian legislated in 458 against the interference in provincial tax exaction of officials of the imperial court, palatini, or those belonging to the office of the Praetorian Prefect, including the practice of imprisonment of insolvent tax debtors. He prohibited this, but had nothing to say, in this instance, about the same practices at provincial level. Leo only explicitly prohibited physical coercion in tax exaction for clerics. Justinian, finally, allowed for fiscal debtors’ short-term incarceration, for a period of thirty days.16 Thirdly, late Roman laws advocated swift trial and implementation of penalties for those held in preventive custody. Already Constantine had urged judges to start trials ‘at once’ (statim) when they had arrested a person on criminal accusation, so that ‘the guilty will be punished and the innocent absolved’. Sixty years later Theodosius emphasised, again, the need for ‘swift punishment’ (velox poena), condemning judges who let innocent people linger in prison. He also ordered that the prison registrar, the commentariensis, should report to the judge within thirty days the number of prisoners, and the crime they were charged with, presumably so due trial could commence. In 396 Arcadius and Honorius deplored the ‘idleness’ (desidia) of judges and exhorted them to subject prison inmates to trial and to pass sentence ‘according to what the laws have decreed’ (quod leges suaserint). In a law by Justinian, the registrar duties had passed onto the local bishop, who should record why people were held in prison, whether for debt, a capital or a sub-capital crime. Justinian also established a maximum stay for the accused. If a trial had not begun for slaves, they should be flogged and returned to their masters within twenty days, while a free man should only be held up to twelve months, if accused by a private citizen, or six months, if the investigation had been started by the governor himself. Only where guilt was manifest or the crime was serious, defendants could be held indefinitely.17 The general amnesty laws were also part of the larger attempt to combat the overpopulation of prisons. By ordering 15 16 17

CTh 11.7.3 (320) = CJ 10.19.2 (320) and CTh 11.7.7 (346); NVal. 1.3.2 (450) and 32.4 (451). CTh 4.20.1 (379); NMai 2.2 (458); CJ 1.3.32.6 (472); CJ 9.4.6 (529). CTh 9.3.1.pr (320): ut noxius puniatur, innocens absolvatur; CTh 9.3.6 = CJ 9.4.5 (380); CTh 9.1.18 (396); CJ 1.4.22 (529), CJ 9.4.6 (529), CJ 9.47.26.3 (529): the last three were originally part of the same promulgation.

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an annual release of prisoners charged with a sub-capital crime, emperors effectively overrode formal criminal procedure, presumably also because they expected such criminal procedure not to ever happen in the first place.18 Finally, emperors tried to protect prisoners on remand against abuse by prison staff. This concerned in particular the wearing of chains. For Constantine, those accused of a crime and awaiting trial should not wear heavy manacles, but only chains of a ‘more extended’ kind (prolixiores catenas), to allow for less regimented movement of the limbs. According to Theodosius, defendants should not wear chains altogether before conviction, while Justinian, in his version of the Constantinian law, only allowed chains for those charged with a capital crime.19 Emperors also legislated against prison staff accepting bribes from plaintiffs to mistreat or even kill prisoners, and against prisoners bribing prison staff to speed up their admission to trial. The laws deplored the negligence of prison staff in reporting on prisoners, and demanded that those prisoners who did not have friends or family to provide them were given food from the public supplies, that prisoners awaiting trial were separated from the convicts in the ‘inner prison’ (sedis intima), and let out in the fresh air each day, or even, a law by Honorius added, escorted to the baths once a week. The same law, dated to 409, required the judge to interview prisoners each Sunday to avoid corruption of the prison guards. The local bishop was to check both on the judge and on the prisoners, tending to the sick and hungry, and interceding for those found to be innocent. Some emperors were also concerned about the occasions for promiscuity prisons provided. Constantius ordered a separation of the sexes.20 A restricted number of public prisons were hence meant to hold those on trial or those awaiting execution of a sentence only, and these were to be processed quickly. We can certainly note some potential Christian influences in these laws, particularly where the treatment of prisoners was concerned, but overall the laws aimed at restoring a traditional legal distinction between different kinds of stages and outcomes of criminal procedure. To underline the different categories of custody in the public prison, Constantine in fact ordered that prisons’ outline should follow a certain scheme, with an inner or subterranean prison for more serious criminals and those sentenced, who deserved ‘squalid’ custody, and a 18 19 20

On late antique amnesty laws see above Chapter 4. CTh 9.3.1pr. = CJ 9.4.1pr (320); CTh 9.2.3 (380). CTh 9.3.1.pr. and 1 (320) = CJ 9.4.1.pr. and 1; CTh 9.3.5 (371); CTh 9.3.6 (380) = CJ 9.4.5; CTh 9.3.7 (409); Sirm. 13 (419); CJ 1.4.22 (529); women in the prison: CTh 9.3.3 (340).

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vestibule for those still awaiting trial.21 This was to physically enshrine the nature of the former as outcasts, who had to be further distanced from society. This outline was inspired by that of the carcer Tullianum in Rome, one of the most ancient public prisons, which, according to Livy, dated from the period of the kings and was still in use in the fourth century.22 Some municipal prisons may have indeed sported underground features like the Tullianum; for example, a prison in Edessa, called ‘the dark pit’, or one in Antioch, which was so dark that the guards would take bribes to let the inmates use lamps.23 Augustine of Hippo described as the standard outline of the prison accommodation above and below ground, the latter reserved for those charged with serious crimes.24 Yet, despite such imperial attempts at ordering prison space, a systematic arrangement was probably more ideal than real. Archaeologically, we know very little about late Roman prison, or Roman prisons more generally, and this may be due to the often improvised nature of legal imprisonment in a variety of public spaces. For example, there is some evidence from late antique Egypt that unused temples were used as prisons.25 Make-shift prisons may have particularly appeared whenever the number of prisoners exceeded the capacity of existing prisons. For example, in Antioch, after the so-called riot of the statues in 387, a wall was torn in between the prison, which also lacked a roof, and the adjacent yard of the bouleuterion, to create more space for the great number of arrested individuals.26 Custodial house arrest and the increase of surveillance Not every criminal defendant or convict awaiting execution of a sentence was meant to end up in prison in late antiquity.27 Holding those subject to criminal procedure under house arrest was an age-old tradition, first mentioned in the context of the abolishment of the Bacchanalia cult in 21 22

23

24 25

26 27

CTh 9.3.1 (320); CTh 9.3.2 (326): custodiae squalore. Ammianus Marcellinus, Roman History 28.1.57 (Loeb 120). On the history of the prison see Cadoux (2008) 202–221. Edessa: Acts of Shmona and Gurya (transl. in J. Segal, Edessa. The Blessed City (Oxford, New York: University Press, 1970), 83–84); Antioch: Libanius, or. 45.10 (Loeb 168); see also Lavan (2001) 39–56 and Pérez Martín (2003) 230–239. Augustine, tract. in ev. Ioh. 49.9 (CC 36:425). P.Oxy xvii 2154 (fourth century) (mentions the use of the temple of Hadrian in Oxyrhynchus as a prison); also see P.Lond.inv.2229 (sixth century). Libanius, or. 22.29–22.32 (Loeb 396–398). On its location see Matter (2004) 53–69. On alternatives to the public prison in earlier periods see Mommsen (1899) 317; Garnsey (1970) 147; Rivière (1994) 643–644; Krause (1996) 180–188. See Neri (1998) 428 on custodia militaris in particular.

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186 bc, when the (senatorial) priests of the cult were detained in their homes, guarded by the triumviri capitales.28 Examples from late antiquity include the former vicarius urbis Romae Aginatius, who was held under guard in his own villa in 375/6 on a charge of adultery and magic during the trials that haunted the city of Rome under his successor Maximinus.29 The late fourth-century Roman historian Ammianus Marcellinus, to whom we owe this information, also told the story of the noble woman Hesychia, who was guarded in the house of an apparitor.30 Around the same time, the pagan orator Symmachus and the Christian bishop Ambrose both mentioned senators put into custodia militaris.31 In 469, we hear of the case of Arvandus, the former praefectus praetorio of Gaul, who had been brought to Rome to be put on trial for conspiring with the Visigoths and held under arrest at the house of his friend, the comes sacrarum largitionum Eugenius Asellus.32 When the Ostrogothic king Theodoric sentenced his former Master of Offices Boethius to death for treason in 524, Boethius was held under guard at a country estate near Milan or Pavia called in agro Calventiano, where eventually he was beheaded. Although Boethius deplored the loss of his customary lifestyle, it is clear that he enjoyed reasonable freedom, leisure and reading material as he was able to write his Consolation of Philosophy during this time.33 There is little reason to assume that Theodoric was more lenient towards people of senatorial rank than his Roman predecessors. Rather, he probably emulated an established practice of how to deal with senatorial convicts. Although they are often hard to distinguish in the sources, as all of these arrests happened in private homes, there are different institutions at play here. The early third-century jurist Ulpian declared in his treatise De officio proconsulis that the governor, when required to hold a defendant on remand, should decide whether to put him into prison (carcer), into military custody (custodia militaris), in the care of a guarantor (fideiussor) or allow him to reside at his own house (sibi). Elsewhere, Ulpian 28 29 30 31 32

33

Livy, Roman History 39.14 (Loeb 258). Ammianus Marcellinus, Roman History 28.1.54 (Loeb 118). See PLRE I, Aginatius, 29. Ammianus Marcellinus, Roman History 28.1.47 (Loeb 114). Symmachus, Relatio 49.2 (Barrow 234); Ambrose, de obitu Valentiniani 18 (CSEL 73:339). Sidonius Apollinaris, ep. 1.7.4 (Loeb 368). On Arvandus see PLRE ii, Arvandus, 157–158; on Asellus PLRE ii, Fl. Eugenius Asellus 2, 164. The events are described by Boethius in Consolation of Philosophy 1.4 (Loeb 142–154); the name of the estate is mentioned in Anonymus Valesianus 87 (ed. I. König, Aus der Zeit Theoderichs des Großen (Darmstadt: Wissenschaftliche Buchgesellschaft, 1997), 90; for comment on the location, 201). See also PLRE ii, Boethius 5, 235–236.

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enumerated as places of imprisonment the vincula (here evidently an equivalent for the public carcer), the custodia militaris and the custodia libera.34 Custodia libera was hence clearly distinguished from custodia militaris. The former referred to arrest that could happen in the defendant’s own home or in the house of a friend or colleague, who acted as a guarantor. The adjective libera probably referred to the absence of chains (vincula) in this practice.35 In the late fourth century, the Christian ascetic Jerome juxtaposed the terrors that imprisonment in a public prison held with libera honestaque custodia, which was open to senators.36 The keyword was honesta, for this type of imprisonment was designed to safeguard honour, which the prison experience could jeopardise.37 For the same reason members of the senatorial aristocracy rarely had been imprisoned at all throughout the Republic, but were usually allowed to name a guarantor. It was an arrangement that fell within the parameters of hospitality, a sacred duty in the ancient world, but one traditionally exchanged between individuals of the same status, as an act of amicitia, expected to be mutually beneficial for the prestige of both host and guest.38 The privilege of avoiding any form of custody altogether when on trial seems to have decreased during the empire, yet the custodia libera remained an honourable alternative to the public prison.39 It was also a way to deal with noble female defendants, whose arrest, for considerations of modesty, was usually not looked upon well.40 To be sure, custodia libera habitually concerned custody prior to and during trial, before a verdict was reached. After guilt had been established, also senators were moved to the public prison until the execution of the sentence.41 This duly happened to Arvandus in 469 who after his verdict (the death penalty) was stripped of his rank and sent to a prison on the Tiber island.42 The custodia militaris, in turn, was a later development than the custodia libera, which emerged during the early empire.43 While we can observe 34

35 36 37

38 39 40

41 43

D 48.3.1 (Ulpian): de custodia reorum proconsul aestimare solet, utrum in carcerem recipienda sit persona an militi tradenda vel fideiussoribus committenda vel etiam sibi; D. 2.11.4.1 (Ulpian). Mommsen (1899) 305; Krause (1996) 187; Pavón Torrejón (2003) 183 and 202–203. Jerome, Contra Vigil. 6 (PL 23:359). D 26.10.3.16 (Ulpian): ceterum eos, qui sunt in aliqua dignitate positi, non opinor vinculis publicis contineri oportere (‘I do not think that those who have been placed in some position of rank ought to be confined in the public prison’). Bolchazy (1977) 33–34; Hiltbrunner (2005) 157. Rivière (1994) 643–644; Krause (1996) 186–188. See Suetonius, Tiberius 61.4 (Loeb 396) who was shocked that Tiberius had women arrested and executed in prison. D 48.3.5 (Venuleius Saturninus). 42 Sidonius Apollinaris, ep. 1.7.11–1.7.12 (Loeb 376–378). Arbandt, Macheiner (1976) 327.

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defendants being put under military guard in a domestic setting already in the first century, we encounter the legal term only from the early third century on, in the Digest passages of Ulpian and his pupil, Modestinus, when it appears to have been firmly established.44 According to Ulpian, custodia militaris was, in the first place, custody assigned to soldiers proper (milites). Ulpian’s statement does probably not refer to soldiers being employed as guards in public prisons, which regularly happened in the early empire, and was still occasionally mentioned in late antiquity, although at this point a magistrate’s office staff featured more widely.45 It may have indicated sending someone to a prison within a military compound. We know that such military prisons were employed also for nonmilitary individuals, for example, in early third-century Carthage. According to the Acts of Perpetua and Felicitas, the martyrs were sent to such a prison under supervision of an optio because they were to be part of games put on in the camp.46 This of course was a different matter than custodial arrest of defendants as it was already part of execution of the sentence. Nonetheless, particularly with the increase of soldiers stationed in the provinces during the empire, we can imagine that there may also have been greater use of military infrastructure to keep defendants on remand. Augustine, for one, mentioned that custody of defendants could be assigned to optiones, a military rank that re-called that of the prison officer in the Acts of Perpetua and Felicitas.47 Ulpian further mentioned custody under supervision by a member of a magistrate’s office staff, when he referred to custodia entrusted to a stator, a term denoting a governor’s orderly or messenger.48 Such an official was charged with arresting Cyprian of Carthage in 258, who was then taken to the house of the princeps of the proconsul’s officium. Augustine mentioned supervision by the lictores, the carriers of a magistrate’s insignia.49 Both statores and lictores were, alongside scribes, standard ranks within the salaried body of apparitores, a magistrate’s attendants, whose origins stretched back to the fourth century bc.50 A law by Gratian also referenced apparitores charged with custody.51 The guard of the matron Hesychia in 375/6, mentioned by Ammianus Marcellinus, was one of these apparitores, 44 45

46 47 49

50

D 4.6.10 (Ulpian); for use of the term see also D 48.3.3 (Ulpian); D 48.3.14.1 (Modestinus). Soldiers are mentioned for example by Callinicus, Life of Hypatius 21.3 (SC 177:136); see Krause (1996) 265. Acts of Perpetua and Felicitas 7 (Musurillo 116); see Millar (2004) 129. 48 Augustine, tract. in ev. Ioh. 49.9 (CC 36:425). Lewis, Short (1963) s.v. ‘stator’, 1752. Pontius, Life of Cyprian 15–16 (CSEL 3.3:cvi–cviii); Acta proconsularia 2 (CSEL 3.3:cxi–cxii); Augustine, tract. in ev. Ioh. 49.9 (CC 36:425). 51 Oxford Latin Dictionary (2003) s.v. ‘apparitores’ 129; Kelly, C. (2004) 134. CTh 8.8.2 (379).

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presumably an official attached to the bureau of the vicarius urbis Romae. At the municipal level, Ulpian suggested the custody could be entrusted to ministri, municipal attendants, often slaves, who fulfilled secretarial and administrative functions within city councils.52 Again, these should not be confused with the slaves who were often employed as guards in the public prison within cities.53 By the fourth century, the salaried and permanent office staff of imperial magistrates, widely expanded and professionalised, had come to be subsumed under the label militia.54 It is hence reasonable to conclude that, where in fourth-century and later texts the custodia militaris was mentioned, this could refer to supervision by either soldiers or by imperial officials and their subordinate staff. Custodia militaris could hence be within genuine military space; yet it is clear from the examples of the ex-vicarius urbis Romae Aginatius and the afore-mentiond philosopher Boethius that soldiers or sub-officials could also be dispatched to guard someone in a domestic setting, even in the defendant’s or convict’s own home. Custodia militaris could also occur in the residence of the magistrate as it seems to have done with Cyprian of Carthage. In the early fifth century, Augustine mentioned the case of the estate-steward Faventius, who for some undisclosed reason was due to be taken from Hippo to Carthage for trial.55 Faventius, apparently on advice by Augustine, took advantage of the thirty-day period to arrange his affairs afforded by imperial law in a case where a defendant had to travel to court. During that time, he was under guard by an apparitor of the comes Africae called Florentinus, who had come to collect him. Florentinus trekked around Hippo with his charge, making use of several private houses (domus). We can imagine that these belonged to friends of Florentinus, a stranger himself in Hippo, who granted him hospitality on the basis of their amicitia or on the basis of quartering.56 Yet, sometimes it is also clear that the houses where people were held belonged to the guards themselves, as in the case of the lady Hesychia mentioned by Ammianus Marcellinus, who had been held in the domus of an apparitor. Members of late antique imperial officials’ staff were reasonably privileged and wealthy, as they were salaried, received fees and were usually employed over a longer period.57 Possessing a house was not 52 53 54 55 56 57

Fuhrmann (2011) 64–65. On slaves as prison guards at the municipal level see Krause (1996) 255. Jones, A. H. M. (1964) 377–378. Augustine, ep. 113–115 (CSEL 34.2:659–662), written between 409 and 423. The law in question is CTh 9.2.3 (380); see also CTh 9.2.6 (409) = CJ 1.55.7, which cites the law of 380. See Jones, A. H. M. (1964) 586–596.

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beyond their reach. We know only very little about the living conditions of such middling ‘public sector workers’, although from Roman provincial archaeology some examples of more modest single-occupied houses are known. In late antique Rome, small and middle-sized domus proliferated in the fourth century, which may reflect the increase in imperial bureaucracy during that time.58 Contrary to the custodia libera, however, under custodia militaris the guard’s hospitality towards his guest was not given voluntarily, but ordered by a superior. The custodia militaris, where it happened in the official’s own home, hence represented a much higher interference of the state with private space and its intended use, to the extent that little distinction was made between the official’s profession and his role as a dominus and host. In this sense, custodia militaris can perhaps be compared to the late antique requirement of lodging travelling members of the military and the imperial administration, a kind of indirect tax on propertied households. Members of the high elite were exempt from this liturgy, at least for the house in which they primarily resided (the imperial family, consulares and patricii, senators, doctors and teachers funded by the state, Christian clerics, and also higher civil servants, such as primicerii, the chief notaries of the imperial palace bureaux).59 We can reasonably assume that under the custodia libera a defendant was treated with the customary reverence afforded to any guest by a Roman host. It is more difficult to imagine the living conditions under custodia militaris within a guard’s own home. Pilar Pavón Torrejón doubts that, when in 371 Valens ordered to hold a large number of citizens of Antioch charged with helping an usurper in private houses (domicilia), the prisoners were supposed to cohabit with the families in question.60 Following Ammianus Marcellinus, who described the prisoners as ‘crammed together’ (inclusorum catervas . . . constipatione vaporata confertas), she assumes that more ‘prison-like’ conditions within the home would have been found, such as putting people in storage rooms or windowless accomodation or private flour mills, which, as we shall see below, were favourite punitive spaces for household slaves.61 Augustine alludes to custodia militaris, where the defendant inhabited the very same room as his guard, so that the room became a carcer to one while it was a home to the other. To Augustine, this was similar to perspectives on worldly existence, which could widely differ between two 58 59

60

Ellis (2000) 80–85; in late antique Rome: Guidobaldi (1986) 165–237. On quartering see Hiltbrunner, Gorce, Wehr (1972) 1100–1102; Hiltbrunner (2005) 101–103. The respective laws are CTh 13.3.3 (333), CTh 16, 2, 8 (343); CTh 7.8.3, 5, 7, 10 (384); NTh 25 (444). 61 Ammianus Marcellinus, Roman History 29.1.13 (Loeb 194). Pavón Torrejón (2003) 214.

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individuals.62 If this can be taken literally, it certainly suggests very restricted living conditions for those subject to such custody. The reason why defendants were put into custodia militaris is less clear than that underlying custodia libera. Ulpian explained that a judge, when making a decision on where to imprison a defendant, should take into consideration the gravity of the crime, the public function, honour and wealth of the person in question, and their ‘harmlessness’ (innocentia).63 Unfortunately, he did not say which aspect merited which form of custody. Custodia militaris was, like the custodia libera, still thought of as being lighter than public prison. In the mid-second century Antoninus Pius ordered in a rescript not to put defendants accused of grave crimes with guarantors or in the care of soldiers, but to put them in the carcer, to make them suffer even before actual punishment.64 Constantine prescribed custodia militaris to detain tax debtors, and, as we have seen above, strictly distinguished it from prison, reserved for criminals.65 Overall, custodia militaris seems to have been a measure that was flexibly applied; still less harsh than the public carcer, and reserved for those charged with minor crimes, or tax debtors, even if of lower status, or for those who had to travel to court. At the same time, due to its higher form of surveillance, its restriction of movement and the possible subordination of a defendant to someone likely to be of lower social status, custodia militaris visibly emphasised the defendant’s submission to the power of the state. This motivation was perhaps even more important than the prevention of escape. Such considerations seem to have become more common during late antiquity and increasingly affected members of the elite. For the early empire we lack any evidence about individuals of senatorial rank in custodia militaris. This may mean that most criminal defendants of this rank were held in custodia libera, in acknowledgement of their honour, or not submitted to custody at all. During the fourth century, however, custodia militaris became the legal norm in criminal accusations, also for senators. In 362, Julian, in a traditionalist spirit, tried to return to a situation where senators, at least for minor crimes, should ‘be absolutely undisturbed and unrestrained’ before their crime had been proven in court.66 His law suggests that under Constantine and his sons at least, there had been an increase in putting defendants of senatorial rank under some sort of surveillance, either in the public carcer, or under military guard. The latter is more 62 65

63 64 Augustine, en. psalm. 141.17 (CC 40:2057). D 48.3.1 (Ulpian). D 48.3.3 (Ulpian). 66 CTh 11.7.3 (320) = CJ 10.19.2.1. CTh 9.2.1 (362) = CJ 12.1.8: vacuus sit prorsus et liber.

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likely, for three years later Valentinian and Valens declared in a law that attempted to overturn Julian’s that there should not be any distinction of rank: every defendant on a criminal charge should be put in custodia. While those of higher rank should still not suffer confinement in the public prison, they were to be put under surveillance by the respective judge’s office staff.67 Literary evidence also implies that the privilege of custodia libera was diminishing in the fourth century and being replaced with a form of custodia militaris.68 Employing, as ever, the example of public jurisdiction to explain divine forms of justice, in this case differentiation between the dead, Augustine distinguished between the ‘humane, gentle and civilised’ custodia assigned to lictores (humanum et mite officium atque civile), that assigned to soldiers, optiones, considered harsher, and that in the public carcer, the most severe form of all. According to the bishop of Hippo, the choice depended on the type of crime (or sin in the metaphorical translation), rather than social status, although one suspects that in reality social considerations by the judge may have played a role. Strikingly, however, he did not mention the option of custodia libera, unsupervised house arrest, or bail, which may mean that, at least to his knowledge, all defendants had to be under some form of surveillance.69 Of course, criminal trials against senators may not have been very frequent at Hippo, so Augustine is perhaps not the most fertile source on the treatment of the high elite in this respect. However, a case discussed by Symmachus as prefect of Rome in a letter to Theodosius in 384 featured custodia militaris also for senators. It concerned the young agens in rebus Africanus who had imprudently accused two viri clarissimi, Campanus and Hyginus, of violence, apparently under Symmachus’ predecessor. As it happened, the two were cleared of the charge, so that Africanus now faced punishment for false accusation, calumnia. Symmachus’s point of writing was to plead for clemency for Africanus, quite conventionally pointing at his youth. At the same time, he took the time to express disapproval of the way Campanus and Hyginus had been treated. They had in fact been put under custodia militaris, which probably meant supervision by the urban prefect’s office staff.70 While this had been what procedure demanded, Symmachus did point out that it really disregarded their rank.71 67 68 69

70 71

CTh 9.2.2 (365) = CJ 9.3.1. The expression was ex officio non recedat. See Neri (1998) 427–428. Augustine, tract. in ev. Ioh. 49.9 (CC 36:425). See further Augustine, serm. 256.1 (PL 38:1191), where the alternatives are also custodia militaris (literally: ab optione) or carcer. Neri (1998) 428. Symmachus, Relatio 49.2 (Barrow 234): reos custodia militaris dissimulata dignitatis circumdedit.

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What Symmachus’s story shows is that the judge at least in this case had taken on board legal changes on forms of custody, which essentially restricted their freedom of choice concerning custody forms, but also that people of senatorial rank took issue with it, mindful of different custom and traditions of honour. The latter may have contributed to the fact that the application of custodia militaris to people of senatorial rank was not in any way systematic. For example, the ex-praetorian prefect Arvandus was free to enjoy his friend Asellus’s hospitality at his house on the Roman capitol as late as the mid-fifth century. In the eastern empire it was also legally acknowledged around the same time that senators charged with a crime could give financial sureties or be put on bail just on the basis of an oath, rather than being put in prison, but this was limited to those of illustris rank, that is, to the highest functionaries of the state.72 Social privileges took time to die out, even though they increasingly became reduced to an ever narrower elite.

Towards punishment and coercion Comments in contemporary literature seem to confirm the view transpiring from late antique legislation that the prison system was often corrupt.73 Many late antique authors described or condemned the negligence of governors in observing correct criminal procedure, leading to long-term detainment of people because trials were never held and sentences not implemented. The pagan orator Libanius provides us with the most vocal example of such criticism. In his denouncement of the misbehaviour and corruption of the consularis Syriae Tisamenus to Theodosius (late 386), Libanius discussed the governor’s attitude to justice. Tisamenus was quick to arrest those accused, but slow to put the arrested on trial or execute their sentences. The result was prison-overcrowding, even leading to some prisoners’ death, whose guilt had not even been established yet. The governor would turn a blind eye on his prison staff torturing inmates and extorting money from them and their families.74 In the same year, Libanius also delivered to the emperor a more general report on prison conditions, an urgency which may demonstrate the wide-spread nature of 72

73

74

CJ 12.1.16 (442/3); CJ 12.1.17 (485/6?); see Krause (1996) 183–185. On the rank of illustris in the fifth century see Jones, A. H. M. (1964) 528–530. On literary descriptions of late antique public prisons in general see Krause (1996) 197–200; Neri (1998) 25; Lovato (1994) 216–217. Libanius, or. 33.30–33.31 and 41–42 (Loeb 220–222; 230–232); on Tisamenus see PLRE I, Tisamenus, 916.

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the situation described. Here, Libanius addressed similar issues as in the invective of Tisamenus: governors arrested many, but then forgot about them, prison inmates were tortured if they could not stump up the bribes for the prison staff, judges disregarded the reports made by the prison registrar. Libanius boldly claimed that governors were murderers because people died in prison without having been given a trial.75 Also Christian sources confirm that long imprisonment of people who were only on remand and even their death in prison before due judgement were prevalent in the late Roman period.76 At times literary sources described imprisonment that was technically for preventive custody as the punishment (poena) itself.77 For example, Ammianus Marcellinus referred to the long-term imprisonment of those who had consulted pagan oracles by Constantius’s agent Paul ‘the Chain’ at Scythopolis in 359 as claustra poenalia. He used the same term for the treatment of participants at a banquet, who had criticised Constantius, were taken to Milan in 355, tortured and imprisoned (attineri poenalibus claustris) with only slight hope that they would be released again.78 Ammianus here emphasised Constantius and his cronies’ disregard for justice and due procedure prescribed by imperial law itself. Ammianus’s approach, aiming at denouncing Constantius’ incompetence, however demonstrates that complaints about abuse of the prison system could have a particular literary purpose. They were meant either to discredit an unloved judge by revealing the extent to which he diverted from the letter of the law, in particular where elite defendants were concerned, or to elaborate on human suffering more general, as was the case in many of the Christian sources on the topic. These approaches obscure, however, that for judges and victims of wrongdoing forms of imprisonment that were more flexible than the short-term preventive custody in a few select prisons or in house arrest allowed by law may have served a real social purpose. The fact that late Roman laws had to be issued continuously between the fourth and mid-sixth century on often similar aspects of prison attest that such aspects were systematically entrenched in late Roman cultures of justice and hence could not have been due to the incompetence 75 76

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Libanius, or. 45.6–45.11, 45.32 (Loeb 164–170, 190). See e.g. Pelagius, de divit. 6 (PLS I:1386); Ambrose, ep. 50 (25).3 (CSEL 82,2:57); John Moschus, pratum spirituale 165 (PG 87.3:3032); John Chrysostom, ad stagirium a daemone vexatum 1.8 (PG 47:444); deaths in custodial prison: John Chrysostom, Homily on I Corinthians 9.1 (PG 61:77). On this phenomenon see Mommsen (1899) 952, 963; Rivière (1994) 628–632; Krause (1996) 85–86. Ammianus Marcellinus, Roman History 15.3.7.11 (Loeb 124) and 19.12.7; see on these passages Chauvot (2004) 33–40. Also see Cassiodorus’ definition of long-term detention before trial as longae custodiae poena in var. 9.17.2 (MGH AA 12:282).

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of single individuals only. We will now turn to the many faces of the late antique prison beyond preventive custody, and in particular its punitive and coercive aspects, which served both new Christian ideas and persistent popular perceptions of justice. Punitive imprisonment While, as we have seen, preventive custody was a well attested legal function of the Roman prison, scholars of Roman legal and social history have hotly debated the penal character of the Roman prison. Many historians argue that, at least in terms of legal norms, a prison penalty did not exist officially. This means that Roman law, in the form of leges establishing the jury-courts, plebiscites, magistrates’ edicts, imperial pronouncements and jurists’ comments on all of these never established confinement in a public carcer as a regular penalty based on a legal rule. Where incarceration was pronounced by a judge as a judicial penalty this was in defiance of the legal norm, an abuse that was, when revealed, also officially and sharply rebuked. This view, going back to Theodor Mommsen, rests on a famous passage from the work of the early-thirdcentury jurist Ulpian.79 His words in the version edited by Mommsen himself can be translated as follows: Governors are in the habit of condemning men to be kept in prison or to be kept in chains, but they ought not to do this. Penalties of this type are forbidden. Prison indeed ought to be employed for confining men, not for punishing them (Solent praesides in carcere continendos damnare aut ut in vinculis contineantur: sed id eos facere non oportet. Nam huiusmodi poenae interdictae sunt: carcer enim ad continendos homines, non ad puniendos haberi debet.).80

Mommsen’s view has, however, not gone unchallenged.81 Attention has been drawn in particular to the circumstance that Ulpian’s passage is the only evidence we have that prohibits the prison penalty outright, against a number of legal sources from the early empire that may point at a legal form of a temporary prison penalty for minor crimes committed by lowerrank people (humiliores); for example, the failure by a guardian to draw up 79

80 81

Mommsen (1899) 299, 952, 963. Supporters include: Brasiello (1937); Grand (1940–1941) 58–87; Mayer-Maly (1957) 323–334; Garnsey (1970) 150; Rivière (1994) 579–652; Krause (1996). D 48.19.8.9 (Ulpian). Supporters of the legal character of the prison penalty during the empire include: ‘Carcer’ [Hitzig], RE 3.2:1578; Solazzi (1956) 345–348; Eisenhut (1972) 268–82; Balzarini (1984) 2865–2890; Lovato (1994); Neri (1998) 422–424; Pavón Torrejón (2003) 193–198.

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an inventory of a warden’s property. Even though the interpretation of these passages is somewhat hindered by the fact that they speak about vincula rather than carcer, which could point at a sentence to forced labour, rather than a prison penalty, they have given occasion to review the complex transmission history of Ulpian’s passage.82 In particular in light of Ulpian’s uneven use of grammar, it has been argued that the aut after damnare may have been a later interpolation or an even later copyist error. If this was the case, the original prohibition may have been not to condemn someone to imprisonment, but to order someone already condemned to imprisonment to be held additionally in chains.83 Furthermore, it has been pointed out that the passage also needs to be seen in its wider context within the Digest.84 It is indeed embedded not in a discussion on penalties in general, but in Ulpian’s elaboration on the much more specific issue of what was to happen to those who had been sentenced to forced labour (opus publicum) and tried to escape. Ulpian’s conclusion was that the period of punishment the convict had not served yet when he ran away was to be doubled. The passage in question, which follows this conclusion, may therefore very well emphasise a prohibition to put such convicts into the carcer or in (perhaps perpetual) chains as punishment – as such withdrawing them from the workforce – instead of applying the punishment of doubling the length of forced labour. The carcer alluded to by Ulpian may be the place where those condemned to forced labour were held at night. Its purpose was to provide shelter, not punishment. The passage therefore separates prison and punishment, but it may be a very particular prison sojourn that was meant here. The evidence from the Ulpian passage is therefore inconclusive and can be interpreted in a variety of ways, due to a potential double distortion of its content, first through its abridgment for the Digest, and subsequently through its manuscript transmission. Yet, even a positivist reading of Ulpian’s passage as a prohibition of the prison penalty would suggest that provincial governors applied it in their sentencing practice. The nearly proverbial status in literary texts ranging from the late republic to late antiquity seems to confirm the widespread use of punitive imprisonment during the empire. The carcer regularly appears in catalogues of penalties 82

83 84

D 48.19.35 (Callistratus); CJ 9.47.6 (214); D 48.19.8.13 (Ulpian); D 26.10.3.16 (Ulpian); D 48.19.33 (Papinianus); on the terminology of vincula and carcer see also Arbandt, Macheiner (1976) 319. For a reading of these passages as referring to a penalty to be passed in a public prison see Balzarini (1984) 2889; Lovato (1994) 114–117; Neri (1998) 424. Messana (1991) 65–208; Lovato (1994) 129–132; Neri (1998) 421–422. Lovato (1994) 140–147.

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Roman authors cited to make a particular rhetorical point, be this to describe the extensive power of a Roman magistrate, or the extent of human suffering on earth. It is of course likely that such catalogues derived from literary transmission, rather than an accurate observation of sentencing practice at a particular moment in time.85 For the early fourth-century senator, legal advocate and astrological writer Firmicus Maternus, however, the threat of punitive imprisonment was real enough to name it frequently to his readers as the outcome of unfortunate stellar constellations.86 In his invective against the emperor Galerius, Lactantius described him as a judge who would habitually and indiscriminately resort to the harshest penalties, crucifixion, exposure to wild beasts and burning, while he would never inflict ‘lighter’ punishment: exile on an island, forced labour and imprisonment (carceres).87 Augustine contrasted imprisonment in the carcer following a public condemnation to incarceration for a reason only known to God, by which he probably meant imprisonment without trial. Jerome mocked his great adversary Rufinus for having claimed that he had suffered imprisonment and exile when he was living in Alexandria in the 370s: surely everyone knew this must be a lie, for prisons (carceres) and exile could not have been imposed without the decree of judges (iudicum sententiis), of which any record was lacking.88 In all of these cases, authors were operating with a notion that a judge could sentence culprits to imprisonment in a public carcer. We cannot, of course, assume that literary authors always accurately described criminal procedure and did not in each of these cases conflate separate procedural stages, in particular the period of preventive imprisonment and the subsequent execution of the judicial sentence. Prolonged imprisonment of defendants before trial and of convicts due to nonexecution of the actual sentences was, as we have seen, a pervasive habit of provincial governors. Yet, the pronouncement of imprisonment as a judicial penalty should not surprise us. With the disappearance of the jurycourts since the time of Augustus and the rise of a new criminal procedure, the cognitio, magistrates with judicial power, such as provincial governors, 85

86

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88

Cicero, de oratore, 1.43.194 (Loeb 134–135); Cicero, leg. 3.6 (De Plinval 83–84); Seneca, de ira 1.16.2 (Loeb 144); Tertullian, de anim. 33.7 (CC 2:834); Augustine, en. psalm. 57.17 (CC 39:722); Augustine, City of God 21.11 (CSEL 22:539), referencing an unidentified Cicero passage on penalties fixed by leges; John Chrysostom, Homily about the Statues 5.4 (PG 49:74); Libanius, or. 21.8 (Loeb 354). Firmicus Maternus, Mathesis 3.4.20; 4.8.3; 4.14.2; 4.24.9; 5.5.2; 6.14.2; 8.14.2 (Kroll, Skutsch, Ziegler, vol. 1 120, 208, 224, 276; vol. 2 58, 99, 308–309). Lactantius, Mort. pers., 22.2 (SC 39:103): nulla penes eum levis, non insulae, non carceres, non metalla, sed ignis, crux ferae, in illo erant cotidiana et facilia. Augustine, en. psalm. 122.10 (CC 40:1822); Jerome, ap. adv. Ruf. 2.3 (CC 79:35).

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were in fact less bound to statutory punitive measures. As a consequence, a range of new penalties developed, some of which originated in the summary measures of magistrates, based on the power of coercitio, to ensure civic peace and to break opposition of unruly members of society. As Cicero reminds us, even under the Republic such measures had always included fines, corporal punishment and temporary detention also for Roman citizens, unless they had appealed against their arrest to the people.89 Because the unwieldy and time-consuming criminal procedure of the republic, first before the iudicium populi and then the quaestiones, had focussed on trials with a political significance, it is likely that most dayto-day disturbances of public order, particularly where they had been committed by slaves, foreigners or lower-rank people, had been dealt with through such swift out-of-court actions.90 When under the empire magistrates became regular judges and increasingly dealt with petty misdeeds in the provinces, as well as defendants and plaintiffs from a wide social background, the boundaries between the nature of court sentences and summary measures became blurred. Furthermore, social classifications of Roman citizens into honestiores and humiliores meant that the latter, even were they were free, were associated with people who had always been subject to demeaning punishment that affected their bodies, including imprisonment, such as slaves and foreigners.91 It should be pointed out that Mommsen fully recognised this development and, in fact, historians owe to him its first analytical descriptions. Yet, Mommsen believed that sentences which were not based on a legal rule could not be called legal penalties in a juridical sense and, more importantly, he assumed on the basis of Ulpian’s passage mentioned above that Roman legal authorities shared this view when they prohibited certain sentencing practice, such as that to imprisonment. Quite apart from the doubts surrounding the Ulpian passage, more recent historians have pointed out, however, that any consideration of the Roman criminal system as a legalistic one, adhering to an absolute norm, would be misleading. Mommsen’s firm rejection of the legal foundation of any Roman penalty which was not endorsed by a legal norm should be seen in the context of the idealistic belief in legality and the power of legal codes that 89

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Cicero, leg. 3.6 (De Plinval 83); cf. Pauli Sententiae 5.26.1 (FIRA ii:408); D 1.2.2.16 (Pomponius); D 47.10.13.2 (Ulpian), dismissing a charge of iniuria against the magistrate who arrested someone for not having obeyed an order. Robinson (2007) 187; Krause (2004) 68–69. See on these developments Garnsey (1970) 103, 150; Balzarini (1984) 2865–2890; Lovato (1994) 4; Pavón Torrejón (2003) 187.

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characterised the study of Roman law in the late nineteenth century. This understanding of Roman law cemented a contemporary battle for civil rights, particularly in imperial Germany. Yet, such a systematic and rational approach to legal categories may not be appropriate for describing the Roman situation, where a degree of arbitrariness was prevalent at all times.92 Furthermore, the judge in the provincial cognitio had to deal with a wide range of wrongdoing, which may have gone beyond that defined in any written norms or records of precedent cases, and certainly went beyond the crimes established by the leges. It was therefore only natural that judges also developed new and practical penalties. Their relatively free role in doing so was in fact recognised and emphasised by the jurists themselves. Men in power were trusted to behave according to the principles of moderatio, as Ulpian stated: These days it is permitted to the judge who is investigating a crime extra ordinem, to cast a lighter or a graver sentence, if he so wishes, yet in a way that does not exceed moderation in either direction.93

As we have seen in Chapter 4, however, late Roman emperors tried to return to a system of fixed penalties that bound individual judges. Whether this was successful in practice is a matter of doubt. Even more than in earlier periods, the power of late antique magistrates was frequently presented as arbitrary, and one that could be altered by public opinion, the lobbying of powerful locals, including bishops, and their individual sense of correct behaviour. In fact, Justinian enshrined Ulpian’s above statement in his Digest.94 Yet, he also incorporated the jurist’s statement about the illegality of the prison penalty into his codification. Ulpian’s passage in question may even have been interpolated at that moment to make the prohibitive aspect stronger. What this means is that, perhaps, it was during the late Roman empire that the prison penalty was seen as most controversial from the legislators’ point of view, which would correspond with the overall tenor of late Roman laws trying to reduce the function of the public 92

93

94

This ‘zeitgeist’ also coined the nineteenth-century aphorism nullum crimen, nulla poena sine lege, whose Latin wording added to the illusion of the ancient origin of the principle. See Balzarini (1993) 371–395; Lovato (1994) 79–81; Pavón Torrejón (2003) 175. D 48.19.13: hodie licet ei, qui extra ordinem de crimine cognoscit, quam vult sententiam ferre, vel graviorem vel leviorem, ita tamen ut in utroque moderationem non excedat. See also D 50.17.155.2 (Paulus); D 48.19.42 (Hermogenianus) on judges’ interpretation of statutory penalties. On the freedom of the Roman judge in the cognitio see Lovato (1994) 85–90; Neri (1998) 422; Harries (2007) 36–37. Krause (1996) 196–198, 333–340. See above Chapter 3 for the encouragement this principle gave to bishops’ and other patrons’ intercession for those on public trial.

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prison to one of preventive custody only.95 This may be related to a more legalistic attitude at the level of imperial law production in this period, or to the particularly contentious character of the prison in late antiquity, which we will explore further in Chapter 8. When judges sentenced individuals to imprisonment, whether legally or illegally, the question remains what the purpose of such sentences was. The evidence suggests that the reasons behind them could vary. The only incident for which late Roman legislation prescribed the prison penalty derives, curiously, from a law by Justinian. In 529, Justinian ordered that anyone who kept a debtor in a private prison for a certain period of time was to be punished by imprisonment in a public prison for the same period of time and would lose their claims on repayment of the debt.96 Here imprisonment was a neat talionic penalty, where the prison penalty was tailored exactly to the crime in question, but also, in accordance with late Roman views on the prison penalty described above, was intended as a lesson on the utter impropriety of imprisonment. This very specific function cannot be generalised for all incidents of punitive imprisonment. The so-called Sententiae of Paul, a legal handbook usually dated to the early fourth century and hence thought to reflect Diocletian and Constantinian law, suggested that one reason why some offenders would be put into prison was the protection of society and the neutralisation of the offender. The offenders in question were soothsayers, corrupters of public mores and exploiters of human credulity, who resisted expulsion from society. Hence, other means of controlling them, and impeding the spread of their unwanted teaching, had to be sought, and the prison penalty (vincula publica) – provided that forced labour was not meant here – was named as a possible alternative to exile on an island.97 The Sententiae of Paul’s distinction between prison and exile as two ways to solve the continuous threat of soothsayers is not, or not only, a reflection of pragmatic considerations, where prison would be chosen, for example, in provinces devoid of islands.98 The juxtaposition of prison and exile on an island also appears in the astrological writing of Firmicus Maternus, who explained that ‘long-lasting’ imprisonment (diuturna carceris custodia) 95

96 97

98

Lovato (1994) 229–249, who also suggests interpolation of Ulpian’s passage either at the time of Justinian or at some point during the fourth or fifth centuries. CJ 9.5.2 (529). Pauli Sententiae 5.21.1 (FIRA ii:406): Vaticinatores . . . civitate expelli placuit, ne humana credulitate publici mores ad spem alicuius rei corrumperentur, vel certe ex eo populares animi turbarentur. Ideoque primum fustibus caesi civitate pelluntur: perseverantes autem in vincula publica coniciuntur aut in insulam deportantur vel certe relegantur. This has been suggested by Neri (1998), but we lack evidence that such considerations happened.

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was a similar penalty for lower-rank people (humiliores) as exile was for those of higher social status.99 What this means is that judges may have chosen imprisonment as a means to address wrongdoing committed by people who, by tradition, were seen as eligible for punishment affecting the body, in particular because it was hoped that such demeaning treatment would deter them from future misbehaviour. As such, prison was on a par with corporal punishment as a measure, as the early third-century jurist Callistratus suggested, of admonitio and castigatio.100 Alongside considerations of practicality and ‘education’ of lower-rank offenders, increasingly in late antiquity considerations inspired by Christian thinking seem to have played a part in the imposition of a prison penalty. In 358, while living an ascetic life at his country estate in Annesi, Basil of Caesarea approached his friend Candidianus, the provincial governor, with the request to put a man, a peasant on his estate, who had burgled his house and abused his female servants, in prison for a short time, as a sufficient punishment and as a guarantee of Basil’s ‘safety’. Basil clearly expected the governor to teach the man, and whoever was planning to act like him, a lesson.101 This letter is important in three respects. It firstly shows that, in a conversation between two elite men of the mid-fourth century, imprisonment could be discussed as punishment for a lower-rank criminals. It secondly shows, perhaps more importantly, that such imprisonment may have come about through the pressure of victims on certain judges, who hence clearly thought they stood to gain from such outcome. Basil may not have desired the expense and outrage of a public trial, which also potentially, depending on the penalty, would have removed the peasant from his sphere of influence as a landlord. We will return to the role of victims in the imposition of imprisonment below. Finally, it is important to note that, in the case of Basil, the request for imprisonment was presented as an alternative to other, more severe, although unspecified penalties. Basil, even though he was the victim of the wrongdoing, styled his intercession for the accused as Christian patronage. A source from Ostrogothic Italy indicates, in fact, that at some point during late antiquity the prison penalty acquired a decidedly Christian connotation. After discouraging the immoderate use of the death penalty, which we already discussed briefly in Chapter 4, Cassiodorus wrote in his model letter for the appointment of a Gothic count: 99 100 101

Firmicus Maternus, Mathesis 5.5.2, 4.8.3 (ed. P. Monat (Paris: Les Belles Lettres, 1992) 277, 140). D 48.19.7 (Callistratus). Basil, ep. 3.2 (PG 32:236): ἀλλὰ καὶ τῆϛ πρὸϛ τὸ λοιπὸν ἀσϕαλείαϛ δεόμεθα.

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The letter, referring to the work of judges as a ‘judgement of health’ (qui iudicat de salute) was steeped in the Christian language of reform that, as we have seen, also increasingly featured in late Roman laws and from which Cassiodorus certainly took inspiration. The prison penalty was, so Cassiodorus argued, a way to avoid the death penalty, at least for less severe crimes, which he deemed appropriate for a Christian judge. This is what Ambrose of Milan had already suggested to the Christian judge Studius in the fourth century, who had been concerned about how to match his earthly duties and his account to God. Ambrose explained that, where possible, he should use imprisonment as a punishment for less severe offences (sine gravi severitate), to avoid any blood shed.103 Crucially, Libanius, Ambrose’s contemporary, suggested that governors’ Christianinspired reluctance to apply corporal punishment and the death penalty was the reason why many people lingered in prison.104 In the early sixth century, then, not only advice against the death penalty, but also a campaign for the prison penalty, at least in the case of petty crime committed by lower-rank offenders, had become part of mainstream administrative rhetoric in the post-Roman West. It has a curious echo in a much later law, again from an Italian and a ‘Barbarian’ context. The Lombard king Liutprand (712–744) ordered in an addition to the seventh-century Edictum Rothari that each judge should build a subterranean prison in his civitas, to hold thieves in temporary imprisonment of two or three years if they were not able to compensate their victim.105 After that period he was to be dismissed as ‘healed’ (sanum). It was, Liutprand added, only the lightest form of the penalty for theft. Repeated theft would lead to the physical punishment of shaving, branding and possibly flogging, and, if the thief was still not ‘reformed’ after this (si nec sic emendare voluerit), he was to be sold into slavery. The use of terminology strongly betrays late Roman rhetorical influence and so, perhaps, does the prescription of imprisonment as a light penalty. There was, however, a material aspect to the emendatio assigned to the prison penalty in this text, beyond a hope for a change of conduct upon release. Liutprand saw the prison penalty, or the threat thereof, in the case of theft, as a method of coercion 102

103 105

Cassiodorus, var. 7.1.3 (MGH AA 12:185): habes etiam et ferrum nihilominus incruentum. Claudantur nexibus catenarum, quos levium criminum pulsat invidia. Cunctator esse debet, qui iudicat de salute: alia sententia potest corrigi, de vita transactum non patitur immutari. Ambrose, ep. 50 (25) (CSEL 82:56–59). 104 Libanius, or. 45.27–45.28 (Loeb 184–186). Liutprandi leges 80 (MGH LL 4:115–116).

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to make an offender pay financial compensation. This shows its particular usefulness wherever the function of the penalty was considered to be material satisfaction or some other tangible gain of a victim. As we shall now see, also late antique public imprisonment was often made to serve this function, even though contrary to the later Lombard context it was not laid down, or in fact was even prohibited, in legislation. Coercive imprisonment Probably even more than for punitive imprisonment following a public sentence, late antique prisons were frequently used for short-term extrajudicial arrests, or the threat of arrests, to put pressure on people to change their habits, to divulge information, to provide financial compensation or to pay private and fiscal debts. A crucial part of a late antique governor’s literary characterisation was his power to imprison people without difficulty, particularly in Christian texts which had the ephemeral nature of earthly authority or the inexplicability of God’s will as their subject.106 It is likely that the numerous sections of Christian literature that discuss this phenomenon distort our understanding on how frequent it was. Yet, the late antique laws attempting to restrict prisons’ use to detain only criminal defendants suggest that it was fairly wide-spread. Nominally Roman citizens could appeal against such treatment to the emperor, but already under the Republic and early empire it was difficult to enforce this provision, and even more so in late antiquity, where Roman citizenship did not carry much privilege anymore.107 At least some inhabitants of the empire were aware of their rights, however. In an Egyptian papyrus of the second half of the fifth century one Aurelius Sarapion, who had given a security for debt, complained that he had been put in a public prison and tortured when the creditor was unable to pay. In his petition to the defensor civitatis of Hermopolis, he pointed out that such treatment of Roman citizens was illegal.108 Such provincial views, if they managed to find the ear of the emperor, may have prompted some of the late Roman prison legislation.

106

107 108

Pelagius, Div. 6.2 (PLS 1:1386); for similar views see also Ambrose, In Luc. 7.155 (CSEL 32.4:351); John Chrysostom, Homily on Matthew 76 (77).5 (PG 58:700–702); Augustine, serm. 62.8 (PG 38:421); on all: Krause (1996) 196–198. Krause (1996) 333–340. Chr. Mitt.71 (= FIRA iii 180). The defensor was a lesser judge, who increasing numbers of late Roman cities appointed for the protection against abuse and corruption at the hands of landlords, see Harries (1999) 54. Aurelius may have referred to the Lex Iulia de vi; on this see Krause (1996) 8–9 and below Chapter 6.

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It is clear that many authorities in the provinces employed coercive imprisonment, or the threat thereof, for their own gain. For example, a law by Valentinian III rebuked imperial officials for their use of prisons to enforce sales, donations and other services in their favour.109 It is equally clear, however, that overstepping such competences at times helped a magistrate to actually do his job. In the early sixth century, the Nestorian monk Leontius of Byzantium, possibly writing in Constantinople, observed that many judges circumvented the duty of releasing prisoners at Easter, by imprisoning them in their own residence or that of a subordinate official.110 The passage reveals that late antique magistrates may have been anxious about the consequences regular amnesties could create for law and order, and their own public image, and hence preferred to keep prisoners out of reach of the law. Furthermore, as the anonymous author of the early fifth-century Pelagian treatise On Riches pointed out, the arbitrary power of officials to imprison easily could equally be exploited by members of the public, for spurious reasons and their own gain.111 We have already seen such dynamics at play in the case of Basil of Caesarea’s plea to the governor of Cappadocia for imprisonment of a thief mentioned earlier. Libanius also deplored that governors were approached by a growing number of victims about the smallest issues of wrongdoing, which allegedly led to an explosion of imprisonment.112 It is hence worthwhile looking at the phenomenon also from victims’ point of view. As we have seen above, emperors had in particular singled out stationarii as illicitly imprisoning people. From a rescript by Diocletian we know indeed that local people frequently called upon soldiers stationed in the provinces to address conflicts at the community level, certainly because usually these were the nearest official authority at hand.113 Often such demands included requests for arrest of alleged offenders from people of the area. The archive of Abinnaeus, a commander of the cavalry stationed in Dionysias in the Arsinoite nome in Egypt in the first half of the fourth century, is full of petitions of this type.114 Particularly after the mid-fourth century, when the power of the army began to decline in Egypt, requests for arrest were also directed at the local village officials drawn from the curial rank, the praepositus pagi, riparius or ekdikos. Their primary function 109 111 112

113 114

NVal 32.1 (451). 110 Leontius of Bizantium, serm. 1 (PG 86:1993); see Neri (2004) 250. Pelagius, Div. 6.2 (PLS 1:1386). Libanius, or. 45.3 (Loeb 162); for immoderate wishes of vengeance also see Augustine, en. psalm. 54.14 (CC 39:666) and John Chrysostom, Homily about the Statues 1.12 (PG 49:32). CJ 9.2.8 (284–292). See Fuhrmann (2011) 211–216. On Abinnaeus and his duties see and van Berchem (1962) 6–12, 13–21 and Turner, E. G. (1962).

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was to assist with the collection of taxes, but the populace clearly expected them also to be responsible for law and order and to maintain a prison facility.115 Most common were demands for arrests for iniuria (verbal and bodily assault) and theft.116 With reference to the evidence from late antique Egypt, Roger Bagnall has pointed out that at the Egyptian village level justice was often considered a matter of restoration of status and compensation of property, also with a view to re-integrating offenders into the usually close-knit community, rather than of seeking retributive punishment.117 These are expressions of what social anthropologists have called ‘quotidian notions of justice’, prevalent in particular in societies characterised by the absence of a strong state authority and by legal pluralism.118 What this means is that most demands for the arrest of wrongdoers may have been made as a last resort to coerce them into compensating their victims, similarly to what was envisaged by the much later law of Liutprand mentioned above, rather than in the hope of seeing public punishment executed. While such attitudes cannot be generalised where social offences are concerned, which might well have generated strong feelings of revenge, this function of demanding public imprisonment is particularly notable in the context of theft and debt.119 Where the latter is concerned, numerous Egyptian papyri, but also sources deriving from other parts of the late Roman world, attest creditors’ habit of asking officials, in particular the defensor, to lock up debtors in their prison, with a view to compelling them or their family to find an affluent sponsor, or to take out a loan.120 The pressure was 115

116

117 118 119

120

On civic officials in late antique Egypt see Bagnall (1993) 62, 165 and 168–169 on the predominance of petitions to civic officials over military ones after the mid-fourth century. On the decline of military power in Egypt after this period see also Bagnall (1989) 215. For imprisonment demanded for those accused of iniuria see e.g. CJ 9.2.8 (284–292); P. Abinn 15 (see Bell (1962) 59–60); P. Herm. 20 (fourth century); P. Abinn. 51–52 (see Bell (1962) 110–112); P. Lips. I 37 (389) (see Bryen (2013) 270); imprisonment on charges for theft: P. Abinn. 42 (see Bell (1962) 96–97); arrest for theft demanded: P. Abinn. 53 (see Bell (1962) 112–113); P. Sakaon 48 (343) (see Bryen (2013) 263–264); P. Cair. Masp. I 67091 (528?); on the evidence from the papyri see Krause (1996) 115–116 and Torallas (2006) 101–110. Bagnall (1993) 168. See also for the earlier imperial period Hobson (1993) 193–219. Blom Hansen, Stepputat (2006) 295–315. Neri (1998) 435–438; Krause (1996) 156. On ‘revenge’ being a motive for enlisting official judicial help see e.g. P. Abinn. 51–52 (ed. Bell (1962) 110–112). See also Bryen (2013) 128–140 who stresses that many petitioners asked for both punishment and compensation, and the latter may often have been seen as a token for the restoration of honour. Stud. Pal. XX 129 (497); P.Oxy XVI 1886 (fifth/sixth centuries); P.Oxy XVI 1883 (504). On private debtors in public prisons see also Ambrose, nab. 5.21 (CSEL 32.2.478); Ambrose, tob. 10.36–10.37 (CSEL 32.2.537–538); John Chrysostom, Homily on John 67 (66).2 (PG 59:372–373); Augustine, serm. 22A.1 (CC 41:303); Krause (1996) 161 thinks that arrest was only a last resort, while most creditors insured themselves against insolvency through deposits and mortgages.

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twofold, as successful coercion was probably expected both from the painful experience of imprisonment or related torture and from the family’s experience of income loss due to the incarceration of a wage earner. Sometimes, however, creditors would also have a wife or children arrested to put pressure on debtors, certainly if they could not lay hand on them physically.121 Physical coercion of private debtors to compel them or their family to come up with the sums owed was prohibited by law.122 It is likely, however, that practices particularly in the Eastern provinces still followed customs of debt bondage, where debtors unable to pay could be assigned to their creditors for a certain period of time, which Hellenistic law, but also archaic Roman law, allowed.123 This may explain the readiness of village or city officials to give in to demands of arrest for debt. We may imagine, however, that networks of power also played a role in the success of such demands. From a mid-fifth-century papyrus we learn of a petition of one Macarios to the defensor of Cynopolis to help him against his landlord, who had held him in the city prison (δεσμωτήριον) for three months, long enough for Macarios to lose his cattle.124 The landlord, it turned out, was the brother of one of Cynopolis’s town councillors, so clearly had an opportunity to exploit public facilities for his own gains. Macarios now claimed financial compensation and release from his bonds (δεσμῶν), but of course we do not know whether he was successful. Many papyri confirm the impression we gain from imperial laws that public prisons were also used to coerce fiscal debtors and those charged with the collection of public taxes.125 The archive of Dioscorus, a landowner, legal advocate and village administrator from mid-sixth century Aphrodito in the Thebaid, provides a particular colourful insight into such customs.126 Most notably, Dioscorus composed a petition on behalf of 121

122

123

124 125

126

See, e.g., PSI viii 824 (sixth century): An unidentified official orders to a woman kept in prison until her husband’s debts are repaid. On women in prison for debt, often that of their parents or husbands, in late antique Egypt see Beaucamp, vol. 2 (1992) 74–77. For further evidence from outside Egypt see John Chrysostom, Homily on Romans 10.2 (PG 60:477). On prohibition of physical coercion to repay private debt: CJ 4.10.9 (294); CTh 11.7.5 (345); CJ 7.71.8 pr (531/2); NJust 135 (556). Any dispute about debt had to go through the courts, with a view to gain a sentence of cessio bonorum to the creditor: see Kaser, vol. 2 (1971 and 1975) 329–330. See Rivière (1994) 648; Lintott (1999) 18–25; Pavón Torrejón (2003) 211–212. For debt bondage in Hellenistic Greece and Egypt see Lewald (1910). P.Oxy vi 902 (c. 464); see Feissel, Gascou (2004) 174–175. P. Abinn. 29 (ed. Bell (1962) 78–79); P.Oxy xlvi 3302 (300/1); P.Oxy xvii 2154 (fourth century); P.Oxy xlviii 3409 (fourth century); P.Oxy xvi 1835 (fifth to sixth century); P.Flor iii 296 (sixth century). Imprisonment for tax debt is also mentioned in Libanius, ep. 1318.1 (364) (ed. R. Foerster (Leipzig: Teubner, 1921) 377); Ammianus Marcellinus, Roman History 30.5.6 (Loeb 338); John Chrysostom, Homily on Matthew 66 (67).4 (PG 58:630–631). The literature on Dioscorus is vast; see in particular MacCoull (1988).

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villagers from Aphrodito to complain about their confinement and torture during three successive periods of imprisonment, in the prison of Thynis, the prison of Antinoopolis, and finaly the prison of Antaiopolis (in the later for at least six months) by the pagarch Menas, the chief tax-collector of the city’s territory and a man who also had tried to seize property from Dioscorus himself and arrest his son. As Aphrodito had a special tax status, which allowed the villagers to collect taxes themselves and send them directly to Constantinople, Menas may have considerably overstepped his competences by probably coercing this group of people to transfer the taxes raised to him. Nonetheless, the petition, addressed to the dux of the Thebaid, was unsuccessful and the villagers were only released after they had paid up.127 As we have seen, imperial law, certainly under Justinian, to some extent allowed the use of public imprisonment in the exaction of taxes, so it might have been hard to convince the dux of the aggressive nature of Menas’ behaviour. From the archive of Dioscorus also derive two papyri which describe the public prison respectively as a ‘place of chastening’ (σωϕρ[ονιστήριον]) and as a place that aided ‘reform’ (σωϕρονισμόϛ). In the former case, it was officials attached to a pagarch’s finance department who used the term in an account describing different tax categories (the so-called Antaiopolis register). The text only survives in fragmentary form at this point, which makes it difficult to assess the circumstances under which it used the term σωϕρονιστήριον, but its formulaic nature supports the conclusion that the public prison, perhaps particularly where it held those liable for tax, was habitually and officially referred to by a label that foregrounded its ‘educative’ function.128 The second papyrus is a petition from the villagers of Aphrodito to a high official attached to the dux of the Thebaid to release a group of people held in the public prison, probably at Antaiopolis, for tax liabilities, which may be the same as those in the incident described above. The petitioners pointed at the inmates’ ‘reform’, which probably meant that they had agreed to pay.129 Similar to late Roman legal justifications of punishment, the two papyri framed the imposition of a painful experience, in this case imprisonment, as a process of learning and healing. Strikingly, 127

128 129

P.Cair.Masp. I 67002 (567). On the pagarch in late antique Egypt see Liebeschuetz (1974) 163–168; Mazza (1995) 169–242. On Dioscorus’ petition see also Feissel, Gascou (2004) 145–146, 170 and Keenan (2008) who argues perceptively that Dioscorus was drawing on literary discourses of suffering to make his text more persuasive, including common images of imprisonment. P. Cair. Masp I 67057 (c. 540); on this text see also Zuckerman (2004) 54–56. P. Cair. Masp I 67020 (566–570/573); see Feissel, Gascou (2004) 153–154; on both these papyri see also Torallas Tovar (2006) 107 n. 20.

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both those who imposed and those who suffered the experience used the same rhetoric, which must in consequence have been fairly conventional. We find this kind of coercive activity not only at the level of local communities, but also as a practice that evolved from the imperial court. Julian, for example, imprisoned the town councillors in Antioch who had boycotted his fixed grain price for a day in the autumn of 362. Although Libanius tried hard to make the emperor’s behaviour look almost like a benefit – he could have chosen a far harsher measure for his unruly subjects and, in any case, they hardly spent any time in prison – he would not hide the emperor’s aim to use this kind of treatment to make the town councillors tow the line.130 It is particularly and increasingly in the context of inner-Christian conflict that we encounter the use of the prison as an extrajudicial method to compel a change of behaviour at a high governmental level. For instance, in 386, during holy week, Valentinian II and his Homoian mother Justina demanded from the Catholic bishop Ambrose of Milan the surrender of a number of churches, including the extra-mural basilica Portiana and Ambrose’s very cathedral in the city. Ambrose refused, supported by large sections of the population who staged a sit-in at the basilica Portiana, assaulting a Homoian priest on the way there. As a consequence, the court imposed a corporate fine of two-hundred pounds of gold on the corporation of merchants (corpus negotiatorum) to be paid within three days, presumably because the assailants had been members of the corpus. A number of merchants were imprisoned, to coerce the others to come up with the sum. Ambrose lamented in a letter to his sister that the innocent had to suffer imprisonment at a time when tax debtors were released, a reference to the general imperial amnesties at Easter, which benefitted all prison inmates. Ambrose here conflated imprisonment to coerce debt and to coerce the payment of a fine for the sake of rhetoric. Eventually, the traders agreed to pay the money ‘if they could only keep their faith’.131 Although the court had not demanded a profession of belief – the fine was for assault, not for religious behaviour – the merchants seem to have understood that they were also coerced to denounce Ambrose. The conflict surrounding John Chrysostom’s stint as archbishop of Constantinople provides evidence for a more formal use of the prison, and the conditions prison inmates were exposed to, as a method of religious coercion. After John had been deposed and exiled to Cucusus in Armenia 130 131

Libanius, or. 18.196 (Loeb 418–410). Ambrose, ep. 76.6 (CSEL 82.3:111): dummodo servarent fidem; on the incident see also McLynn (1994) 196–208. The corpus was later compensated.

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in 404, the citizens of Constantinople faithful to John were sought out on order of Arcadius, thrown into prison and compelled to renounce him, most probably in a public ceremony.132 When John’s successor Atticus tried to force the Eastern bishops and their clerics into communion with himself and John’s enemies, Theophilus of Alexandria and Porphyry of Antioch, many refused and were exiled by imperial edict. The monk Stephen, however, Palladius of Helenopolis told in his Life of John Chrysostom, was put into prison and promised to be released if he would change his mind. Despite the torture of flogging, he persevered and was eventually also exiled. It is not quite clear why (or whether) this monk received a different treatment than the clerics, but it may have been due to his lower social rank. As we shall see in Chapter 7, exile was another way to coerce certain religious behaviour.133 Many more anecdotes, particularly from the fifth and sixth centuries, referred to this use of public prisons.134 Most of these stories have, of course, the illegal aspect of coercive imprisonment at heart, to associate their heroes with persecution and martyrdom. Yet, depending on the perspective, imprisonment for religious coercion could also be presented in a positive way. In the mid-sixth-century Life of Symeon Stylites, the magister militum Amantius, having been sent to eradicate paganism, manichaeism and any kind of sorcery in Antioch, probably in the context of persecution of pagans under Justinian in the 550s, was described as throwing many dissidents into the public prison; most, however, he let go free, the author of the Life reported with satisfaction, after they had promised to repent.135 This account perhaps shows that over time such cases of imprisonment for religious coercion became part of a routine governmental strategy, to the extent that they made for a plausible literary tale that highlighted the salutary nature of orthodox Christianity and its methods of bringing people into line. What such anecdotes show is that also high magistrates, just like village elders and tax collectors at other levels of society, employed imprisonment to enforce a change of habit, if not of mind, as a convenient way to restore order in a community and to cement 132 133 134

135

Sozomen, Ecclesiastical History 8.23 (GCS 50:379–381). Palladius, Life of John 20 (SC 341:205). See e.g. Theophanes, AM 5980 (De Boor 132) on the two Italian bishops and papal ambassadors Vitalis of Truentum and Misenus of Cumae, who were thrown into prison at Abydos en route to Constantinople in 483, in order to force them into communion with the patriarch Acacius; also Theophanes, AM 6005 (de Boor 158) on the imprisonment of John of Jerusalem in 516 to ‘persuade’ him into communion with Severus of Antioch. Life of Symeon Stylites 164 (ed. P. van de Ven (Brussels: Société des Bollandistes, 1962), 146). On Amantius see PLRE iiib, Amantius 2, 52–53. See also below Chapter 9.

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authority. Such in theory often illegal, but in practice widespread, accepted and often court-evolved uses of prisons considerably complicated the imperial aim to narrow the function of prison to one of just preventive custody. In addition, they complicated the distinction between ‘public’ and ‘private’ imprisonment, to which we will turn in the next chapter.

chapter 6

Private power and punitive confinement

In an attempt to define correct legal terminology to describe imprisonment, the early third-century jurist Venuleius Saturninus argued that the term ‘chains’ (vincula) could be used to denote both private and public forms of restraint. Custodia, he continued, was to be used, however, only with reference to publicly authorised containment.1 This advice was certainly not heeded as even in the legal literature instances of confinement in private households, for example that of slaves, were often called custodia.2 Nonetheless, with this statement Venuleius tried to make sense of the fact that there were other institutions apart from the state that had the power to address wrongdoing. Since his reasoning was included in Justinian’s Digest we must assume that it still mattered in the sixth century. Non-state institutions with the power to punish concerned originally and predominantly the paterfamilias’ legal control over children, slaves and freedmen, which ruled real social relations even in the Roman provinces as evidence from late antique Egypt shows.3 A new category of people that came under the authority of elite Roman property owners in late antiquity were the tenant farmers who worked their estates, alongside slaves and wage labourers, which our sources call coloni. The origin of this dependency, its nature and its extent are quite obscure, a point to which I will return below. During the course of the late antique period, further non-state punitive authorities started to be recognised, such as, as we have seen in Chapter 3, that of the Christian bishop, but also that of monastic leaders. I subsume these under a label ‘private’ that, following Kate Cooper, defines institutions, practices and spaces that were not funded by public resources (but which were not, as the modern usage of the term would suggest, shielded from the public gaze or indeed out of the public interest).4 1 4

2 3 D 50.16.224 (Venuleius Saturninus). See e.g. CTh 9.12.1 (319). Arjava (1998) 147–165. On Roman definitions of ‘public’ and ‘private’ see Cooper (2007a) 17–24.

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If we now turn to norms and practices of punishment in these various institutions, we will see that confinement played a role, as the jurist Saturninus implied. This deserves our attention, as it suggests that it was in domestic discipline, geared, as we have seen in Chapter 1, towards the values of ‘education’ rather than ‘retribution’, that spatial punishment was primarily and, contrary to the incidents described in the previous chapter, quite legally probed. This is not to say, however, that the lay or monastic household included formally designed prison space. In the lay household, forms of confinement were determined by the socio-legal status of offenders and their role within the family, which to some extent mirrored statusbased attitudes to the legitimacy of public imprisonment discussed in the previous chapter. Domestic confinement, framed not as ‘prison’ but as seclusion from the outside world, exclusion from the central space of the house, or as segregation to a secondary domestic space, was an accepted way to discipline free members of the household, which Christian writers even encouraged as ‘educative’, particularly for women. Forms of confinement that resembled the public carcer, with severe restriction of movement, were, however, frowned upon in the case of free-born and freed members of the household, although, as we shall see, such methods were frequently used to compel behaviour in the private sphere, even beyond the context of the immediate household.5 Domestic imprisonment was considered reserved for slaves (the likely object of Saturninus’ comment) and, perhaps, fugitive coloni. Yet, the use of idle imprisonment in the case of unfree members of the household was not as common as sometimes thought, for it would have infringed on their ability to work and the main purpose of the punishment of unfree dependents, visible deterrence. Alongside beating, degrading work assignments, often in forms of confinement underlining the culprit’s status as outsiders, fitted the bill. Late antique monastic rules drew on these traditions of segregation and seclusion, but put an ulterior emphasis on the ordering of punitive space to facilitate penance.

Segregation and confinement of children and wives As a matter of principle, Roman law expected parents, slaveholders and spouses to deal with defiance of their authority at home, within certain limits set by the law on physical harm. This did not only refer to disciplinary issues that were out of scope of public judicial proceedings, such 5

For the fluctuating boundaries between free and unfree domestic dependants and the corresponding alignment of domestic discipline see also Clark, P. (1998).

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as filial disobedience, but also included delicts such as theft and inuria, that is, verbal insult or bodily harm.6 The restrictions on bringing an action for such delicts extended to a patron against his freedmen, clients and labourers (which in late antiquity may have included coloni).7 Spouses also could not sue each other for iniuria or theft.8 These restrictions were designed to safeguard the honour of the parents, slave-owner and patron, and the institution of marriage, which rested on the principle of marital harmony.9 They were also intended to underline the paterfamilias’ and slave-owner’s time-honoured authority to enforce domestic discipline, not to speak of saving the public courts a lot of work. Legal and cultural norms concentrated on the paterfamilias when discussing domestic punishment. This does not mean, of course, that he was always the one meting out the punishment. Particularly where smaller children were concerned, mothers, grandmothers, teachers and slaves took part in instilling discipline, but for the law such power was merely delegated by the paterfamilias, or, if he had died and the child was still a minor, the guardian.10 In the case of rural slaves or tenants, geographical spread of landholding could mean that between foreman, estate steward and agents there were many layers of interaction. Even if masters were present during the castigation of a slave, they seem to have often handed over the actual task of punishing to subordinates.11 It is therefore important to remember that any uniform punitive strategy postulated on a theoretical level was not necessarily matched by reality with so many agents involved. During the empire, the paterfamilias lost the right to kill a child in potestate (the so-called ius vitae necisque).12 Beyond this, however, the law had little to say about moderation or immoderation in the treatment of children in the household, perhaps drawing on a wider cultural consensus that parents would not treat their children unreasonably.13 As we have seen in Chapter 1, jurists, law-givers as well as classical and Christian moralists postulated that the purpose of punishment of young household dependents was emendatio. The methods of emendatio were varied. It could refer to verbal admonition, and particularly classical commentators on the education of children advocated a system based on rewards and privileges, 6 8 10

11 12

13

7 See CJ 3.41.1 (224); CJ 4.14.6 (287); see also Hillner (2013b). D 47.2.90 (89) (Paulus). 9 Treggiari (1991) 377–378. Treggiari (1991) 430–431. On the role of individuals beyond the paterfamilias in the education of children see Kunst (2006) 47–57. Harper (2011) 230. Thomas (1984) 501–548; Harris (1986) 81–96; Shaw (2001) 56–77, who argues that the ius vitae necisque had always been a cultural construct, never a legal right. Hillner (2013b) 25.

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as much as on punishment.14 Yet, as we have seen, emendatio could also be thought of as a process based on the infliction of pain and humiliation, even in the case of free members of the household. The Greek historian Dionysius of Halicarnassus (d. after 7 bc) explained in his Roman Antiquities, written to acquaint a Greek audience with the customs of their Roman rulers, that possible penalties inflicted by the paterfamilias could include imprisonment (ϕυλακῆϛ), chaining or forced labour.15 During the late republic and early empire imprisonment of children was sometimes recorded in literary sources. Seneca the Younger told the story of L. Tarius Rufus, consul suffectus in 16 bc, whose son had attempted to kill him. The father exiled the son to a property he had in or near Marseille. Seneca represented this as an alternative to death or carcer, and one that reflected the father’s clemency.16 The early imperial rhetoricians who composed declamation handbooks, usually in the form of two or more perspectives on the same case, also mentioned the imprisonment of children. Seneca the Elder, for example, had one of his orators suggest imprisonment for children who refused to support their parents, while in Calpurnius Flaccus’ Declamationes the same was demanded for a son who had attempted parricide.17 The evidence of the rhetoricians is hard to assess. Their sole purpose was to present oral elaboration on complicated, controversial and colourful cases, without much regard for current law or custom.18 Furthermore, it is unclear whether the carcer mentioned at least by Seneca referred to domestic imprisonment at the hands of a father or public imprisonment inflicted by a magistrate. Imprisonment in the public carcer may also have been implied in the incident involving Tarius Rufus.19 These stories suggest collaboration between paterfamilias and state, where the former had the choice between private and public punishment, even in cases that later came to be defined as public crimes. All, however, idealised fatherhood, and did not necessarily reflect social practices. Already at the time of Dionysius of Halicarnassus, therefore, his description of children’s imprisonment at the hands of a father probably reflected a nostalgic memory of an ancient past.20 Whether discussed positively or negatively, evidence throughout Roman antiquity, including from the late 14 15

16 17

18 20

Saller (1994) 133–153; Saller (1996) 144–165. Dionysius of Halicarnassus, Roman Antiquities 2.26.4 (ed. C. Jacoby, vol. 1 (Stuttgart: Teubner, 1967) 326). Seneca, de clem. 1.15.7 (Loeb 402). Seneca, Contr. 1.7 (Loeb 150); Calpurnius Flaccus, Declamations 4 (ed. L. A. Sussman (Leiden: Brill, 1994) 30–33.). See also Quintilian, Inst. 7.1.54–7.1.56 (Loeb 38). 19 Bonner (1949) 94–95. Krause (1996) 84; see also Pavón Torrejón (2003) 210. See Gabba (1960) 98–121.

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Roman world, shows that, where painful and humiliating punishment of children was mentioned, it mostly concerned some form of beating. On the basis of the surviving evidence frequency of childhood beating is hard to measure and a matter of some debate among historians.21 Yet, it was certainly mentioned more frequently than imprisonment. Formal imprisonment, particularly where it involved the use of chains, was, perhaps even more so than beating, a treatment associated with submission of the body and hence slavery. Roman law, while emphasising their duty of obedience, prohibited even freedmen from being put in chains (vincula), so we can imagine that they were seen as morally highly dubious for free-born children, particularly of elite families.22 In the ficticious Acta Chrysanthi et Dariae, a martyr narrative from Rome whose earliest Latin version perhaps dates from the fifth century, the protagonist, a young Christian, was ‘dragged’ (truserat) into the darkness of a prison (carcer) by his father, a senator and ardent pagan. For the purpose of the story, this action clearly marked the father, and hence paganism as a whole, as abusive and perverted, for he violated the natural father–child relationship based on pietas.23 Conversely, some forms of punitive uses of space could be postulated as an alternative to beating. John Chrysostom, who in many ways echoed classical reservations about the appropriateness of beating children, advised the men of his congregation at Antioch that they should order misbehaving children, slaves or wives to retire to sleep without dinner. John reassured his audience, who might have been worried about such levelled treatment of different household dependents, that such disciplinary measures brought ‘no damage, but a gain’ (οὐχὶ ζημίαν, ἀλλὰ κέρδοϛ ϕέρει). In John’s eyes, imposing fasting was a ‘spiritual’ act (τὰ πνευματικά), bringing ‘swift reform’ (καὶ ταχίστην τὴν διόρθωσιν), to be favoured over physical measures such as beating. He also advocated it in his treatise on the upbringing of children.24 However, withholding dinner also meant 21

22

23 24

Laes (2005) rejects the earlier position by Saller (1994) that, at least in classical antiquity, beating of children was rare, arguing that corporal punishment was a daily reality for many children across the Roman empire, including older ones, and certainly at school, as it was culturally accepted as a necessary feature of classroom discipline and an aid to learning. CJ 6.6.6 (242): ‘it is certain that freedmen and freedwomen, particularly those upon whom no service is imposed, have to show the usual obedience to those who have manumitted them rather than provide servile labour, and should not be put in chains’ (libertos sive libertas, maxime quibus impositae operae non sunt, consuetum potius obsequium quam servile ministerium manumissoribus exhibere debere neque vincula perpeti non est opinionis incertae). Acta Chrysanthi et Dariae 4 (BHL 1789). John Chrysostom, Homily about the Statues 5.7 (PG 49:79). On rejection of beating, or at least ‘frequent’ beating of children, and on fasting see also John Chysostom, de inani gloria 30 (SC 188:120–122); Leyerle (1997) 156–157. On the implication for wives see Dossey (2008) 9.

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segregating culprits from the community of the household at the crucial moment of evening mealtimes, which for the free inhabitants of the house was a key occasion of convergence, and from the rooms dedicated to dining, which particularly in late Roman domestic architecture marked the centre of the house.25 In this way, it was a form of punishment with a clear spatial feature, even though commentators may not have wished to draw the parallel to formal imprisonment. Spatial segregation was also the defining feature of a more severe domestic disciplinary measure for adolescent or grown-up children often mentioned in late republican and early imperial sources: the expulsion of children from the household itself.26 While under Roman law such expulsion (abdicatio or relegatio) did not lead to a termination of patria potestas and hence an exclusion of children from property succession, the Greek East knew a legal form of child expulsion, ἀποκήρυξιϛ, that led to disinheritance of the child, turning this very child into a stranger to the household (ξένοϛ). In 288 Diocletian prohibited the practice, calling it Graeco more, which shows that it was still strong in some provinces of the empire. It may have continued to be common also after this date.27 More regular, however, also in late antiquity, seems to have been the informal and reversible sending away of children, which was mentioned by both Augustine, who called it abdicatio, and by John Chrysostom.28 At least in the earlier sources, it was often conceived of as an order to reside at a rural property. For example, young Sextus Roscius, accused of parricide in 80 bc, had been sent to the countryside by his father. His lawyer Cicero tried very hard to make this look like paternal benefaction, rather than punishment, in his defence speech, in order to play down any potential feelings of revenge by his defendant.29 The purpose of such a measure was, as John Chryostom put it in his De verbis apostoli – with a clear parallel drawn to the Scripture parable of the prodigal son – to make children return ‘chastened’ (γενόμενοι σωϕρονέστεροι). The severity lay in the social 25 26

27

28

29

Ellis (2000) 171–174. See e.g. Cicero, pro Sex. Rosc. 15–17 (ed. F. Schoell (Leipzig: Teubner, 1923) 66–69); Livy, Roman History 7.4 (Loeb 368); Valerius Maximus, 5.4.3 (Loeb 496), here presented negatively; Orosius, History against the Pagans 5.16 (ed. K. Zangemeister (Leipzig: Teubner, 1889) 164–165). Although the latter wrote in the early fifth century, he described a case that occurred during the late republic. Diocletian’s law: CJ 8.46.6 (288); on the continuation of the practice see Taubenschlag (1955) 137; Kaser (1975) 213. On Roman abdicatio see Kaser (1971) 69; Saller (1994) 117–119; Garnsey (1997) 115–116. Augustine, ep. ad Galatas 39 (CSEL 84:108); John Chrysostom, de verbis apostoli, Habentes eumdem spiritum 9 (PG 51:289); see also his de Anna sermo 1.3 (PL 54:636–637) though here he uses the term ἀποκηρύττοντεϛ. Cicero, pro Sex. Rosc. 15–17 (ed. F. Schoell (Leipzig: Teubner, 1923), 66–69).

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disgrace that living in the countryside entailed due to its distance from an urban lifestyle as well as from access to paternal patronage. Augustine also explained that for parents it was a way to deflect shame from the family.30 As such, it displayed some parallels with the public penalty of exile, to which we will return in the next chapter. Again, it is hard to say how frequently such segregation to a secondary domestic space was applied, also because it was clearly only possible for families who had such space at their disposal. The desire to restore correct moral behaviour as well as to protect a family’s honour by shielding the culprit from the public eye may well have led to this form of segregation being more frequently imposed on daughters than on sons. A famous example is that of Valentinian III’s sister Honoria, segregated on an imperial property after she had consummated a love affair with her estate steward.31 Although there was a certain overlap in this case between Valentinian’s role as Honoria’s closest agnate relative with a responsibility to restore domestic order, and his role as an emperor with a responsibility to restore public morals (the case was one of stuprum, a public crime), his choice of punishment suggests that Valentinian was keen to be seen as returning his sister to the sheltered lifestyle that was traditionally expected of well-born girls in antiquity.32 Procopius of Caesarea eloquently described this ideal, deploring the emperor Justinian’s choice of a former actress as a wife, rather than a woman ‘who . . . was . . . blessed with a nurture hidden from the public eye’.33 Seclusion and surveillance were more frequently mentioned with reference to the treatment of wives than that of children. The institution of patria potestas assigned a peculiar role to wives. Under the most common marriage type throughout the time of the Roman empire a wife did not enter the potestas of her husband, but stayed in the familia of her own father or grandfather. Upon the death of her paterfamilias she would become sui iuris, literally meaning ‘in her own right’, with the power to hold property, including slaves, as would any adult who did not have a living ancestor in the paternal line.34 Ancient cultural conceptions, however, meant that wives were generally seen as subordinate to their husbands, which was 30

31

32 33 34

Augustine, ep. ad Galatas, 39 (CSEL 84:108): malos enim filios ne de his erubescant, etiam parentes abdicare solent. Jordanes, Getica 224 (MGH AA 5:115); see also Marcellinus Comes, Chronicle a. 434 (MGH AA 11.2:79); John of Antioch, frg. 223.2 (Mariev 405) reported that Honoria was betrothed to a trusted courtier on the occasion; see PLRE ii Iusta Grata Honoria, 568. See Clark, G. (1993) 94; Kunst (2006) 52. Procopius, Secret History 10.2 (Loeb 120): τροϕη̑ ϛ κρυϕαίου μεταλαχοῦσαν . . . . See Saller (1999) 182–197; Cooper (2007b) 111–112.

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perhaps even more pronounced from the fourth century onwards, when, due to Christian influences, the legitimacy of divorce came under scrutiny. In the late Roman East we also see the continuation of a Hellenistic legal concept at play, the husband’s guardianship over his wife.35 Late antique men expressed strong sentiments that the ideal environment of wives, as that of daughters, was the home. John Chrysostom, for example, advised his audience that wives should not leave their houses unless they went to the church or the baths.36 Basil of Caesarea envisaged as one of the duties of married men to keep their wives under watch (γυναικὸϛ ϕυλακή).37 Augustine described in a sermon how an astrologer, after he had sold his predictions to his customers, went home and beat up his wife for as little as looking out of the window, even though his wife had told him that a stellar constellation had induced her to behave like this. Augustine’s point was not to claim that the woman had the right to look out of the window, or the husband did not have the right to compel seclusion. The point of the story was to ridicule the astrologer’s absurdity of believing in fate on a professional basis, but not seeing this through in private. The story hence shows that wives were normally expected to spend most of their time indoors, at least in late Roman North Africa.38 Constantine issued a number of laws allowing wives to send representatives to court litigation, so that public appearance would not have to drag them from the seclusion of their homes and jeopardise their modesty (pudicitia).39 There is no doubt that both Christian and legal literature drew on inherited moral tradition that female chastity was best preserved through wives’ seclusion from the public gaze, which we have already seen manifest itself with daughters.40 Such expectations were not necessarily matched by reality. Certainly, in a sermon preached as bishop of Constantinople in 402–403, John Chrysostom commented matter-of-factly that the weakness of women was not only due to nature, but – at least where urban women were concerned – also their lifestyle, for they were always sitting in the seclusion of their homes, like a tree in the shade. While still a priest at Antioch he had explained in a sermon that, conversely, women may be wiser than men, 35

36 38

39 40

Arjava (1996) 177–198 (on divorce), 147–148 (on the husband’s guardianship), 131 (on the cultural perceptions of the husband–wife relationship). John Chrysostom, Homily on John 41.3 (PG 59:340). 37 Basil of Caesarea, ep. 2 (PL 32:225). Augustine, en. psalm. 140.9 (CC 40:2032); the same story also appears in Augustine, ep. 246.2 (PL 33:1061). See Shaw (1987) 31. CJ 2.12.21 (315); CTh 1.22.1(316); CTh 2.17.1.1(324); see also NJust 124.1(545). Arjava (1996) 243–249. Domestic life for wives was also extolled in non-Christian late Roman texts: Julian, Panegyric on Eusebia, 127–128 (Loeb 336–340); Symmachus, ep. 6.67 (Callu 39).

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because they spent so much time at home.41 These remarks may indicate that domestic isolation was not only an ideal in late antique eastern cities. At the same time, the Western ascetic Jerome’s commentary on female life in fourth-century Rome demonstrates large freedom of aristocratic wives to appear in public with great ostentation.42 Both authors were of course tendentious, which makes it hard to generalise about any real custom. John’s and Jerome’s divergence may show that, as has been sometimes argued, there were more traditional customs of female domestic seclusion in the Greek east.43 Yet, Egyptian papyri bear witness to a great number of wives appearing in public, and, in particular in court trials, despite Constantine’s concern about their pudicitia, which defies any conclusion of large-scale ethnic differences concerning the behaviour of women.44 Still, because the association of wives and domestic seclusion existed, grounding a wife at home may have been seen as a suitable disciplinarian measure, to restore chastity and to shield misbehaving women-folk from public sight, in order to protect a husband’s honour. This may have been the case in particular when their misbehaviour could have also prompted public criminal proceedings in court, such as in the case of adultery.45 For Christian authorities, encouraging locking women away was also seen, again, as a way to steer men away from beating as a way to exert control, this time over their wives. While they believed in subordination of women to men, and a husband’s duty to care for his wife and train her in right behaviour, late antique Christian writers did not, on the whole, approve of physical abuse of wives.46 Augustine represented keeping a wife at home if she had misbehaved as a good way to restore order in the household and contrasted it directly with flogging a slave-girl. He also called disciplining a wife emendatio, as such awarding a husband educational authority.47 John Chrysostom, as we have seen, advised men to exclude unruly wives from meals as a way to ‘educate’ them. The Council of Toledo, in 400, encouraged a remarkably strict treatment for unruly wives of clerics. If they had sinned, their husbands had the right to bind them in their house and, again, force them to fast and exclude them from spaces of 41

42 44 45

46 47

John Chrysostom, Homily on Hebrews 29.3 (PG 63:206); John Chrysostom, Homily on John 61.3 (PG 59:340). 43 Jerome, ep. 77.4 (Labourt, vol. 4:43). See Dossey (2008) 31–32. Beaucamp (1992) 21–28; Arjava (1996) 246. See Chapter 3 for the tendency of some families to avoid criminal proceeding for sexual misbehaviour of their womenfolk. Arjava (1996) 131, with references; see also Hillner (2013b) 21–45. Augustine, tract. in ev. Ioh. 10.9 (CC 36:106). For emendatio of wives see also Augustine, ep. 246.2 (PL 33:1061).

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mealtime.48 We should remember that the reason the council had been called was to deal with the Priscillian heresy and the issues it had generated for conventional, male authority through attracting a female following and promoting an egalitarian form of male and female asceticism. The council canon should therefore perhaps not be taken as representative of what late Roman men, or clerical men, thought about the punitive treatment of wives in general, but as a reflection of what Spanish clerics thought was needed to restore church order and clerical honour.49 Still, it is significant that a wife’s confinement was presented as the most appropriate measure to do so. Archaeologists have long argued that it is difficult to discover any rooms specifically set aside for female members of the family in Greco-Roman domestic remains. This is either because we have not yet developed the necessary techniques to investigate the material culture of more invisible groups in the household, or because houses did in fact not have spaces segregated by gender, which at least for Roman houses seems to have been the case. At most spaces might have been screened off flexibly by using devices such as curtains.50 Despite the potential lack of female quarters that could double as spaces of confinement, some late Roman husbands seem to have been able to develop intricate measures of surveillance of their wives. In an emotional plea for the benefits of virginity over marriage, John Chrysostom reminded his listeners that employing his slaves as spies was customary behaviour of jealous husbands, which meant that wives lived in terror like in a prison (ϕυλακή), ‘a captive’ (δεσμώτου) in their own homes: She cannot go out, she cannot utter one word, she cannot take one breath, without having to give account to her corrupt judges.

While John also admitted that not all marriage was like this, husbands encouraging friends or neighbours to spy on their wives in their absence was also mentioned by Augustine.51 48

49 50

51

Council of Toledo I (400), c. 7 (Vives 21–22): placuit ut si cuiquunque clericorum aliorum uxores peccaverint, ne forte licentiam peccandi plus habeant, accipiant mariti earum hanc potestatem praeter necem custodiendi, legandi in domo sua, ad ieiunia salutaria non mortifera cogentes, . . .; cum uxoribus autem ipsis quae peccaverint nec cibum sumant, nisi forte ad timorem Dei acta poenitentia revertantur. See Burrus (1995) 104–114, with discussion of this canon at 113. On the potential lack of gendered space in the Roman household see Wallace Hadrill (1994) 8–9; see Ellis (2000) 178 on the possible existence of women’s quarters in Greek houses; on the importance of analysing floor deposits to potentially identify gendered spaces see Morris (1998) 193–220. On the use of curtains to create gendered spaces see Wieber-Scariot (2000) 97–112. John Chrysostom, On Virginity 52.5 (SC 125:294). Augustine, tract. in ev. Ioh. 13.11 (CC 36:136) and see Shaw (1986) 30–31 for comment.

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Locking away wives inside the home could, therefore, also be represented as abusive behaviour. In the sixth-century Passion of Anastasia, a ficticious martyr narrative from the city of Rome, Publius, a pagan senator, imposed enclosure at home on his wife Anastasia, daughter of the vir illustris Praetextatus. Anastasia had not only ministered to Christians in the public prison, but had also feigned illness to avoid conjugal relations. It is notable that Publius publicly charged Anastasia with magic and sacrilege, but then had her imprisoned at home. Perhaps this episode drew on customary house arrest for Roman elite women on criminal trial, an important measure, as we have seen above, for shielding them from the public gaze. At home, Publius denied his wife food and light, with a view to killing her, and, on leaving for official duty, trebled her guards; in short, he created public prison-like conditions. It was hence not the house arrest that was the issue in the story, but Publius’s abuse both of the domestic power that derived from his role as a husband and of his official power that he had been publicly granted as Anastasia’s guard. Despite her situation, Anastasia managed to smuggle out some letters to her friend, the Christian Chrysogonus. Chrysogonus now advised her to endure her condition and to follow the virtue of patientia.52 For the purpose of the story this turn of event, of course, underlined Anastasia’s suffering as the martyr that she was later to become, and also, as Kate Cooper has shown, was constructed to emphasise God’s rather than man’s role in her eventual release. It is, however, possible that it also reflected contemporary Christian views that a wife should behave submissively, even if her husband was clearly abusive, so as to attain eternal glory.53 In a roughly contemporary Italian martyr narrative, the Passion of Nereus, Acheilles and companions, possibly originally written in Greek, the pagan husband of the Christian heroine Domitilla, niece of emperor Domitian, shut her up in his house, ‘as if in a private prison’, the author was quick to emphasise, a fierce choice of words in a late antique context, as we shall see further below (intra parietes domesticos quasi in privato carcere continet clausam). Domitilla was not allowed to receive any visitors, to see her parents, slaves, neighbours and even her own children. In this case, there is no attempt by a Christian authority in the story to rationalise such behaviour.54 Lesley Dossey has argued recently that this narrative, with its 52

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Passion of Anastasia 2–7 (ed. H. Delehaye (Brussels: Société des Bollandistes, 1936), 221–249 (BHL 400–401)). Cooper (2007a) 28–29; Dossey (2008) 21. Passion of Nereus, Achilles and companions 4 (ed. H. Achelis (Leipzig: J. C. Hinrichs, 1893), 66–68); the Latin text is in AASS May 3, 6–13.

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Greek credentials, reflects that in Greek mentality isolating wives at home in this way, to shield them from any protection they might receive from the outside world, was considered scandalous, because due to endogamic marriage customs wives’ relationships to the local community were much closer in the Greek east. In this sense, the message was very different from that of the Passion of Anastasia, although it should be noted that the Greek origin of this text is debated.55 In any case, the stories from the martyr narratives show that in contemporary perceptions there was a fine line between perfectly acceptable domestic seclusion and outrageous imprisonment of wives, and that, where it suited an author’s purposes, the former could easily be presented as the latter. The problematic consequences that some forms of wives’ seclusion could have had are also visible in two real-life cases from late antique Egypt. In a fourth-century affidavit, which is usually interpreted as originating from a divorce lawsuit, a wife complained that her husband had not only taken some of her property and shut up her slaves, but had also threatened her with confinement by ordering his slaves to enlist men who could act as guards.56 In another papyrus, dated to the fourth or fifth century, a woman called Aurelia Attiana wrote to a tribune, Marcellus, with a complaint about her husband, who, when she sent him a notice for divorce because he lived with a concubine had not only shut her up, but had also raped her while in confinement, resulting in pregnancy.57 While the exact purposes of the documents are unclear, both women were probably seeking recovery of their dowries, an essential requirement for the preservation of female honour and the possibility of remarriage. Despite recent changes in divorce law under Constantine, which had prohibited divorce unless filed if the other spouse was a convicted criminal, divorce initated by just one spouse continued to be widely practiced, particularly in the Eastern provinces of the late Roman empire, as it had been under classical Roman law.58 It should be noted, however, that even classical divorce law did not, on the whole, make it easy for wives. While it is difficult to generalise as much depended on the attitudes of individual judges, cases for the recovery of dowry met with most success if a woman could prove heinous forms of violence against her, such as flogging or 55

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Dossey (2008) 23. Her argument follows Achelis’ assumption that the original version of the passio was Greek, but see also Schäfer (1894) 89–119, who argues that the Greek version reworked the Latin text, which he dates to the fifth century. P.Oxy VI 903. See Bagnall (1987) 41–61. P.Oxy L 3581. See also Beaucamp (1990–1992) vol. 1, 93–94. On late Roman divorce legislation see also below Chapter 10.

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whipping (verbera), that were, as a law from 439 explained ‘unfit for the freeborn’.59 In both of the cases from Egypt, there had been some previous attempts by family members and the local clergy to reconciliate the wives with their husbands. These mediators had probably tried to convince the woman in question that it was her duty to endure the travails of marriage.60 The decision to take the dispute a step further and involve a public court only came after the episodes of imprisonment, or threats of imprisonment. This means that, even by family and clergy, such actions by a husband were at times considered so serious that a wife was allowed to seek legal help. The ambiguous position of a wife, as an adult with legal rights and a separate family background, but at the same time culturally subordinate to a husband, probably provided more scope for moralists to define correct behaviour of men, but also for wives to add their own voice in the debate. It is for this reason that we hear more about incidents of confinement involving wives than those involving children, either male or female. In all cases concerning free members of the household, it is clear, however, that domestic discipline could include or could be recommended to include spatial segregation, be this within the house, in particular exclusion from central spaces, such as dining rooms, or to a separate domestic space altogether. Such measures were justified by highlighting the deflection of shame from the core family unit and, particularly in a Christian context, the moral improvement of the individual concerned. Where such treatment exceeded an order just to stay indoors, especially where it included confinement in small and dark or underground places under guard behind walls instead of curtains, however, it was easy for those with an interest in discrediting whoever had imposed it to draw parallels with the treatment of slaves and with the public prison.

Imprisonment as a domestic penalty for slaves Unsurprisingly, it is in the context of slave management that we hear most about formal imprisonment as a domestic penalty. Kyle Harper has recently argued that the way a late antique master treated a slave depended on many different factors, such as the tasks a slave performed, the gender of slaves and physical proximity between master and slave. As a consequence, there is no way we can generalise on techniques of slave domination, which 59

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CJ 5.17.8 (449): si se verberibus, quae ab ingenuis aliena sunt, adficientem probaverit. On flogging wives in classical antiquity see Saller (1998) 85–91. Bagnall (1987) 59; Cooper (2007b) 159–160; for discussion of these papyri see also Bryen (2013) 179–182.

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customarily included incentives as well as punishment. At the same time, it is clear that where slave punishment was advised and administered its focus was on visibility, exemplarity and deterrence. Furthermore, masters seem to have been commonly concerned not to impose punishment that infringed on a slave’s productivity.61 Although we cannot draw any firm conclusions about the frequency of imprisoning slaves, it certainly played a role within this system, but its function was diametrically opposed to imprisonment of freeborn members of the household. Rather than shielding a culprit from the public gaze to protect the family’s honour, confinement of slaves meant to highlight bodily submission and was usually connected to work. Although agricultural slavery persisted in late antiquity, we know most about the punishment of urban domestic slaves, mainly because our most extensive sources on slave management from the late antique period, Christians’ moralising preaching about slave treatment to an urban audience, usually addressed the immediate level of interaction between masters and slaves in the house.62 Within the urban context of slavery, the predominant kind of punishment was whipping, the most ordered and direct submission of the body and, as we have seen in Chapter 1, at the heart of an ancient understanding of pain in the learning process of those considered ignorant due to age or status.63 Slaves should fear their masters; this would ensure their obedience and docility. Christian authors developed the theme, as they endorsed existing social hierarchies, even where they consoled those at the bottom of society, the poor and the unfree, that their price of salvation was nigh as a result. Masters were urged to minimise cruel treatment, but not to give up painful punishment altogether. The trick was to administer such punishment with the correct emotional attitude, without anger or passion.64 In two laws, from 319 and 326/9 respectively, included in the Theodosian Code under the heading De emendatione servorum, Constantine assured masters that they did not face a murder charge if a slave had died as a result of the exercise of potestas domestica with the aim of correction (correctio). Among forms of correction that were considered acceptable and ‘impassionate’, were beating with whips or leathern scourges and prolonged submission ‘to chains for the sake of custody’ 61 63 64

Harper (2011) 219–223. 62 Nathan (2000) 169–175. Bradley (1987) 118–119; Nathan (2000) 177; Harper (2011) 228–230. On slave fear as a method of control Bradley (1987) 113–114, 134. On Christian ideas of slave punishment see John Chrysostom, Against the Jews 8.6 (PG 48:935–937); John Chrysostom, Acts of the Apostles 15 (PG 60:126).

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(custodiae causa in vincla).65 A similar view on homicide charges for slave killing was already expressed in the Sententiae of Paul from the time of Diocletian, so Constantine seems to have replicated a legal tradition here.66 If we take these laws as indicative, we can conclude that vincula were indeed a common slave punishment, for Constantine certainly meant to clarify slave masters’ and judges’ confusion in the face of legal interventions against maltreatment of slaves over the course of the second and third centuries.67 Indeed, after flogging, placing a slave in vincula or its Greek equivalent δεσμοί is the most attested form of slave punishment also in literary sources, and chains were often presented as a conspicuous symbol of slavery.68 Vincula and δεσμοί are, however, not unequivocal terms. As we have seen above with reference to the public penal process, they were umbrella terms denoting imprisonment itself, forced labour (that could also be accompanied by enchainment) or simple enchainment.69 Where slave punishment is concerned, we cannot automatically assume, therefore, that chains also meant spatial confinement, as has sometimes been done.70 In an elaboration on the necessity to patiently endure worldly existence, Basil of Caesarea gave an insight into the types of penalties that could be imposed on a slave: Are you a slave? Even then there is always someone below you. Give thanks that you are placed above someone, that you are not condemned to the mill, that you are not flogged! But even this one has occasion to be grateful. He

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CTh 9.12.1 (319) = CJ 9.14.1; CTh 9.12.2 (326/329). Forms of punishment that were not deemed ‘corrective’ were: beating with clubs or stones, inflicting a fatal wound with a weapon, hanging, poisoning, throwing a slave from a high place, public laceration of the body with iron hooks, and burning or amputating limbs. See also Gaius, epit. 1.3 (FIRA ii:235): sed distringendi in servos dominis pro sua potestate permittitur; occidendi tamen servos suos domini licentiam non habebunt, nisi forte servus, dum pro culpae modo caeditur, casu forsitan moriatur, which clearly reflects this legislation. For further comment see Lovato (1994) 174–176. Pauli Sententiae 5.23.6 (FIRA ii:408): servus si plagis defecerit, nisi id dolo fiat, dominus homicidii reus non potest postulari; modum enim castigandi et in servorum coercitione placuit temperari. Note, however, that the Sententiae also have textual layers that include subsequent late Roman law, so it is not always possible to distinguish between Diocletian and later influences, see Liebs (1995) 151–170. For an overview of Roman law on slave maltreatment see Buckland (1908) 38. The evidence for this type of punishment is vast and originates from across the late Roman empire. See, for example: Ambrose, fug. saec. 3.15 (CSEL 32, 2, 175); Augustine, City of God 21.11 (CSEL 22:539); Claudian, in Eutr. 2.342–2.345 (ed. J. Koch (Leipzig: Teubner, 1893, 79); John Chrysostom, On Virginity 41.2 (SC 125:236–238); John Chrysostom, Homily on I Corinthians 40. 5 (PG 61:354). On the symbolism of slave chains see Harper (2011) 231. See above Chapter 5. See Mommsen (1899) 962; Mayer-Maly (1957) 324. The latter analysed the directive in early imperial legal sources to hand slaves publicly convicted for a minor crime back to their masters sub poena vinculorum, which ensured both their punishment and prevented economic loss for the master.

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Significantly, in this penal kaleidoscope there is no mention of simple spatial confinement as punishment. Spatial confinement was linked to work in the flour mill, an issue to which we will return below. The wearing of iron chains or the placement in wooden stocks, in turn, was clearly not envisaged to be the same as being imprisoned indoors. In fact, slave chains often seem to have been in the form of footshackles (conpedes) mentioned in both literary texts and, in their iron forms, attested in the archaeological record, which allowed slaves to move about. This was a penalty imposed on both male and female slaves.72 We hear of slaves having been put in chains for running away or roaming the streets, where an impediment of movement made sense. However, Augustine also claimed that slaves were put in chains for years on end for as little as insulting a master, while Maximus of Turin attested the same for a slave’s slowness, and Ambrose and others for theft. Even if we take into account the polemical character of these passages, they confirm that penal choices were down to the master’s discretion and that the prevention of escape was perhaps not the most important motivation behind the imposition of chains. Shaming through visible submission of the body also played a role.73 Imposition of carcer or δεσμωτήριον, terms that imply spatial confinement similar to the public prison, was also at times mentioned as a punishment for slaves. Ambrose, for example, claimed that slaves did not fear anything more than the punishment with carcer and vincula.74 In a series of sermons delivered during Lent, Leo of Rome urged masters to adopt a lenient attitude towards their slaves and not to succumb to a desire for vengeance when offended. They should, as a consequence, not punish 71

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Basil of Caesarea, Hom. In martyrem Iulittam 6 (PG 31:252): Οἰκέτηϛ εἶ;῎Εχειϛ τὸν σεαυτοῦ ταπεινότερον· εὐχαπίστει, ὃτι ἑνὸϛ ὑπερέχειϛ, ὅτι μὴ ἐν τῶ̣ μυλῶνι καταδεδίκασαι, ὅτι μὴ πληγὰϛ λαμβάνειϛ. Οὐκ ἐπιλείψουσιν οὐδὲ τοῦτον αἱ τοῦ εὐχαριστεῖν ἀϕορμαί. Οὐ γὰρ ἔχει πέδαϛ, οὐ δέδεται ἐν ξύλω̣. ҅Ο δεσμώτηϛ ἕχει τὸ ζη̣̑ ν ἀρκοῦσαν ἀϕορμὴν εἰϛ εὐχαριστίαν· ἥλιον ὁρᾶ̣ ἀναπνεῖ τὸν ἀέρα, ἐπὶ τούτοιϛ εὐχαριστεῖ. Lactantius, de ira 5.12 (SC 289:108); Claudian, in Eutr. 2.342 (ed. J. Koch (Leipzig: Teubner, 1893, 79); John Chrysostom, Homily on Genesis 39.4 (PG 53:366): τοῖϛ ποσὶ δεσμὰ; Augustine, serm. 161.9 (PL 38:883); Maximus of Turin, serm. 36.3 (CC 23:142–143); Gregory of Tours, Virt. Mart. 3.41 (MGH SRM 1.2:192). For the archaeological evidence on iron footshackles see Henning (1992) 408. Running away: John Chrysostom, Homily about the Statues 2.4 (PG 49:39); slave-girls roaming the streets: John Chrysostom, Homily on Genesis 39.4 (PG 53:366); insults: Augustine, City of God 21.11 (CC 48:777); slowness: Maximus of Turin, serm. 36.3 (CC 23:142–143); theft: Ambrose, fug. saec. 3.15 (CSEL 32.2:175); John Chrysosostom, Homily on Genesis 37.5 (PG 53:349). Ambrose, Tob. 8.31 (CSEL 32.2:535).

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their slaves with prison in a dark place (carcer, claustra poenalia, custodia tenebrosa) or chains (vincula). Furthermore, they should fashion their behaviour after the example of the Christian emperors who, in this very period of Easter, were in the habit to ‘release from chains’ (vincula solvantur).75 The reference to imperial amnesties at Easter, however, raises the question whether Leo was here describing actual practices of punishment in the household, or whether carcer et vincula was not simply a phrase believed to aptly underpin a discourse on clemency modelled on imperial conduct and public penal processes. A more realistic picture was drawn by Augustine, in a sermon on the necessity to do good not out of fear for punishment, but love for God. A slave, he argued, usually altered behaviour only out of fear, for he did not love his master. Among the types of punishment inflicted on the trembling slave, Augustine mentioned flogging (verberare), chains (compedes), prison (carcer) and condemnation to the flour mill (pistrinum).76 It may be possible that Augustine was here following a customary view on these penalties as being gradually more severe. John Chrysostom mentioned imprisonment in a δεσμωτήριον as a penalty for theft by a slave. This comment was part of a sermon on woman’s shameful attachment to clothes and jewellery. If a slave stole one of these objects, women were prone to have the whole household whipped or imprisoned. John clearly disapproved of such behaviour and expected the men in his audience to do so as well. This may mean that John, and others, thought imprisonment should be reserved for serious misdeeds, rather than trivialities, matters that only women became agitated about.77 Elsewhere, in fact, drawing a parallel between God and slave-masters, John told of the master who had rightfully thrown his slaves into prison (εἰϛ δεσμωτήριον ἐμβάλλονταϛ) for many great offences (πολλὰ καὶ μεγάλα ἁμαρτήματα).78 Among such misbehaving slaves clearly were those who tried to run away, for whom John suggested there was no other remedy than locking them away.79 In reality, of course, the reasons to imprison slaves could have been myriad. A slave, John Chrysostom said, may be locked up to teach other slaves how not to 75

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Leo, serm. 26.5 (SC 49bis:74–76); 27.5 (SC 49bis:88–90); 28.3 (SC 49bis:98); 29.6 (SC 49bis:112–114); 31.3 (SC 49bis:136); 35.4 (SC 49bis:178). Augustine, serm. 161.9 (PL 38:883). John Chrysostom, Homily on Genesis 37.5 (PG 53:349–350). The use of the δεσμωτήριον as unreasonable punishment inflicted on slaves by female masters – this time widows who did not know how else to control their slave-folk – was also mentioned in John Chrysostom, de non iterando coniugio 2.4 (SC 125:184–186). John Chrysostom, Against the Jews 5.5 (PG 48:891). John Chrysostom, Homily about the Statues 2.4 (PG 49:39).

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behave.80 He also claimed that slaves were imprisoned for spying on their masters, while, in turn, the abusive husband from fourth-century Egypt mentioned above incarcerated his wife’s slaves and his own to test their loyalty.81 Despite the terminology of carcer and δεσμωτήριον (provided that these do not refer to sending slaves to the public prison), there is little evidence that urban houses had a formal, designated prison space for unruly slaves in late antiquity. Rather, existing spaces were used flexibly for slave confinement. In his sermon About the Statues, meant to deter his Antiochene community awaiting imperial property confiscations for rioting in 386 from too close attachment to their elusive wealth, John Chrysostom aroused an image familiar to his audience, of a fugitive and re-captured slave, who simply could not be secured: Should you throw over him ten thousand chains, he will make off dragging his chains after him. Frequently, indeed, have those who possessed him shut him up with bars and doors (μοχλοῖϛ καὶ θύραιϛ), placing their slaves round about for guards (ϕύλακαϛ). But he has over-persuaded these very servants, and has fled away together with his guards (τῶν ϕυλαττόντων); dragging his keepers after him like a chain, so little security was there in this custody (ϕυλακῆϛ).82

John Chrysostom’s description makes it clear how much giving occasion to other slaves to observe punishment meant to slave-owners, to the extent that they allowed for much communication between detained and other slaves and hence compromised the prevention of the formers’ escape. This suggests an informal use of space, rather than a formal ‘house prison’. There may have been numerous places in the late Roman house where facilities for confinement of slaves would have been found, although it is perhaps most likely that underground spaces were used where possible, not necessarily to prevent escape, but visibly to underline the act of outcasting. Roman domestic buildings were often serviced by slaves through semisubterranean underground corridors, cryptoporticoes, which created a unique ‘upstairs–downstairs’ scenario where the serene world of the freeborn household was manifestly set apart from the dark and dirty world of slave labour. We can imagine that domestic punitive methods sought to exploit this marked distance between the free and the unfree by 80 81 82

John Chrysostom, opp. 3.3 (PG 47:352). John Chrysostom, On Virginity 52.7 (SC 125:296); P. Oxy. vi 903. Homily about the Statues 2.4 (PG 49:39; transl. NPNF 9:348); also see John Chrysostom, In ascensionem 4 (PG 50:448).

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condemning misbehaving members of the latter to remain in this slave environment for lengthy periods of time, which, at the same time, did not infringe on their ability to perform work.83 The husband from Egypt shut his own and his wife’s slaves up ‘under the ground’ (εἰς τὰ κατάγαια), and John Chrysostom at times seems to refer to underground imprisonment of urban slaves.84 To be sure, up to the fourth century the term ergastulum appears in sources describing slave management, which has at times been taken as referencing domestic prison space.85 However, the term more likely indicated either a group of rural slaves working together, and therefore chained together during day-time, or the space where these slaves were held at night.86 Every estate, the first-century agricultural writer Columella suggested, should have such living quarters, distinct from those of the unfettered slaves. It should be underground, but not window-less, so as not to endanger slaves’ access to fresh air.87 Such architectural prescriptions were, however, purely idealistic, as the complete lack of archaeological evidence for comparable spaces confirms. As Annalisa Marzano has recently argued, there never seems to have been any systematic building of prison-like barracks in the architectural history of Roman villas.88 There was hence, true to the origin of the word from the Greek ergasterion (workshop), a strong connection between ergastulum and labour, for the emphasis was not so much on the spatial and custodial issue, but on management of a workforce through chaining and housing them together. The primary use of the term was not with reference to punishment, but to the exploitation of slave labour on large estates.89 This does not exclude, of course, that putting a slave with a group of rural fettered slaves who were assigned to the same task and held together over night could be a form of punishment, also in the late antique period.90 83

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On cryptoporticoes see Marzano (2007) 150. At 153 Marzano mentions a find from an underground storage room at a Pompeian villa of a skeleton with a neck collar, which she interprets as a slave put there for punishment. P. Oxy. vi 903; John Chrysostom, Against the Jews 5.5 (PG 48:891). Dunbabin (2002) 21–24. This interpretation hinges mainly on the use of the term ergastulum in early medieval monastic literature, see further below Chapter 8. For a nuanced discussion of the term ergastulum see Etienne (1974) 249–266; Marzano (2012) 2488–2489. Columella, de re rustica 1.6.3 (Loeb 66). 88 Marzano (2007) 148–153. Etienne (1974) 264; Bradley (1987) 119–120. Pavón Torrejón (2003) 210. See Seneca, de ira 3.32.1–3.32.3 (Loeb 332) on masters’ customary habit to condemn to ergastulum, which he, for once, criticised. See also Livy, Roman History 7.4.4–7.4.5 (Loeb 368): a critique of the dictator of 362 BC, Lucius Manlius, for having sent his son to an ergastulum, apparently on one of his rural properties.

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Still in the early fourth century, Lactantius explained that a fugitive slave deserved ‘lashes and chains (vinculis) and ergastulum and crucifixion (crux) and every type of punishment’.91 It may also be possible that when John Chrysostom mentioned an urban slave being condemned to a δεσμωτήριον, he envisaged transfer to a rural group of fettered slaves, for δεσμωτήριον may have been the Greek equivalent of ergastulum used in this sense.92 At least in the late antique West, large estates that predominantly ran on slave labour continued well into the fifth century, perhaps due to low population rates that made wage labour, common in the East in this period, impracticable.93 The archaeological record shows a widespread use of footshackles on third and fourth-century imperial estates in Northern Gaul that may indicate a use of slave-gangs, although, again, there is little evidence that these slaves were housed in purpose-built barracks, underground or otherwise.94 It may hence well be that Lactantius recommended enlisting misbehaving urban slaves into this rural workforce. While not explicitly using the term ergastulum, many further late antique commentators on slave-life also mentioned the transfer to rural work as a customary punishment. Late Roman slave-masters, as their classical predecessors, usually had their slaves organised in a hierarchy of labour, which may have been based on skills (such as the ability to read and write in order to manage financial accounts or literary tasks, or the knowledge of a certain craft). Such hierarchy could be reshuffled according to behaviour. A domestic slave in charge of his master’s wardrobe, for example, could be made to guard the door of the house upon having committed an offence, or even to clean the sewers of the house, a most blatant form of degradation. Often, however, misbehaving slaves were sent to work on the rural estates of the master.95 We hear about this practice mostly in the context of the provincial curial ranks, which made up the listeners of many late antique bishops’ sermons, such as those of Augustine, John Chrysostom and Basil of Caesarea. Their landholdings lay close to the 91

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Lactantius, Div. Inst. 5.18 (CSEL 19.1:460): verberibus et vinculis et ergastulo et cruce et omni malo dignissimus iudicatur. See Plutarch, Tiberius and Caius Gracchus 8 (Loeb 169): δεσμωτηρίων δὲ βαρβαρικῶν (‘gangs of foreign slaves’). Harper (2011) 144–158. 94 Henning (2008) 33–53; see also Harper (2011) 196–197. Cleaning the sewers: Augustine, de libero arbitrio 3.9.27 (CC 29:291); doorkeeping: Augustine, en. psalm. 103.4.10 (CC 40:1530). On the hierarchy of labour see Klein (1988) 157–160. Urban slaves threatened with being sent to the country for punishment are also mentioned in previous centuries: Horace, Sat. 2.7.118 (Loeb 234); Juvenal 8.179 (Loeb 338), using the term ergastula; D 38.5.35.3 (Ulpian).

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cities where they resided, which made the punitive or rewarding transfer of slaves between urban and rural properties a feasible disciplinary option.96 In the countryside, culprits could be assigned to work in the fields or to the industrial enterprises of the ancient household, like the manufacture of bricks. Most frequently, however, slaves seem to have been assigned to work in the flour mill (pistrinum) as a form of punishment.97 Work in mills was considered severe, for it was dangerous, physically demanding, limiting mobility, but also particularly degrading for male slaves as it was seen as women’s or animals’ work.98 The stark humiliation slaves may have felt when assigned to the mill is reflected in the story Augustine told about a group of rebellious slaves who, when they got hold of their masters, forced them to work in the mill ‘like the most contemptible animals’.99 Most writers referred to male slaves punished in this way, but work assignment, particularly in the mill, could also be imposed on female slaves.100 While these penalties, due to the presence of fetters or the assignment to a work-space, had a custodial aspect, their prime purpose was exploitation of the body for social and economic purposes. The focus was on work degradation and the humiliation visible to other slaves and onlookers that came with it, through personal distance from the master, the proximity to unclean environments, separation from urban life as well as a slave’s family. Working in a mill, in particular, was a ‘reformative’ penalty, at least according to Gregory of Nyssa, for it aimed at restoring the slave to more docile behaviour.101 Common sense would suggest, even though the surviving evidence does not allow for conclusive estimates, that idle custody of slaves for punishment was rare. Even fugitive slaves were often branded or given a neck collar to mark out their shameful misbehaviour and to keep them in the productivity cycle of the household at the same time.102 Shutting up slaves in a formal (and hence also potentially costly) 96 97

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99 100 101

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On curiales’ slaveholdings in late antiquity see Harper (2011) 184–185; Klein (1988) 148–149. Fields: Ambrose, apol. Dav. 1.14.67 (SC 239:168); mills: Basil of Caesarea, hom. in martyrem Iulittam 6 (PG 31:252); Libanius, or. 25.13, decl. 1.147; decl. 33.33 (ed. R. Foerster, vols. 2, 5 and 7 (Leipzig: Teubner, 1904, 1909 and 1913, 543, 98 and 98); Augustine, serm. 161.9.9 (PL 38:883); de spir. et litt. 33.58 (CSEL 60:217); de libero arbitrio 3.9.27 (CC 29:291); en. psalm. 122.6 (CC 40:1819); Gregory of Nyssa, bapt. diff. (PG 46:428). Harper (2011) 138–139. It is not clear, however, whether slave work involved turning mills, in addition to loading and emptying mills, and possibly producing the bread. Augustine, ep. 185.15 (CSEL 57:14): tamquam iumenta contemptibilia. Procopius of Gaza, comm. in Isaiam 47 (PG 87.2:2444); see Harper (2011) 138. Gregory of Nyssa, bapt. diff. (PG 46:428): ἀνδραπόδου πονηροῦ ἡ προαίρεσιϛ· μύλωνοϛ ἀξίου καὶ δεσμοῦ καὶ μαστίζων, ἐκδῦναι μόνον τὰϛ τιμωρίαϛ σπουδάζοντοϛ. Nathan (2000) 177. Branding of slaves was prohibited in late antiquity, but still practiced. Gradually it may have come to be replaced by the assignment of inscribed neck collars; see Hillner (2001) 193–216.

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house prison with nothing to do would not have fulfilled the purposes of domestic slave punishment: visibility and deterrence on the one hand and the safeguarding of slaves’ ability to work on the other. The same can be said for the management of coloni, to which we will now turn.

‘Private prisons’, ‘estate prisons’ and the late antique colonate In a classic article published in 1968, Olivia Robinson investigated late antique laws that prohibited so-called ‘private prisons’ (carceres privati).103 She came to the conclusion that such institutions were a widespread phenomenon across the late Roman countryside, linked to the rise of large estates that characterised rural regions in this period. They were both a consequence of the weakness of the late Roman state vis-à-vis great landlords and of rural troubles such as brigandage and wandering heretics, which allowed but also forced estate owners to take the law into their own hands. These conclusions were much indebted to Edward Hardy’s seminal book The Large Estates of Byzantine Egypt (1931). On the basis of papyri evidence mainly from Oxyrhynchus and the so-called archive of the Apion family, which, at the time had only just begun to be examined, Hardy had argued that, at least in Egypt from the fifth century on, the authority of the great landowners started to eclipse that of the state in a ‘semi-feudal’ manner. The main focus of Hardy’s work was the alleged failure of estates like that of the Apions to pay taxes, their reliance on rentreturns from tenants (coloni) bound to their land like serfs, and the resulting autarkic nature of their estate divorced from urban economy and trade. One aspect of this scenario was landowners assuming a judicial role, to settle disputes among their tenant-serfs, and to combat social misconduct in the local community, and for this, Hardy assumed, they maintained prison facilities. According to Hardy, a number of late antique papyri mention such an ‘estate prison’ (ϕυλακή), and this may be the same as the carcer privatus referenced, and prohibited, in imperial law of roughly the same period.104 Building on Hardy’s approach, Roger Rémondon assumed that the discrepancy between the vision of an ordered society that transpired from late antique laws, including that on the prohibition of carceres privati, and the disordered realities of landowners evading taxes as well as keeping their own armed forces and prisons was only superficially contradictory. The state, while rhetorically prohibiting it, tolerated such behaviour as it 103

Robinson (1968) 389–398.

104

Hardy (1931) 67–79.

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allowed, when needed, the mobilisation of landowners’ resources for public purposes, for example the maintenance of law and order.105 Jean Gascou developed this perspective in an influential article published in 1985, by arguing, in direct defiance of Hardy’s ‘semi-feudal’ model, that the association of the rural population as tenants to a landed estate, which became responsible for collecting their taxes, was a successful imperial strategy to harness private power for public benefit, a form of systematic imposition of a liturgy that turned the estate into a ‘semi-public’ institution and saved public expenses. Rather than usurping legal power, private prisons were part of this system, as they indirectly helped the state to combat crime, with a function equivalent to the public prison.106 It needs to be stressed that Hardy considered the evidence from the papyri to be inconclusive, even where he thought that the laws pointed strongly in the direction of ‘estate prisons’. Nonetheless, his interpretation and its elaborations by Robinson, Rémondon and Gascou of the role of private prison in estate jurisdiction has had a noticeable influence on historiography until very recently.107 The connection between the ϕυλακή of the papyri, the carcer privatus of the law, and the alleged light they shed on the role of estate owners in the combat of crime in the countryside, however, has also begun to be revisited. As I will argue, the laws that prohibited private prisons concerned entirely different phenomena of ‘imprisonment’ than those mentioned in the papyri, which were perfectly legal institutions. Furthermore – and here I will build on JensUwe Krause’s excellent work – neither laws nor papyri concerned the use of prisons in private criminal jurisdiction against coloni. Rather, the purpose of carceres mentioned in the laws was mostly to coerce debt or other forms of financial benefits. The purpose of the ‘household’-ϕυλακή in most papyri was custody (though perhaps not technically imprisonment) of a particular type of tenants, the coloni adscripticii, in order to safeguard tax liabilities. Neither carcer privatus nor the ϕυλακή of the papyri, however, are likely to have referred to a physical space on estates routinely and exclusively used for imprisonment that would merit a label ‘estate prison’. The earliest late Roman law to mention carceres privati was issued by Theodosius, Arcadius and Valentinian II and addressed to the Prefect of Egypt. It declared that sending an accused person (reus) to a private prison 105 106

107

Rémondon (1974) 17–37. Gascou (1985) 1–90, on private prisons: 26. I follow here the excellent overview of historiographical developments of Sarris (2006) 131–148. See e.g. Torallas Tovar (2003) 209–223; Marcone (2004) 41–52; Torallas (2006) 111–112. All discuss the role of private prisons in the combat of crime.

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(carcer privatus) was an act of treason.108 Two further late Roman laws on private prisons are known. The first one, which Zeno addressed to the Praetorian Prefect Basilius in 486, prohibited anyone in Alexandria, Egypt or elsewhere in the empire ‘to impose custody in a private prison either on his estate or in his house’ (vel in agris suis aut ubicumque domi privati carceris exercere custodiam) and, again, equated this to treason. In 529 Justinian renewed this constitution, with a clear reference to Zeno’s previous law. He also published Zeno’s law, but not Theodosius’, alongside his own in his Code. Whether in town and country, private prisons (ἰδιωτικὰϛ ϕυλακάϛ) were prohibited, and anyone putting someone into a private prison for a time was to be punished by being sentenced to detention in the public prison of equal length.109 The term reus in Theodosius’s law may suggest that here the private prison was envisaged to play a role in a formal judicial process, where someone had been publicly accused of a crime.110 This could mean that the original issue of the law, which was heavily truncated by the editors of the Theodosian Code, and its reference to ‘treason’, probably need to be seen in the context of other fourth-century laws, discussed in the previous chapter, that barred imperial, military and civic officials without judicial competences from holding defendants. As far as the law was concerned, such un-authorised prisons may have been considered ‘private’. This is shown by the (possibly) late fifth-century Edict of Theodoric, which certainly followed Roman legal terminology, and also prohibited custody imposed by an official without decree of a magistrate (iudex), calling this privata custodia.111 The object of Theodosius’s law may therefore have been neither the role of private individuals acting as illicit judges, nor the same as that of Zeno’s and Justinian’s much later laws, but illegal prison facilities within the imperial administration. In the case of Zeno’s and Justinian’s laws, Jens-Uwe Krause has convincingly argued that they dealt with coercive imprisonment, in particular of debtors, for Justinian explained that those running a private prison would lose any financial claims against those imprisoned.112 Zeno and Justinian seem to have primarily reacted to the situation in Egypt, presumably because they had been alerted to local 108 110 111

112

109 CTh 9.11.1 (388). CJ 9.5.1 (486); CJ 9.5.2 (529). On the meaning of reus in legal texts see Heumann, Seckel (1971) 517–518. Ed. Th. 8 (FIRA ii:685): sine iudicis auctoritate nullum ingenuorum debere teneri. Sine competentis iudicis praecepto nullus ingenuorum sustineat detentionis iniuriam, aut ad iudicium deducatur vel in privata habeatur cuiuslibet praesumptione custodia. On the Edict of Theodoric and its relationship to Roman law see Lafferty (2010) 337–364. Krause (1987) 115–116; Krause (1996) 60.

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circumstances there. We hear indeed much about such circumstances from Egyptian papyri. For example, in 568 a widow from Antinoopolis, called Sophia, asked the dux of the Thebaid for help against a man who had confined herself and her child for unnamed reasons, but probably involving the inheritance from her husband.113 Both Zeno and Justinian, however, sought to extend their regulations to the entire empire, perhaps because they knew that private coercive imprisonment was an endemic problem. Many sources indeed confirm that coercive imprisonment in private spaces, as much as that in public prisons discussed in the previous chapter, was rife throughout the empire, for a variety of reasons. It is recorded, for example, in the spectacular fraud case of Antoninus, bishop of Fussala and Augustine of Hippo’s former protégé. Antoninus made the estate steward of the church of Fussala detain a man in private imprisonment (custodia privata) to force him to sell the bishop his land at a price below its real value.114 Ammianus Marcellinus told of fourth-century Roman senators who confined their debtors like slaves until they paid up.115 Also in Rome, in 384, the senator Fulgentius had called on two agentes in rebus to detain in his own house a trial witness against himself.116 John Chrysostom in one of his sermons condemned the creditor who without mercy pursued his debtors, seized them and imprisoned them, and even imprisoned those who did not owe him anything.117 Callinicus, the hagiographer of the fifthcentury holy man Hypatius of Bithynia, narrated the story of the imperial chamberlain Urbicius who asked Hypatius to cure a man, Aetius, who had been confined and driven insane by Urbicius’ brother. The circumstances are unclear, but since Aetius was wealthy and ultimately left his property to Urbicius, we can imagine that behind his imprisonment were questions of inheritance.118 Procopius accused the empress Theodora of keeping a private prison in her palace, in ‘concealed’ rooms (ἀπόκρυϕα) which were completely hidden, dark and isolated, and where she sent those who insulted her without trial. This accusation was particularly scathing, as Procopius and his audience must have known quite well that Justinian 113

114 115

116 117

118

P. Cair. Masp. i 67005 (ca. 568); see also P. Grenf. ii 78 (307; for comment see Bryen (2013) 118–120); P. Abinn, 51–52 (346; for comment see Bryen (2013) 92–94); P.Lond. v 1830 (fourth century). Augustine, ep. 20* (CSEL 88:110). Ammianus Marcellinus, Roman History 28.4.25 (Loeb 152–153). He probably refers to a case where a defendant voluntarily became the accuser’s debtor in order to avoid a criminal trial. Symmachus, Relatio 23.8 (Barrow 130) and see Harries (1999) 113. John Chrysostom, Homily on John 67.2 (PG 59:372). He used the term εἰρκτὴ, which suggests private imprisonment. Callinicus, Life of Hypatius 12.4–12.5 (SC 177:116); see PLRE ii Urbicius 1, 1189.

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himself had prohibited such facilities.119 Not all of these stories need necessarily be true; yet, they show that imposing private imprisonment could be mobilised as a distinct literary motif to frame utterly abusive and inept behaviour of the powerful, including, as we have seen above in the context of wife and children, at the domestic level. If we want to look for a contradiction between the norms promulgated by the laws and the situation on the ground, as postulated by Rémondon, private imprisonment certainly presents a case. It continued to exist despite the repeated attempts to ban it. At the same time, there is little evidence that late Roman authorities universally condoned private imprisonment. As the papyri show, people in late Roman Egypt knew that, under the right circumstances, they could get help against such illicit behaviour, even if it was a cumbersome process. Furthermore, coercive imprisonment for debt or extortion of money or land was not new and had little to do with the rise of great estates.120 It had long been established that a public charge could be brought for coercive private imprisonment under the Lex Iulia de vi.121 As the second- and third-century jurists had specified under the Lex Iulia, any claim to property seized through confinement was void.122 These discussions among jurists show that private individuals had been shutting each other up long before the fourth century. The issue of debt was a little more complex, for, as we have seen, archaic Roman and Hellenistic law had allowed for debt bondage.123 The late antique laws on private prisons, certainly those of Justinian and Zeno, sought to combat such persistent customs. As such, they had little to do with formal private criminal jurisdiction from which the state could have benefitted. Let us now turn to the papyri mentioning a household-ϕυλακή. These present an entirely different scenario, not the least because they give the impression of a formal and legally regulated use of private prisons. Our largest evidence for alleged ‘estate prisons’ in late antique Egypt derives from a series of papyri presenting a so-called deed of surety (ἐγγύη).124 These documents, dating from the fourth to the seventh centuries, were contracts between a landholding household and a third person who provided financial insurance that a labourer would remain on and work a piece of this land and pay the taxes (or possibly rent) for which he was liable. 119 121

122 123 124

Procopius, Secret History 3.21–3.29 (Loeb 38–40). 120 On the following see Krause (1996) 61. D 48.6.6 (Ulpian); D 4.2.22 (Paulus) and Pauli Sententiae 1.7.8 (FIRA ii:327); 5.6.14 (FIRA ii:395–6); 5.30 (FIRA ii:414); CJ 9.12.3 (293). D 22.3.20 (Iulianus); D 41.2.23.2 (Iavolenus); D 4.2.23.2 (Ulpian); D 48.19.28.7 (Callistratus). See above Chapter 5. For an extensive discussion of these documents see Palme (2003) 531–555.

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Some of these documents, though not all of them, also ordered those who gave warranty to collect the labourer from the ϕυλακή of their landowner’s household (oikos), and to return him there when ordered. These latter, mostly dating to the late sixth and seventh centuries, and mostly originating from the Apion archive and the Oxyrhynchyite nome, are usually interpreted as documents that established bail for fugitive, re-captured and confined coloni and arrangements against a potential second escape.125 The appearance of the term ἐν τῆ̣ ϕυλακῆ̣ in these deeds of surety, could, of course, be connected to the rise of more complex large estates in fifthand sixth-century Egypt, which also, in reflection of their social role, may have started to have formal prison space. It is reasonable to conclude, however, that it is also and perhaps more importantly connected to the simultaneous appearance of the georgoi enapographoi, or, as they are called in contemporary laws, coloni adscripticii, a particular type of tenant in the late antique countryside from the fifth century on.126 Both traditional and recent scholarship has extensively discussed these. Without going too much into the details of this complex debate, its results may be briefly summarised here, to better explain the meaning of the term ἐν τῆ̣ ϕυλακῆ̣ in the deeds of surety. From the fourth century on, legal, documentary and narrative sources register a category of late antique people called coloni, who appeared to be fiscally bound to the land they were working. Historians largely agree that their appearance in the sources was linked to the fiscal innovations under Diocletian and Constantine. These innovations demanded permanently tying each individual to a place of tax registration with a view to suppressing mobility and hence increasing tax return. For rural labourers, this place of tax registration on many occasions seems to have become the estate of their land-owning employer. The processes under which this happened are not very clear and are at the centre of the debate. Some scholars argue that the late Roman state compelled rural workers to register through a local landowner. Other historians conclude that the state came only to retrospectively institutionalise and regulate private relationships between rural workers and their landlords that may have reached back to social dependencies during the principate, or may have come into existence through contractual arrangement.127

125

126 127

Hardy (1931) 76; Fikhman (1991) 7–17; Krause (1996) 62; Mazza (2001), 122–124; Torallas (2006) 106–112; Hickey (2012a) 95. For papyri references see below. The relevant laws are collected in CJ 11.48. For excellent reviews of the historiography see Scheidel (2000) 727–732; Sarris (2006) 149–176.

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There is now, however, consensus that the extent of the colonate was less pronounced than previously thought. Not all those working the land (or indeed called coloni) in late antiquity were permanently tied to a great estate and hence also continued to pay taxes in the customary way, through their city. This also means that the colonate’s emergence was regionally and chronologically diverse.128 In the west, where rural mobility was by tradition not great, tenant-farming more widespread and rural people tied in patronage relationships to local landowners, it may have been a fairly automatic process that tenants registered with a great estate for tax purposes. In the east, and in particular in Egypt, where due to higher population density and more sophisticated market-oriented agricultural production there was more employment of mobile wagelabourers, permanent tax registration may have been a more gradual and patchy process. It is in the fifth- and sixth-century east that we encounter the terms coloni adscripticii or enapographoi georgoi. These terms describe tenants who a landlord registered on their city’s tax list, either as a tenant responsible for shouldering the tax burden attached to a particular plot on the landowner’s estate or as a tenant whose taxes were to be paid by the landlord.129 Again it is unclear whether such tax registration came about as an administrative imposition by the state, through coercion by landlords, for example of debtors, or through voluntary contract, which may have been attractive to wage-labourers in a competitive labour market.130 It is also unclear how many of such coloni adscripticii existed. What is clear is that, by becoming a colonus adscripticius, a tenant also committed to performing services for a landlord, such as, most importantly, pay rent, work the land and remaining on the estate.131 While the late Roman state acknowledged that coloni adscripticii were free, it increasingly came to define their status as ‘servile’, to emphasise, for its own tax purposes, limitations on their mobility. As Justinian declared in a law of 530 on the regulation of marriage between coloni, slaves and freeborn, a colonus adscripticius and his children stood, like slaves, under the potestas of a landowner.132 Even though their ‘servile status’ only concerned the relationship between coloni adscripticii and a landlord, not society at large, this 128

129

130 131 132

Grey (2007) 165; Sirks, A. J. B. (2008) 122; on regional differences in particular see Harper (2011) 153–154. This is a matter of debate. See for the different position Grey (2007) 171 and, in direct response, Sirks, A. J. B. (2008) 124–127. See also Banaji (2007) 97. For the attraction of the arrangement to tenants themselves see Sarris (2006) 174. For a detailed discussion of these services see Fikhman (2006) 190–250. CJ 11.48.21 (530).

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legal framework consolidated a landlord’s control over some rural labourers.133 To return to the subject of ‘estate prisons’, it seems to usually have been coloni adscripticii who were to be collected and re-presented ἐν τῆ̣ ϕυλακῆ̣ of a household in the deeds of surety that have this clause, as far as this can be reconstructed from the at times fragmentary evidence.134 This term ϕυλακή has, by those scholars who interpret the deeds of surety as documents bailing fugitive coloni, invariably been interpreted as denoting a place, the prison of a great estate.135 The interpretation may be confirmed by a further deed of surety from mid sixth-century Oxyrhynchus that clearly established bail of a wrongdoer. It was addressed to Menas, the steward of a church, and concerned a freedman (δουλελευθέρου) who had apparently stolen gold from the steward’s house. Three men now guaranteed for the return of the gold and promised to produce the freedman for this purpose ‘in a public place in this city, without recourse to holy precincts, divine images or any attempt at asylum, in the ϕυλακή of the hospital of the same holy church, where we received him’. Here the reference seems to be to an actual building.136 Restraining a fugitive colonus, through, as the law phrased it, putting him in chains, was something that already Constantine had allowed.137 As we have seen, the state was interested in reducing rural mobility, so it is no surprise that it gave landowners much freedom or even encouragement to deal with escape of those tied to the land for tax purposes.138 In this context then, we may be able to see an overlap between the private and the public spheres, in the sense that landowners benefited from keeping labourers prone to flight under control, if necessary through confinement or enchainment, while the state benefited from constraining fugitive 133 134

135 136

137

On the subtle distinctions between slaves and registered tenants see Grey (2007) 168. P. Oxy xviii 2203 (sixth century?); P.Oxy i 135 (579); P. Oxy xxvii 2478 (595/6); P. Oxy vi 996 (584); P. Oxy xxiv 2420 (610); P.Oxy lxx 4802 (600–625); PSI i 61 (609); PSI i 62 (613): ἐν τῆ̣ ϕυλακῆ̣ τοῦ ἐ[νδόξου ὑ]μῶν οἴκου; P. Mert. ii 98 (seventh century). The following papyri lack the clause, but are fragmentary, and may well have included it originally. All regard an enapographos georgos: PSI i 59 (596), from the Apion archive; P. Lond. iii 778 (= P. Oxy i 199 descr) (568), from the Apion archive; P. Heid. iii 248 (sixth/seventh century); SB xii 10944 (= P. Oxy i 200 descr.) (sixth century); PSI iii 180 (sixth/seventh century). For references see above n. 125. P.Oxy XIX 2238 (551): Παραϕέρονεν καὶ παραδόσομεν δημοσία̣ ἐπὶ ταύτηϛ τῆϛ πόλεωϛ ἐκτὸϛ ἁγίῶν περιβόλων καὶ θείων χαρακτήρων καὶ παντὸϛ τόπου προσϕυγῆϛ, ἔνθα αὐτὸν καὶ παρειλήϕαμεν ἐν τῆ̣ ϕυλακῆ̣ τοῦ νοσοκομίου τῆϛ αὐτῆϛ ἁγίαϛ ἐκκλησίαϛ. On church prisons see below Chapter 9. Also compare P.Oxy XVI 1835 (late fifth/early sixth century) on the bailing out of the wives of tax-debtors from (apparently) a public prison, which uses strikingly similar language to the deeds of surety. 138 CTh 5.17.1 (332); CJ 11.53.1 (371). Krause (1996) 61–63.

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tax-payers. At the same time, landowners may also have supplied space on their estates to hold tax-debtors, which, certainly from the time of Justinian on, was not entirely illegal, as we have seen in Chapter 5. A fragmentary seventh-century list named fourteen village-elders from Teruthis in the district of Oxyrhynchus as being in the ϕυλακή of the household of one Anianus, and may refer to tax-debt.139 Collaboration between civic authorities and private landlords, who often at least at the highest levels were identical anyway, was close, but we do not have to assume that this turned imprisonment on an estate formally into a ‘public institution’ or that such collaboration was a uniquely late antique development. As we have seen in the previous chapter, when it came to holding individuals, Roman state authorities had traditionally made use also of non-civic spaces. Certainly, some deeds of surety equated the ϕυλακή of a household to a public place. For example, Zacharias, the steward of the church of Oxyrhynchus declared in 595/6, in a deed of surety addressed to Flavius Apion with regard to one Aurelius Pambechius, georgos enapographos on the Apion estate, that he would ‘hand him over in a public place without recourse to any place of sanctuary or letter of safe-conduct, where I received him, in the ϕυλακή of your honoured household.’140 Hardy thought such incidents to be a scribe’s confusion of two different phrases, but its appearance in the papyri is too numerous to really warrant this assumption.141 The phrase, however, was usually accompanied by a customary prohibition for the insured person to seek asylum, presumably with another landlord, the church or perhaps a monastery, and the reference to a ‘public place’ where the fugitive was to be produced may have been meant to emphasise this provision. After all, the phrase also appears in the above mentioned document apparently bailing out the freedman from the nosokomion of the church (prohibiting him to seek church asylum) where it certainly did not mean to equate the nosokomion with a public institution whose maintenance was imposed on the church as a liturgy. Yet, there are features in these deeds of surety that complicate a neat picture of ‘estate prisons’. Strictly speaking, none of the deeds of surety 139 140

141

P. Oxy xvi 2056 (seventh century). On this list and its interpretation see Torallas (2006) 105. P. Oxy xxvii 2478 (595/6): παραδώσω ἐ[ν] δημοσίω̣ τόπω̣ ἐκτὸϛ παντὸϛ τόπου προσϕυγῆϛ καὶ λόγου ἔνθα αὐτὸν κ[αὶ] παρείληϕα ἐν τη̣̣̑ ϕυλακη̣̑ τοῦ ἐνδόξου ὑμω̑ ν οἴκου. See for comment on this papyrus Keenan, Manning, Yiftach-Firenko (2014) n. 8.3.4. The same formula appears in P.Oxy i 135 (579), P. Oxy vi 996 (584) and P. Mert. ii 98 (seventh century). The last document mentioned the ϕυλακή of Keles. Hardy (1931) 69 n.2.

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mentioned directly that they dealt with already fugitive and confined coloni (even though they clearly expected potential flight). Furthermore, there are deeds of surety predating the sixth century, which did not use the phrase ἐν τη̣̑ ϕυλακη̣̑ , and which, in consequence, have not been interpreted as documents establishing bail for fugitives. Still these are formally strikingly similar to those deeds of surety that use the phrase. In the earliest of these documents, for example, dating to 345 and addressed to a town councillor of Oxyrhynchus, the signee, a man called Aurelius Paris, a contractor for field irrigation, promised financial security to ensure that another man, Aurelius Aion, a wine-grower, would remain in the village of Amata, cultivate his land, ‘fulfilling everything which has been agreed by him’.142 The document may refer to a contract of employment on the town councillor’s land, or it may refer to an agreement on Aurelius Aion’s tax registration through the town councillor or the city of Oxyrhynchus. No mention is made of the ϕυλακή, or for that matter, of any place where Paris collected or was ordered to take Aion, if required. Neither is Aion called a georgos enapographos. In all other respects, however, the document, and other earlier ones are similar to the later deeds of surety that incorporate the missing aspects. Furthermore, some deeds of surety order labourers to be presented not in the ϕυλακή of a private household, but in a ‘public place of the city’ (ἐπὶ δημοσίου τόπου ἐπὶ τη̑ ϛ πόλεωϛ).143 In documents dated to the later sixth century, the public place in the city was at times further qualified as ἐν τῆ̣ ϕυλακῆ̣ τῆϛ αὐτῆϛ πόλεωϛ, as, for example, in a deed of surety dated 588 and addressed to a woman of illustrious senatorial rank called Flavia, from Oxyrhynchus, perhaps Flavia Anastasia, a well-known landowner. Where this phrase was used, the addressee of the contract was usually someone who also held a civic office connected to imperial tax collection, most notably, as we know Flavia Anastasia did, that of pagarch, the chief tax collector.144 Of course, as we have seen in Chapter 5, such civic officials 142

143

144

P. Wisc. I 12 (345). For a similar fourth-century document see P. Oslo iii 113 (346). See also P. Heid. iv 307 (450/5); P. Lond. v 1793 (472) for fifth-century documents that do not have the clause or mention georgoi enapographoi. P. Heid. iv 306 (413); SB xviii 13953 (492); P. Cairo masp. iii 67297 (535), from the archive of Dioscorus. Note, however, also the curious phrase in P.Lond.inv.2229 (sixth century), which orders return of apparently a georgos enapographos ἐν τη̣̣̑ ϕυλακ(η̣̑ ) τοῦ Καισαρίου ταύτηϛ τῆϛ πόλε(ωϛ), which may refer to the Caesareum of Oxyrhynchus, now possibly transformed into a church. The papyrus is too fragmentary to allow for establishing a firm context. For discussion see Hickey (2012b). P. Oxy xliv 3204 (588): παραδώσω ἐν δημοσίω̣ τόπω̣ [ἐκτὸ]ϛ παντὸϛ τόπου προσϕυγῆϛ καὶ λόγου ἔνθα αὐτὸν καὶ παρείληϕα, ἐν τη̣̣̑ ϕυλακη̣̣̑ τῆϛ αὐτῆϛ πόλεωϛ; see also P.Oxy lxix 4756 (590), also addressed to Flavia; PSI i 52 (between 602 and 647), addressed to the pagarch Flavius Iulianus;

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often maintained prison facilities, even though their use was not always an entirely legal one. As the pagarch was usually recruited from the ranks of wealthy landowners, the potential use of a public prison to restrain fugitive coloni perhaps emblematises the double nature of the contract: it was to ensure labour to the pagarchs in their role as landowners and tax to the pagarchs in their role as tax collectors. Yet, it might also be significant that the labourers in the deeds of surety that mention the ϕυλακή of a city usually do not seem to have been georgoi enapographoi. There also exist deeds of surety addressed to pagarchs that do not involve agricultural labourers at all, but a soldier, or a priest, to be presented to the public ϕυλακή. Whether they had committed an offence for which they needed to be bailed is unclear, but it is certainly unlikely that it was flight from the soil.145 The conclusion that those deeds of surety that invite for return of an insured person to a ϕυλακή, but only these, refer to already fugitive coloni, in fact hinges on the understanding of the term ϕυλακή as exclusively meaning prison, in the sense of a designated space of confinement on an estate or a city. Yet, ϕυλακή, just like vincula is an ambiguous term, but ‘prison building’ is only its secondary meaning. It denotes any form of custody or safe-keeping.146 It must be significant that the appearance of the phrase ἐν τη̣̑ ϕυλακη̣̑ in the deeds of surety, both that referring to the ϕυλακή of a household and that of a city, developed around the same time as the appearance of coloni adscripticii or georgoi enapographoi in contemporary sources and their distinction from other coloni, which in itself is a reflection of the ever tighter fiscal control that sixth- and seventhcentury public officials and landowners sought to exercise upon some of those who worked the land. We can very tentatively postulate the possibility, then, that the phrase ἐν τη̣̣̑ ϕυλακη̣̑ did not refer to the actual place where someone was to be produced and confined, but to the localisation of their tax liabilities: the presentation of the georgos enapographos, whenever required, ἐν τη̣̑ ϕυλακη̣̑ of his landowner confirmed that for fiscal purposes

145

146

see also P. Cairo masp. iii 67297 (535): a riparius; P. Heid. iv 306 (413): a nauarchus. These last two do not mention a ϕυλακή. On the pagarch see above Chapter 5 and on Flavia Anastasia as pagarch Banaji (2007) 150; PLRE iiia, Anastasia 4, 61. CPR 22.4 (625–645): ἐν τη̣̑ δ[ημοσία̣] ϕυλακη̣̑ ; CPR 24.24 (591–602). The latter features the phrase ἐν τη̣̑ δημοσία̣ εἰρκτη̣̑ . On the semantic range of ϕυλακή, most basically meaning ‘custody’ or ‘watch’ see Liddell, Scott (1996), s.v. ‘ϕυλακή’, 1960. See also Basil’s use of the term mentioned on p. 158 to describe husbands keeping their wives under control, which certainly did not refer to a wife’s prison: Basil of Caesarea, ep. 2 (PL 32:225). Note, however, that some papyri (though not necessarily the deeds of surety) clearly seem to refer to spaces of imprisonment on Egyptian estates, e.g. PSI viii 953, establishing wine-supply to those held in a space alternatively called ϕυλακή and δεσμωτὴριον τοῦ ἐνδóξου οἴκου.

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he was under control of the latter, while others remained registered directly through their city and hence were to be presented to their pagarch or other civic official.147 However we interpret the meaning of the term ἐν τη̣̑ ϕυλακη̣̑ , it mostly appears in the context of public tax or private debt liabilities. There is little evidence that late Roman landowners assumed criminal jurisdiction over their tenants, becoming responsible for the maintenance of law and order in the countryside with the state’s blessing, or that prisons played a role in such alleged processes.148 Certainly, several late Roman laws from the first half of the fifth century originating from the context of the Donatist schism in North Africa granted some punitive authority over coloni to landowners by stipulating that domini should return their slaves and coloni to the right faith through corporal punishment (verbera).149 The issue behind these laws was, however, less to prevent landowners from illicitly acting as judges in such cases, complete with the running of prisons, than from the suspicion that they, or rather their estate stewards, would do little about or even be complicit in such wrongdoing.150 A papyrus at times cited in the context of criminal jurisdiction by late antique landlords lists a number of people ἐν τη̣̑ ϕυλακη̣̑ , some of whom were apparently accused of cattle theft. Among those who had delivered the culprits were a defensor, a riparius, and a comes chartularius, titles that had an equivalent in the public realm. There was a high degree of overlap between titles of civic officials and estate officials in Byzantine Egypt, which makes it difficult to decide whether what we are dealing with here was a private context at all.151 Furthermore, the document’s date of origin may not be earlier than the eighth century. Yet, even if it can be dated to an earlier period and taken as referring to imprisonment on a landed estate, the papyrus does not present evidence for a landowner’s selfassumed or publicly imposed authority to police social misconduct in the countryside. Cattle theft was a wrongdoing first and foremost to the 147

148 149

150

151

See also Keenan, Manning, Yiftach-Firenko (2014) 438, where the ‘fiscal nature’ of deeds of sureties is stressed: ‘they exist to help protect the government’s revenue, not simply to control a semi-servile labor force’. Krause (1987) 115–116; Krause (1996) 62–63. CTh 16.5.52.4 (412): servos etiam dominorum admonitio vel colonos verberum crebrior ictus a prava religione revocabit; CTh 16.5.54.8 (414); NVal 23.3 (447). About landowners’ indifference towards belief on their estates see Krause (1987) 124–125 and Bowes (2008) 159. A similar concern was behind laws that ordered landowners to deliver heretics, deserters or robbers (latrones) hiding on their estates to the public courts: CTh 9.29.2 (383); CTh 7.18.7 (383); CTh 7.18.12 (403); CTh 16.5.52.1 (412); CJ 9.39.2 (451). Stud. Pal. X 252; for discussion see Hardy (1931) 70–71; Krause (1996) 62; Torallas (2006) 112.

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detriment of the landowner. As we have seen above, a master did not have the right to start a law-suit for theft against a slave, nor a patron against his freedmen, clients or employees. He was expected to deal with such behaviour internally.152 While we lack the evidence for whether this provision extended to coloni by the sixth century, we do know that a colonus adscripticius could not sue his landlord in any civil or charge him for a criminal matter, with the exception of extortion, precisely because, like a slave or freedman, he was under the landlord’s potestas.153 It can therefore not be excluded that the same may have applied the other way around, to protect a landlord’s honour. It was certainly under this provision that the church steward at Oxyrhynchus mentioned above acted against his freedman for the latter’s theft of gold. Some property-owners, then, may well have wished to sort out such behaviour by their dependents without interference of the public authorities, and had the right to do so. This right was not new in late antiquity, but its extension to coloni may have been. The terminology applied in the deeds of surety perhaps creates more riddles than it solves. Overall, the evidence is too inconclusive to firmly claim that there were private prisons on estates with a function equivalent to the public prison, whether in a semi-feudal manner or as a liturgy imposed by the state. From this also follows that we should not make the terminology of the papyri fit a preconceived idea of spatial features of late antique Egyptian estates, about which we have very insufficient knowledge. In light of what we know about late Roman domestic space and the management of domestic dependants, we should not imagine the ϕυλακή of the papyri (if it refers to a place) or indeed the carcer privatus of the laws as a purpose-built and routinely managed estate prison. Both ϕυλακή and carcer may have come into existence by employing a variety of spaces, as was customary in the late Roman household. Furthermore, where the confinement of coloni adscripticii was concerned, either for escape or for offences below the level of public crime, comparison with the treatment of slaves suggests that landowners may not have wanted to detain them for too long, for it would have impacted on their productivity and diminished the deterrent aspect of punishment. In fact, wherever we hear about punishment of coloni the suggested method, as with slaves, was flogging.154 At the same time, if we choose to read the deeds of surety as documents establishing bail, we may imagine that being confined had a 152 154

See above p. 153. 153 CJ 11.50.2.3–11.50.2.4 (396); see Sirks, A. J. B. (2008) 142. CTh 16.5.52.4 (412); CJ 7.24.1.1 (531–534) = CJ 11.48.24.1; NJust 22.17 (536).

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powerful coercive effect on a fugitive colonus, forcing him to find an affluent guarantor.

Monastic prisons From the fourth century on, the coenobitic monastery, a form of Christian asceticism that emphasised communal life, emerged alongside the worldly household as an institution that sought to administer punishment of its members.155 We are informed about late antique monastic penal systems in minute detail thanks to the Christian literary genre of monastic guidelines and reflections, also called rules (regulae), though not necessarily by their authors. Late antique rules developed as a consequence of the success of the coenobitic lifestyle and the great number of men and women attracted to it, which led to it it becoming the dominant monastic form in the west, and one of the most pronounced in the east.156 While embracing asceticism in itself was seen as an act of penance for general human sinfulness; leaders of monastic communities worried that life in common generated many further temptations for individuals and hence needed to be ordered.157 As normative sources, monastic rules of course do not give us any indication of how frequent or widespread certain punitive methods were, although they were certainly also institutionalising practices. They offer, however, a window into punitive ideals and concepts. As we shall see, imprisonment played a role in these concepts from early on, both in the east and in the west, but again, as in the lay household, this punitive use of space came in the form of segregation of culprits in multifunctional spaces, rather than as confinement to purpose-built prisons. Late Roman law, at least under Justinian, fully accepted that monastic communities were free to order their internal discipline as long as it did not concern offences that qualified as public crimes or were directed against third parties. Monastic leaders had the legal right to punish their subordinates. This, in turn, meant that monks and nuns, even though it was never clearly specified that they were under the potestas of their abbot or abbess, were unable to accuse the latter of maltreatment at a public court.158 155 156

157 158

On the development of coenobitic monasticism see Rousseau (2000) 745–780; Dunn (2003). On the development of monastic rules see Diem (2005) 175–228. Note that monastic writers, such as Basil, did not necessarily think about their writing as establishing firm ‘regulations’ of monastic life. On the development of monastic penal systems see Pancer (2003) 261–275. For the concept of Christian ascetic life as one of penance see below Chapter 8. Entry into a monastery terminated patria potestas, but monks and nuns kept a limited right to inherit. See Granić (1930) 672–673.

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Justinian here as elsewhere seems to have institutionalised social practice. Even in cases of very serious monastic leadership crises, such as the accusation against Shenoute, abbot of the Pachomian White Monastery in the Thebaid (d. 466), of killing a monk through excessive beating, we hear very little about appeals to outside authorities.159 At most, appeals that have been recorded were lodged with ecclesiastical authorities, a practice that Justinian, with a view to strengthening episcopal authority, turned into law.160 For example, Palladius of Helenopolis recorded in his Lausiac History, a description of monastic life in Egypt (written ca. 419–420), an incident in the Pachomian female monastery at Tabennesi, where a nun had been falsely accused of having indecently talked with a man. The nun committed suicide, and so did, shortly afterwards, her accuser. Apparently being unable to solve this crisis by themselves, the remaining nuns reported it to their priest, who excommunicated all of them for seven years for complicity in calumny.161 The nature of late antique monastic literature may of course have prevented the widespread transmission of stories that undermined the authority of monastic leaders. Yet, the modelling of the coenobitic community on the family and their spiritual leaders as ‘father’ or ‘mother’, well established by the early fifth century, the underlying ideal of complete withdrawal from the secular world and submission to God’s ultimate authority, as well as quite practical social dependency of monks and nuns on their monasteries, might also often have inhibited most from seeking outside external justice, particularly in rural areas.162 The law, however, specified that where ascetics had committed a wrongdoing against someone outside the monastery, in particular if it involved a public crime, they were to be brought before a public court. Justinian, similar to his specifications on clerical jurisdiction, envisaged collaboration between a public judge and the local bishop on such matters.163 It is likely, however, that, due to the increasing social importance of late antique monasteries for their local communities, such cases were in effect often handled internally as well. This is what a recurrent motif in late antique hagiography suggests: in a number of stories narrating the lives of ‘crossdressing’ saints, the heroine, having entered a monastery disguised as a man, was accused of having fathered a child by a woman living near the 159

160 161 162 163

For a full discussion of the various crises surrounding Shenoute’s leadership style, particularly in relationship to the women in his monastery, see Krawiec (2002) 31–50. NJust 67 (538). See Granić (1929) 24–25. Palladius, Historia Lausiaca 40 (PG 34:1105–1106). On the coenobitic community as a ‘family’ see Krawiec (2002) 133–144; Vuolanto (2008) 72–79. NJust 83.1; NJust 123.21.1; NJust 67. See above Chapter 3.

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monastery. Although this clearly could have been defined as stuprum, a public crime, she was invariably tried, with seeming consent of the victim and her family, by her abbot and (refusing to reveal her female identity) expelled from the monastery, but readmitted after a time of penance. One of these protagonists, Marina, was also subject to further penalties of cooking and cleaning upon return. The babies, in turn, were taken into the monastery.164 For the point of the stories, which was to praise the saint’s endurance as a victim of the same female sinfulness which she had sought to overcome through her embracement of male asceticism, the identity of the judge was not the most important matter, even though submission to the abbot’s verdict of course underlined the heroine’s acceptance of monastic authority and obedience and her own inherent sinfulness. The stories may therefore reflect that monasteries by this point had become accepted centres of justice in their localities, particularly, once again, where wrongdoing was of a sexual nature and victims keen on deflecting shame. Late antique monasteries hence were, and perhaps had to be to preserve their integrity, fairly enclosed punitive spaces. The stories of the ‘crossdressing’ saints also give a reasonable idea of monastic penalties, such as work assignment and expulsion. Both were also mentioned in late antique monastic rules. Many of these, particularly Western ones, suggested a graded penal system with a fixed penal catalogue becoming increasingly more severe upon repeat offending or failure to submit to the superior’s authority. Others, in particular the Short and Long Rules by Basil of Caesarea (clearly inspired by Platonic values), supported the idea of fitting penalties to the offence, and the disposition of the offender.165 Most monastic rules foresaw excommunication from the monastery as a whole only as a last resort, if the trespass was very grave.166 Their emphasis was on healing and education, as also suggested by the use of the term emendare in

164

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Life of Theodora of Alexandria (fifth to sixth century) (AASS Sept. 3:788–797; BHG 1727–1730); Life of Marina (fifth to seventh century) (AASS July 4:286–287; BHG 1163–1163e, BHL 5528–5530, BHO 690–697). See also Life of Susanna (fourth century) (AASS Sept. 6:151–160, BHG 1673–1673b). Susanna was tried by the local bishop (of Jerusalem), which may be explained by the early date of this narrative. On the motif of the cross-dressing saint see Patlagean (1981) 597–623; Hotchkiss (1996) 138–141. See Hillner (2009) 773–791. Basil, Short Rule 44 (PG 31:1112); Long Rule 28 (PG 31:988); Augustine, Praeceptum, 4.9 (ed. L. Verheijen (Paris: Études Augustiniennes, 1967) 427; note that Augustine’s authorship is uncertain); Rule of Macarius 17 (SC 297:380); Oriental Rule 35 (SC 298:490); Third Rule of the Fathers 2 (SC 298:534); Rule of Benedict 28 (SC 182:550–552). On expulsion in the Pachomian monasteries see Rousseau (1985) 96–97.

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the context of punishment in many Latin rules.167 The aim was to set an individual member of the community back on the path to salvation, but also, since this by necessity included reintegrating the culprit into a closelyknit group, to ensure that the community could do so without danger.168 It is therefore not surprising that late antique monastic rules also valued the visibility, humiliation and hence deterrent effect inherent in some penalties proposed, such as public rebuke or beating.169 The same principles also underlay to some extent the monastic penalties of confinement. Punitive uses of space involved, in the first place, exclusion from either table or oratory, or both. This was a form of excommunication, but did not automatically mean spatial segregation. For example, the Rule of the Master (written in mid sixth-century southern Italy) envisaged an unruly monk to eat separately from the others, but in the same room. He was, however, not allowed to participate in making the sign of the cross before the meal. Equally, a monk excluded from the oratory could be present during service, but was prohibited from participating in hymn-singing.170 Some rules, however, also prescribed complete isolation from the entire monastic group. In the Rule of Benedict (ca. 540) this was a more severe penalty than excommunication from table or oratory. Rather than just non-participation in communal activities it meant entire closure of common space to culprits.171 In other monastic writing, isolation was seen as the right measure for certain wrongdoing, such as, in Basil of Caesarea’s Short Rule, for being angry when awakened from sleep, or, for the fifth-century Western Rule of the Four Fathers, for idle talk or murmuring. In the latter case, silence that came with isolation may have been seen particularly fit for the misdeed.172 Unlike spatial segregation in the lay household such penalties were not represented as an alternative to beating. Both beating and confinement had their places in the penal catalogue. Some monastic rules saw beating as a more severe punitive method, for those who had revealed themselves as ignorant through their stubborness; others as a method fit for certain offences, such as those committed manually (e.g. theft), rather than verbally (e.g. murmuring).173 167

168 170 171

172 173

Pachomius, Praecepta atque iudicia 15 (Boon 69): monasterii regulis emendabitur; for more references see above Chapter 1. Lehmann (1951) 80–81; Pancer (2003) 273. 169 Cassidy-Welch (2001) 25–27. Rule of the Master 73.8–73.11; 73.17 (SC 106:308–310). Rule of Benedict 25.3 (SC 182:546). On the grading of these penalties see also Flint (2000) 151; Pancer (2003) 272–275. Basil, Short Rule 44 (PG 31:1109); Rule of the Four Fathers 15 (SC 297:202). Hillner (2009) 773–791.

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Spatial segregation was a measure that can be traced back to the origins of coenobitic monasticism. We already find it pronounced in the Latin version of the Pachomian Rules translated by Jerome in 404, who perused an organically grown array of Greek texts collected at a Pachomian monastery at Canopus near Alexandria (modern Abu Qir), called Metanoia.174 As other surviving fragments in Coptic, Greek and Ethiopian show, only Jerome’s translation contained a penal catalogue. Yet, contemporary or even slightly earlier biographical evidence on the fourth-century monastic leader often credited with the introduction of coenobitic monasticism into the Egyptian countryside, for example the Bohairic Life of Pachomius, suggests that, when his monastic communities had become more complex, Pachomius himself had introduced a more sophisticated internal penal system beyond mere expulsion.175 The Pachomian rules advised complete isolation of seven days of a monk in case of slandering, but only if admonishment did not work. The Paralipomena, a fifth-century Greek collection of Pachomian anecdotes, narrated how Pachomius ordered a monk who had been showing off through producing two mats while only one had been required, to be confined to his cell for five months, without being able to receive visitors.176 One of the purposes of spatial segregation as a punishment in the late antique monastery was, similar to segregation in the lay household, separation from the social life and the central spaces of the community, in order to shame and humiliate, or, as the fifth-century Western ascetic thinker John Cassian put it, ‘to disturb’.177 The Rules of Pachomius also expressed the hope that a monk may not return ‘until he was cleansed from filth’.178 This implies that segregation was to purify the community.179 The focus of spatial segregation was hence on exclusion, as we have also observed in the lay household.180 In contrast to the lay household, however, exclusion from daily monastic life also meant, like ecclesiastical excommunication, primarily exclusion from the routines and rituals understood to holistically support the path towards salvation, such as prayers, blessings and meals. The Rule of the Master, for example, strictly prohibited food brought to a confined monk to be blessed with the sign of the cross.181 174 175 176 177 178 179 181

On the history of the text see Veilleux (1981) 11. Bohairic Life 104 (CSCO 89:134; CSCO 107:88); Lehmann (1951) 38–43; Rousseau (1985) 87–104. Pachomius, Praecepta atque iudicia 1 (Boon 64); Paralipomena 15 (transl. Veilleux, vol. 2:37). John Cassian, Institutiones 10.16 (SC 109:410): publica omnium vestrum segregatione confusus. Pachomius, Praecepta atque iudicia 4 (Boon 65): donec mundetur a sordibus. 180 Pancer (2003) 272–275. Lehmann (1951) 83; Flint (2000) 151. Rule of the Master 13.41–13.48 (SC 106:40–42). For deprivation of blessings see also Basil, Short Rule 44 (PG 31:1109). See also Cassidy Welch (2001) 27.

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Often the place of segregation seems to have been a monk’s individual cell.182 Yet, just like in the lay household, at times places chosen were also meant to visibly highlight the humiliation of the offender. This was particularly the case with confinement in a monastery’s gate-house, or the ‘remote cell of the porter’ (cella salutatorii remota), mentioned as a punishment in Caesarius’ Rule for Nuns, and possibly also the Rules of Pachomius. In Shenoute’s White Monastery the gate-house was the place where the novices lived and where beating was administered, so being sent here emphasised the distance from the centre of the monastery and the shame of downgrading.183 The Rules of Pachomius also envisaged confinement in the infirmary, where an unruly monk was to be considered as one of the sick. What the Rules of Pachomius proposed, then, following the Christian definition of sin, was that offending was a form of disease. Yet, confinement of some offenders was not only for the security of the community, to prevent moral pollution, but also curative, so they ‘could return to the truth’ (donec redeat ad veritatem).184 Palladius’s Lausiac History mentioned incidents of Egyptian hermits who put fellow-hermits who had fallen into the trap of pride in chains to cure them with the antidote of physical humiliation.185 The Rules of Pachomius went a step further by ordering diseased offenders also to reside among the real diseased, but to their own benefit. In the same spirit, but with more vagueness, some later Western rules implied that a monastic leader would choose a room in relation to the disposition of an offender.186 In addition to this emphasis on reform and healing through the choice of particular spaces, monastic rules put an importance on the ordering of time that is quite unprecedented compared to the commentators on spatial segregation in the lay household. Monastic rules were frequently anxious that confined members of the community should not be idle, and in company of mentors. Caesarius of Arles suggested in both his Rule for Monks and in his Rule for Nuns that those excommunicated and isolated sit with a more senior brother or sister to read the Scriptures, as long as it took

182 183

184

185 186

See e.g. Oriental Rule 37 (SC 298:490). Caesarius, Rule for Nuns 65 (SC 345:252); Pachomius, Praecepta atque iudicia 4 (Boon 65) specifies isolation extra monasterium, which might indicate the gate-house; on the role of the gate-house in the White Monastery see Krawiec (2002) 43. Pachomius, Praecepta atque iudicia 5 and 12 (Boon 65–66, 68). On both gate-house and infirmary see Lehmann (1951) 63, 68–69; Cassidy-Welch (2001) 25–27. On the institution of infirmaries in Pachomian monasteries see Crislip (2005) 9–12. Palladius, Historia Lausiaca 31 and 32 (PG 34:1089–1092). Caesarius, Rule for Nuns 34.1 (SC 345:214); Ferreolus, Regula ad monachos 39 (PL 66:975).

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to be recalled to reconciliation.187 The sixth-century Italian rules assigned work.188 The anecdote included in the Paralipomena about the brother who had produced two mats instead of one reported that Pachomius ordered him to produce two mats daily while in confinement.189 Work assignments resemble the punishment of slaves, especially if they were connected to downgrading. The focus, however, was not only on bodily submission through work, but on a learning process, although the two were not mutually exclusive. The monk ordered by Pachomius to weave two mats would be reminded, on a daily basis, of his boasting. The monk or nun ordered to sit with a senior would be faced with an example of virtue. Both work and reading would also allow a confined member of the community to still participate in monastic occupations, and their orientation of both body and mind towards the journey to God. In fact, it was a harsher punishment to be condemned to idleness, without the opportunity of ascetic endeavour, while in confinement.190 The focus of the rules was hence not just on safeguarding the community or the ritual outcasting of offenders, but also on their spiritual development, with particularly the sixth-century Latin rules calling the period of isolation a period of penance (paenitentia).191 As with the lay household, there is, however, no indication that late antique monasteries had formal prison space.192 In many ways, the flexible use of different spaces in the monastery for confinement sufficiently fulfilled the functions late antique monastic rules associated with spatial segregation. It is only from the early seventh century on that we encounter the term carcer or ϕυλακή in monastic writing to describe a particular space in the monastery.193 The carcer was meant to address the sin of pride in the Communal Rule, usually thought to have been composed by the Irish missionary Columbanus for his triple monastery Annegray, Luxueil and Fontaines around 590, but perhaps only written after his death in 615 by his successors who needed a written record of his administration of discipline.194 In the early seventh-century east, John Climacus, a monk at the 187 188 189 190

191

192 194

Caesarius, Rule for Monks 23 (SC 398:222); Rule for Nuns 34.1 (SC 345:214). Rule of the Master 13.44–13.48 (SC 106:42); Rule of Benedict 25 (SC 182:546). Paralipomena 15 (transl. Veilleux, vol. 2:37). Idleness was prescribed for confinement in the infirmary in Pachomius, Praecepta atque iudicia 5 (Boon 65–66) with a clear intention to make this state undesirable for those who suffered it, see Crislip (2005) 82. Caesarius, Rule for Nuns 34.1 (SC 345:214); Rule of the Master 13.54–13.57 (SC 106:44); Rule of Benedict 25 (SC 182:546). Lehmann (1951) 83. 193 Ohm (1982) 145–155. Columbanus, Communal Rule 15 (ed. G. S. M. Walker (Dublin: Dublin Institute for Advanced Studies, 1957), 168). On the history of the text see Walker at xlix–lii who argues that only chapters 1–9 of the first recension can be securely attributed to Columbanus.

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St Catherine monastery at Sinai (and possibly correspondent of Gregory the Great), described a monastic prison (ϕυλακή) in his didactic treatise Ladder of Divine Ascent. John had once visited a renowned abbot of a monastery on the outskirts of Alexandria, who exhorted his disciples to love each other and, where someone showed hatred, ‘banished him like a convict to a separate monastery’ about a mile from the main monastery. Here, in a dark and filthy place, the monks were to go without cooked food, dwell in separate cells, engage in uninterrupted prayer, all the while weaving baskets, for as long as the abbot thought appropriate.195 While it is not entirely clear what was meant by the term carcer in Columbanus’ Rule, John Climacus’s description unmistakingly shows a purpose-built facility. In the West, it is from the time of the Carolingians onwards that we find routine recommendations for a prison-building in monasteries.196 At that point, confinement in the monastic prison seems to have come to replace expulsion as the most severe penalty. The rise of prison-buildings may therefore be connected to the development of irreversible monastic vows in the early medieval period, which meant that expulsion was not an option anymore and all sins had to be expiated internally.197 It should be noted, however, that at least in sixth-century Italy unruly monks and nuns, and particularly those who tried to leave the monastic life, were also transferred to different and ‘stricter’ monastic communities, in order to circumvent the problems that arose with the appearance of monastic vows.198 Overall, late antique norms, and perhaps practices, of monastic punishment had a strong spatial aspect. Those who endangered their own path to salvation and the community’s spiritual life were to be distanced to a remote place in the monastery, in a sort of ‘internal’ exile, or to a secondary monastic community. There was a very conscious development of this form of excommunication towards confinement. This was perhaps modelled on the domestic methods of punishment described earlier in this chapter, but had a more pronounced emphasis on ordering space and time of confinement to facilitate self-reflection. The penalty of monastic confinement, however, was not called imprisonment during late antiquity, and neither was the space of confinement called ‘prison’. Perhaps monastic 195

196

197 198

John Climacus, Ladder of Divine Ascent, step 4 (PG 88:685): ἐν τῶ̣ ἀϕοριστικῶ̣ μοναστηρίω̣ ὡϛ κατάκριτον ἐξώριζεν; for the term ϕυλακή see step 5 (PG 88:764–775) and below Chapter 8; on John himself see Chitty (1966) 173–174. Synods of Murbach (816) ch. 18 and Aachen (817) ch. 31 (ed. B. Albers, Consuetudines Monasticae, vol. 3 (Stuttgart 1907), 88 and 127). See Cassidy Welch (2001) 39–40. Diem (2002) 63–78. Pelagius, ep. 63 (Gassò and Batlle:164–166); Gregory, ep. 4.6; ep. 4.9; epp. 8.8 and 9 (CC 140/140A:223, 226, 525–526).

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writers of this period did not make the connection with the public prison, or, as for free members of the lay household, it was deemed too controversial due to the prison’s image of abuse. The fact that we see monastic writers both in the east and in the west, quite independently from each other, embracing the concept from the early seventh century on, shows, however, that suffering in the prison, and its coercive and punitive aspects, also struck a chord with the monastic imagination. As we shall see in Chapter 8, this built on roots reaching back into late antique concepts of asceticism. For now, however, let us return to the public sphere.

chapter 7

Exile and confinement

While a custodial form of banishment, forced labour, began to be imposed on lower-rank criminals in the early empire, it is rarely attested for elite legal exiles in the first three centuries ad. As recent research into early imperial practices of banishment has shown, even island banishment, which scholars have traditionally connected with a concept of custody in the early empire, in reality did not aim at the prevention of escape, neutralisation or, as forced labour did, the physical humiliation of a convict’s body. Islands were not chosen because they were considered secure, for island banishment quite naturally allowed access to water and ships, and exiles’ movements were only nominally guarded by an island’s inhabitants, if at all. The main purpose of early imperial island exile was to impose a sense of alienation on a convict, through emphasising the distance to Rome, the loss of urban culture and the quality of life a member of the Roman elite was usually accustomed to. Specific islands were chosen to express, in a retributive sense, different degrees of severity of this penalty.1 By contrast, from the fourth century on, many exiles were submitted to conditions that can be described as confinement and at times were called ‘imprisonment’ by those who suffered them, as we shall see in more detail in the next chapter.2 In this chapter I will argue that the phenomenon was a result of a peculiar late antique mindset about the function of exile, which foregrounded social hygiene and religious coercion, but somewhat paradoxically neglected resulting security issues. This led to frequent 1

2

See Stini (2011) 171–188, also for the rarity of an exile’s additional confinement at the place of banishment. An exception was made for members of the Julio-Claudian imperial family, whose mystique allure in the provinces was considered as endangering the rule of the emperor; see further Drogula (2011) 230–266; both Stini and Drogula argue against Mommsen (1899) 973, who considered the desire for security the most pressing motivation behind island exile. On nominal surveillance of exiles by provincials see Braginton (1943–1944) 81–83; Bingham (2003) 379. For a list of these cases see Appendix II.

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subsequent attempts by public officials or local communities to restore order through confining seditious exiles in contexts that can be described as exponents of the coercive uses of public or private imprisonment described in the previous chapters.3 At the same time, such experiences on the ground raised awareness at the imperial level that some exiles must be controlled more tightly or compelled to change conduct, resulting in experiments of fortress banishment and, in the case of lay exiles, forced clerical ordination. The beginnings of such measures were pragmatic and driven by external circumstances, such as individual judges’ access to military spaces and the development of church asylum. A systematic acceptance was also hindered by the fact that particularly attempts to spatially confine high-ranking exiles were controversial, as they imposed forms of bodily submission and compulsion customarily reserved for lower-rank criminals.

Forms of late roman exile Unlike punitive imprisonment, exile was a well documented penalty in Roman imperial law. It had developed from the republican custom of imposing aquae et ignis interdictio, and hence exclusion from the community’s sources of life, on those who had voluntarily withdrawn from Rome to avoid trial and a capital penalty.4 Early imperial jurists distinguished between two forms of penal exile, relegatio and deportatio. This distinction was still largely maintained in the later Roman empire, despite a less rigorous terminology in later Roman law.5 The difference between the two forms concerned predominantly the question of what was to happen with an exile’s property and civic rights.6 Under the penalty of relegatio, some property could be confiscated if stipulated in the sentence, but the relegated maintained ownership of the remaining property and also citizenship. Relegatio could be temporary or life-long. Deportatio was always life-long, and led to loss of property and civic rights, such as the inability to make a will. The difference, in short, was between a non-capital and a capital penalty. In the late Roman empire, property of a deportee was sometimes meant to revert to the convict’s town council, rather than the imperial fisc, a reflection of emperors’ views on the social importance of 3 4

5 6

This chapter and Chapter 8 draw partly on Hillner (2013a) 385–433. On exile under the republic see Kelly, G. P. (2006), on the emergence of exile as a legal penalty in particular 39–45. See also Grasmück (1978) 104–108, who dates the innovation to the time of Sulla. See Justinian, Institutes 1.12.1–1.12.2 (CIC i:5). Mommsen (1899) 967; Garnsey (1970) 111–122; Rocovich (2004) 43–46; Stini (2011) 47–48.

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curiae.7 ‘Loss of property’ was however only absolute where a deportee did not have any children or grandchildren through his sons, or where he was convicted of treason (maiestas). If a deportee did have children, only some of the property was to be confiscated, the rest would go to his descendants or parents, if he had any, in varying proportions. Except in the case of criminals that posed a direct threat to the state, Roman law therefore protected the continuity of families.8 A law of 380 also granted a sixth of the property to the deportee for support of his ‘afflicted life’ (vitae adflictae). Provision for this stipend may go back to Augustus’s introduction of a viaticum for exiles, a small allowance for the sake of their sustenance. As we shall see further below, individual emperors also provided for the sustenance of some exiles on an ad-hoc basis, as an expression of clemency rather than legal right.9 As we have seen in Chapter 4, late Roman law sought to return to a more robust system of statutory penalties. In the late Roman empire, exile was prescribed as a legal penalty for a wide range of crimes, including crimes affecting the family and sexual mores (e.g. divorce, dissolution of betrothal, abduction, falsification of wills, unlawful marriage, castration), crimes affecting judicial procedure (e.g. the lobbying of a judge to retract a rightful sentence), corruption by imperial officials (e.g. the embezzlement of public funds or allowing decurions to join imperial service), the use of magicians and hiding of deserters. Most of the crimes that carried a sentence of exile implied that those who committed them were of a propertied status or in imperial service and can therefore be described as elite offences, which demonstrates that the penalty of exile was preferentially imposed upon upper-rank criminals.10 So far, late Roman laws therefore followed customary sentencing practices. However, in line with the focus on imperial care for law and order, late Roman emperors by far preferred the more severe deportatio to relegatio, which, in the laws, was a sentence reserved for such peculiar crimes as selling post-warrants, or shepherds employing horses, which was seen as fostering brigandage.11 Furthermore, from the fourth century on a variety of crimes which had hitherto been traditionally punished with exile now 7

8 9

10 11

CTh 12.1.6 (319) = CJ 5.5.3 (the property of a decurion exiled for unlawful marriage to revert to his city); CJ 9.49.10 (426) (property of childless decurion to go to city council). On late Roman laws on the property rights of a deportee’s relatives see Delmaire (2008) 122. CTh 9.42.8.2 (380). On the viaticum Rivière (2008) 302. On emperors’ provision for exiles see below pp. 230–231. See Vallejo Girvés (1991) 153–167 also for the categories of crimes discussed above. Deportatio, or perpetual exile with loss of property, prescribed in: CTh 2.1.6 (385); CTh 2.1.9 (397); CTh 3.16.1–3.16.2 (331); CTh 4.22.2 (326); CTh 6.30.16–6.30.17 (399); CTh 7.12.1 (323); CTh 9.8.1

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came to carry the death penalty. For example, Constantine reminded judges that manifest violence (vis) was to carry a sentence of supplicium capitale rather than deportatio or relegatio.12 Yet, the impact that such imperial laws had on actual sentencing practice is difficult to reconstruct. For example, the death penalty for adultery, probably introduced under Constans to replace the penalty of relegatio of the Lex Iulia de adulteriis of 18 bc, was not universally applied in late antique courts.13 The replacement of exile with the death penalty was never set in stone in the late Roman period, particularly for members of the elite. During the early empire, exile did not only develop into a formal penalty, but also the practice emerged of sending some exiles to a designated place, often an island, rather than just expelling them from Rome or Italy. It has been argued that exile with forced residence, which we see happening at first with an emperor’s relatives, arose from the domestic tradition of sending unruly children to country estates, described in Chapter 6. It was perhaps a logical conclusion of the transition to empire with its focus on the emperor’s fatherly authority beyond the scope of his actual family.14 In subsequent centuries, forced residence could be part of a sentence of relegatio, but was automatic in the case of deportatio.15 The second and third-century jurists frequently described places of forced residence also as an island (in insulam), although they acknowledged that, for practical reasons, governors, who were only allowed to banish within their potentially island-less province, would also exile to other

12

13

14

15

(326); CTh 9.16.1 (320); CTh 9.19.2.2 (320); CTh 9.21.1 (323/5); CTh 9.21.2.4 (321); CTh 9.23.1.1 (356); CTh 9.24.1; CTh 9.25.3 (420); CTh 9.26.1; CTh 9.26.2; CTh 9.32.1 (409); CTh 9.39.1 (385); CTh 9.40.20 (408); CTh 9.42.20 (408); CTh 10.11.1 (317) = CJ 10.13.1; CTh 12.1.6 (319) = CJ 5.5.3; CTh 10.24.2 (381) = CJ 10.6.2; CTh 14.15.6 (364); CTh 16.4.3 (392); CTh 16.5.34 (398); CTh 16.5.36 (399); CTh 16.5.53 (398); CTh 16.5.52 (412); CTh 16.5.54 (414); CTh 16.5.58 (415); CTh 16.5.65 (428); CTh 16.6.6 (413); CTh 16.8.26 (423); CTh 16.10.23 (423); CTh 16.10.24 (423); CJ 9.12.7 (319); CJ 1.2.5 (412); CJ 8.12.1 (485–486?); NJust 6.1.9 (535); NJust 8.8.1 (535); NJust 12.1 (535); NJust 142.1 (558); NJust 146.ep. (553); relegatio prescribed in CTh 1.5.3 (331); CTh 3.5.5 (332); CTh 7.18.8 (383/392); CTh 8.4.5 (326?); CTh 9.17.1 (340); CTh 9.30.5 (399); CTh 9.36.2 (409). CTh 9.10.1 (317?) = CJ 9.12.1. Other crimes now to be punished with death included kidnapping, the consultation of magicians, forgery, counterfeiting money or adultery: CTh 9.18.1 (315); CTh 9.16.4 (357); CTh 9.19.2.2 (320): capitali supplicio ‘if the magnitude of which has been committed so demands’, otherwise deportatio; CTh 9.22.1 (317/343); CTh 11.36.4 (339). Constans’ law is CTh 11.36.4 (339). Already Constantine may have changed relegatio to deportatio see CTh 11.36.1 (313/315); and see CTh 9.40.1 (314/315) = CJ 9.47.16. For the penalties of the Lex Iulia and the variation in sentencing practice over the late antique period see Evans Grubbs (1995) 204 and Arjava (1996) 195–198. For these developments and emperors’ motivations see Mommsen (1899) 967–976; Bingham (2003) 376–400; Rocovich (2004) 41–42; Cohen (2008) 206–217; Rivière (2008) 261–310; Drogula (2011) 230–266. Herennius Modestinus, Regularum et differentiarum fragmenta 2 (E. Seckel, B. Kübler (eds.), Iurisprudentiae anteiustinanae reliquia, vol. 2.1 (Leipzig, 1911), 169–70); D 48.22.6 (Ulpian).

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places, such as, in Egypt, to oases.16 Nonetheless, islands were the most frequent places of exile in the early empire, which, as we shall see below, would no longer be the case in late antiquity.17 A significant development regarding exile in late antiquity was its evolution into the penalty for Christians who deviated from the definition of faith that was officially acknowledged as rightful. It was Constantine who set a precedent in this regard. In both the Donatist and the Trinitarian controversies, the emperor endorsed the decision of a church council as the orthodox position (Arles in 314 and Nicaea in 325, respectively) and imposed a public penalty, exile, on those who did not subscribe to it. From then on, emperors regularly followed up church councils’ depositions of bishops, or other high-ranking clerics deemed heretical, with a public penalty of exile.18 While in the early fourth century such incidents of exile had been sporadic and originated from the coercive power of emperors to maintain law and order, from 380 on, the year in which Theodosius I legally proclaimed adherence to the Nicene creed and communion with those bishops who confessed it as the general benchmark of orthodoxy, a series of laws were promulgated which ordered exile, alongside infamy, for all non-conforming Christians.19 Usually, this was meant to be relegatio for followers of heretical sects (in the form of expulsion from a city) and deportatio, to a specific place, for their leaders.20 Theodosius’s measure was entirely novel in Roman law, which hitherto had not considered religious dissidence a public crime, unless it led to public disturbance or offences which could be prosecuted under existing criminal law, such as magic or treason. To be sure, even the late antique heresy laws rarely had a general vision of heresy, but usually targeted single named ‘brands’, such as 16

17 18

19

20

For the phrase in insulam D 48.22.5 (Marcian); Pauli Sententiae 5.21.1 (FIRA ii:406). For the restrictions on the provincial governor to banish to places within his province see D 48.22.7 (Ulpian) and CTh 9.40.12 (378); Delmaire (2008) 119. On exile to oases see D 48.22.7.5 (Ulpian); CTh 9.32.1 (409) = CJ 9.38.1; Schwartz (1966) 1481–1488; Vallejo Girvés (2002) 691–698. See the lists in Rocovich (2004) 224–226 and Stini (2011) 297–299. On Constantine in particular see Girardet (1975); on the general development see Vallejo Girvés (1991) 157–158, Escribano Paño (2004) 255–257, Escribano (2006) 232–34 and Fournier (2006) 157–166. To be sure, some leading clerics of the fourth and fifth centuries were also exiled for public crimes, such as Calandion of Antioch for treason in 484, although this led to vigorous debates among church leaders whether an emperor had the power to do so without ratification by a synod, see Blaudeau (2008) 286. Theodosius’ laws: CTh 16.1.2 (380); CTh 16.1.3 (381); CTh 16.5.6 (381). On infamy as a penalty for heretics see Bond (2014) 10–16. For the distinction see e.g. CTh 16.5.14 (388). Priests are also singled out in CTh 16.5.13 (384); CTh 16.5.30 (396/402); CTh 16.5.31 (396); CTh 16.5.32 (396); CTh 16.5.34 (398); CJ 1.7.6 (455). For deportatio of heretical clerics see CTh 16.5.36 (399) (Eunomians); CTh 16.5.53 (398) (Jovinianists); CTh 16.5.52.5 (412) (Donatists); CTh 16.5.54 (414) (Donatists).

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Manichaeans, Donatists, Arians or Eunomians, and considered as evidence for the adherence to heresy certain forms of conduct, such as congregation, possession of controversial books or performance of divine service. Yet, under these statutes anyone could now come forward to charge a person with such crimes and both emperors and their officials in the provinces with judicial competences could and would hold trials of those considered heretics ex officio.21 Those judges routinely included the Praetorian Prefects, their vicarii, and, above all, the provincial governors, who were endowed with regular judicial competences. Regular judges, however, could only pronounce a sentence of relegatio, but had to obtain confirmation from the emperor for the execution of a sentence to deportatio.22 At times, we come across a sentence of a ‘heretic’s’ banishment issued by more unusual officials, often of a military background, who the emperor had entrusted with a specific task to restore law and order. For example, in 356 Constantius sent out the dux Aegypti Sebastian, the military commander of all Egypt and Libya, to ensure the instalment of George of Cappadocia as bishop of Alexandria and to expel the Nicene bishop Athanasius’ supporters from the city.23 A similar scenario unfolded in 373, when Valens dispatched the comes sacrarum largitionum Vindaonius Magnus to establish Lucius the ‘Arian’ at the expense of Peter of Alexandria. Together with the praefectus Aegypti Aelius Palladius, Magnus was responsible for a series of banishment of Peter’s fellow bishops, clerics and followers.24 The banishment of the Chalcedonian bishop Elias of Jerusalem in 516 came at the hands of the dux Palaestinae, Olympus, whom Anastasius had sent to force Elias to enter into communion with the troublesome Miaphysite leader Severus of Antioch.25 A special form of exile: forced labour Although our evidence is most conclusive for members of the elite, lowerrank offenders were not by default excluded from the penalty of exile. 21

22

23 24

25

On congregation: CTh 16.5.3 (372), 16.5.15 (388), 16.5.53 (412), 16.5.54 (414); on books: CTh 16.5.34.1 (398), 16.5.66 (435); on services: CTh 16.5.3 (372). See generally on this development Barnard (1995) 125–128. Washburn (2007) 62–75. On the judge’s competences regarding relegatio and deportatio see D 48.1.2 (Paulus); D 48.22.6 (Ulpian); D 48.22.18.1 (Pomponius). PLRE I Sebastianus 2, 812. PLRE I Vindaonius Magnus 12, 536; Aelius Palladius 15, 661. On the offices of dux Aegypti and praefectus Aegypti see Palme (2007) 247. PLRE iii.2 Olympus, 804.

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Expulsion from a particular place within a city, from a city itself or from a province was a customary way to deal with such individuals. This was particularly the case for those seen as endangering the peace of the community, such as disruptive youths, astrologers, magicians or philosophers.26 In the late Roman empire, as we have seen, followers of heretical sects came to be included in this group and Justinian extended the measure to pimps, to be expelled from Constantinople, after corporal punishment, and to actors who donned the costumes of ascetics.27 Where a lower-rank person was banished to a specific place, however, rather than just being expelled from a place, this was usually to forced labour. From the early third century on, we encounter forced labour in two forms, metallum and opus publicum. In practice, and to some extent also in legal definitions, sentences to metallum and to opus publicum of lower-rank individuals were seen as equivalent penalties to banishment to a specific place of members of the elite in late antiquity.28 For example, in the case of an attempt to avoid a judge’s sentence Constantine ordered that an offender who was of propertied status (patrimonio circumfluit) was to be relegated to an island for two years, while, if he was a peasant (agrestis vitae sit), he was to be sent to the mines for the same period. In the case of a slave woman who married a town councillor, Constantine likewise specified that the woman was to be sent to the mines, while the man was to be deported to an island.29 For some crimes, which were a priori associated with those of lower-rank, forced labour was the first penalty of choice, as for slaves who tried to escape from Roman territory, and perhaps for parents who prostituted their children.30 Under the tetrarchy such provisions may have been extended also to individuals of higher rank. Diocletian’s edict on Manichees of 302 ordered followers of this religion to be all condemned to the mines regardless of their rank. Furthermore, Galerius may have sent Christian aristocratic women to forced labour. Such provisions were

26

27 28

29

30

MacMullen (1966) 133; Garnsey (1970) 119; Rocovich (2004) 97–110; Robinson (2007) 81–82; Stini (2011) 87–111. NJust 14.1 (535); NJust 123.44 (542). For Isidore, etym. 5.27.31 (ed. J. Oros Reta, vol. 1 (2nd edn. Madrid: Editorial Católica, 1993) 534), metallum was naturally a form of exile: metallum est ubi exules deportantur ad eruendam venam marmoraque secanda in crustis. CTh 1.5.3 (331); CTh 12.1.6 (319) = CJ 5.5.3: Justinian transformed these penalties into deportatio for those with imperial office vs. flogging for those of inferior rank: NJust 12.1 (535). See also CTh 9.17.1 (340): relegatio/metallum for the desecration of tombs; CTh 16.5.64 (428): freeborn estate stewards to be exiled, and slaves sent to the mines, for allowing assembly of Manichaeans; Sirm. 14 (409): metallum/deportatio for Donatists of lower rank and of dignitas. CJ 6.1.3 (317–323); CTh 15.8.2 (428).

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however not repeated by later emperors and Diocletian’s law was also not included in the Code of Justinian.31 A sentence in metallum, labour in imperial mines or quarries, was, unless the convict was released by imperial amnesty, usually lifelong and reduced the offender to slavery, made visible through the wearing of chains and tattooing. He became a slave to his form of punishment, a servus poenae, which overrode any potential conditions of ownership in case he had been a slave also previously.32 A variation of sending convicts to mines or quarries may have been putting them to work in imperial factories such as those producing textiles for the army (gynaecea). Again, they seem to have been enslaved in the process. Such penalties are, however, only known from the context of early fourth-century Christian persecution.33 Some late antique legal developments regarding condemnation to the mines may have been down to Christian influence. Constantine replaced tattooing the forehead with tattooing the hands or calves and Justinian abolished the servitus poenae, predominantly to allow for continuity of the convict’s marriage, but also perhaps to facilitate imperial pardon.34 In 325, Constantine also ordered that condemnation to the beasts (in ludum) should from now on be substituted to one in metallum, as such preferring a penalty that was non-lethal and less spectacular, but perhaps not less brutal.35 In fact, throughout late antiquity condemnation to the mines continued to be regarded as one of the most demeaning penalties. If we are to believe Augustine it was also very frequently meted out, even for minor offences.36 Those condemned to opus publicum did not lose their liberty and lost their citizenship only if the sentence was lifelong. Laws rarely specified what opus publicum consisted of, but we know from anecdotal evidence that convicts were assigned to cities, normally their own cities, where they were to work for the provision of public amenities, such as road-building or 31

32

33

34 36

Coll. 15.3.7 (302) (FIRA ii:581); Lactantius, mort. pers. 21.4 (ed. J. L. Creed (Oxford: Clarendon Press, 1984), 32); see Neri (1998) 480. Garnsey (1970) 131–136; Gustafson (1994) 422; Neri (1998) 474–476. Jurists made a subtle additional distinction between a sentence in metallum and one in opus metalli. The latter may have been temporary, led to just the loss of citizenship, but not liberty, and involved the wearing of lighter chains (see D 48.19.8.6 (Ulpian); D 50.13.5.3 (Callistratus)). On the tattooing of those condemned to metalla see Gustafson (1997) 79–105. Lactantius, mort. pers. 21.4 (ed. J. L. Creed (Oxford: Clarendon Press, 1984), 32); Eusebius of Caesarea, Life of Constantine 2.34 (SC 559:306): Licinius condemned Christians to work in gynaecea or linyphia as slaves of the fisc; see Millar (1984) 144. CTh 9.40.2 (316); NJust 22.8 (536). 35 CTh 15.12.1 (325). Augustine, contra Iul. op. imp. 6.27 (PL 45:1571); en. psalm. 34.2.13 (CC 38:320); contra ep. Parm. 1.8.13 (PL 43:43); see Neri (1998) 479.

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sewer-cleaning.37 Some time before 393, the Donatist bishop of Carthage, Primianus, had one of his priests condemned to clean the city’s sewers. The transgression was an ecclesiastical affair – the priest had performed illicit baptisms – but the episode suggests collaboration between the bishop and civic magistrates to institute a penalty that mirrored opus publicum.38 We mostly hear about concrete cases of condemnation to metallum in late antiquity from the context of Christian conflict. These show that, by and large, late antique magistrates, including the emperor, followed the customary distinctions of rank when applying this penalty to clerics. Most incidents involved monks and clergy below the status of bishops, who from the fourth century on came to be counted among the social elite. For example, during the persecution of Nicene Christians in 356 by the dux Aegypti Sebastian a subdeacon of the church in Alexandria was sent to the copper mines of Phaino in Palestine, one of the biggest mining centres in the Roman East, although he died on the way.39 As Theodoret of Cyrus reported, some of the Nicene Christians of Alexandria at the time of Valens, among them a Roman sub-deacon, ambassador of Damasus of Rome, were also unlucky enough to be sent to ‘Phennesus’ by the praefectus Aegypti Palladius and the comes sacrarum largitionum Magnus. The curious name Theodoret used for the copper mines at Phaino in this instance were a malapropism of ‘Proconnesus’, the famous marble quarries on the island of the Sea of Marmara, where Palladius and Magnus allegedly sent other Nicene clergy.40 In 403 we hear of Egyptian monks from Nitria, who got caught up in John Chrysostom’s downfall as bishop of Constantinople, being sent to the island of Proconnesus.41 This island, as well as mines called Gypsus, probably the imperial alabaster quarries in the Nile Valley near Alabastrine (modern Qum el-Akhmar), were also the places of banishment for the monks and lower clerics who had accompanied Vigilius of Rome to Constantinople in 546. Like him, they had refused to subscribe to the emperor’s edict of condemnation of the so-called Three Chapters in 544, an attempt to reconciliate opponents of the Council of Chalcedon of 451 by retrospectively anathematising a number of writings endorsed by the Council. At the same time Vigilius’ 37 38 39

40

41

Millar (1984) 135, 143–144; Neri (1998) 492–496; Huntzinger (2005) 22–32. Augustine, en. psalm. 36.2.20 (CC 38:361–366); see Shaw (2011) 115–117. Athanasius, Arian History 60 (PG 25:765). Phaino is today’s Wadi Faynan in Jordan, half-way between Petra and the Red Sea. See Millar (1984) 140–141; and now in particular Mattingly (2011) 174–199. On Sebastian see PLRE I, Sebastianus 2, 812. Theodoret, Ecclesiastical History 4.26 (GCS 44:258). On Proconnesus see Millar (1984) 141 and Gustafson (1994) 429. On Palladius and Magnus see PLRE I, Palladius 15, 661 and Magnus 12, 536. Palladius, Life of John 8.35 (SC 341:158).

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higher clerics, such as the deacon Pelagius, were interned in monasteries in Constantinople.42 The reliability of these accounts is confirmed by the mention of condemnation to hard labour at Proconnesus and Gypsus as legal penalties in Justinian’s laws.43 At this point, therefore, the mines do not seem to have been considered an appropriate place of punishment even for deacons anymore, which reflects the office’s increase in social reputation since the fourth century. On the rare occasions that a bishop was sent in metallum, it caused considerable outrage. According to Athanasius of Alexandria, in 356 the dux Aegypti Sebastian sent a number of Egyptian bishops to ‘stone-quarries’ in Egypt. The quarries Athanasius referred to were probably the famous porphyry quarries on the Red Sea in Upper Egypt, called Mons Porphyrites.44 It may have been this incident that Hilary of Poitiers alluded to in his famous invective against Constantius, when he reproached the emperor that, on his orders, bishops had been tattooed on their foreheads with the label ‘condemned to the mines’. Hilary picked up on this incident, because he sought to defame Constantius’ abusive handling of the law, even though it had been the dux Aegypti on whose watch the sentences had been pronounced. He emphasised the condemnation of bishops to metallum for its potential to expose Constantius’ scandalous behaviour, also reflected in his disregard for his father’s ban on tattooing convicts’ faces.45 Overall, however, evidence on the condemnation of bishops to metallum is rare for late antiquity, certainly much rarer than during the times of persecution, when many bishops in the eyes of Roman authorities would have numbered among humiliores.46 The only other case known, beyond those unspecific ones from the time of Constantius, is that of Alexander of Hierapolis in Syria, a supporter of Nestorius, whom Theodosius II banished ‘to the mines at Famuthin’ (exiliatus est in Famothin Aegypti metallum) after the Council of Ephesus, perhaps the

42

43 44

45

46

LP i:302; Pelagius, ep. 80.2 (Gassò and Batlle:197); Pelagius, In defensione trium capitulorum 4 and 6 (Studi e Testi 57:32, 67, 68). On the Egyptian alabaster quarries see Hirt (2010) 222. On the ThreeChapter controversy see Gray (2005) 227–236. NJust 22.8 (536). Athanasius, Arian History 72 (PG 25:780); Gustafson (1994) 425, 428; on Mons Porphyrites see also Hirt (2010) 222; Mattingly (2011) 186. Hilary of Poitiers, Contra Constantium 11 (SC 334:188): in ecclesiasticis frontibus scriptos metallicae damnationis titulo recenseri; see Gustafson (1997) 82. Note, however, that the invective’s date is uncertain and it may be as early as 355, or as late as 361; on its dating see Barnes (1993) 150. On the text see Flower (2013) Chapter 2. For bishops condemned to the mines in the centuries before Constantine see Davies (1958) 99–107. For their possible status as humiliores see Robinson (2007) 108.

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limestone quarries on Lake Mareotis just outside Alexandria.47 Alexander was, however, not stripped of his property or citizenship and organised his own travel to Egypt, so it is doubtful whether he had been sentenced to actual labour, rather than just residence at the mines or another place in that region, a distinction to which we will return below.48 In the case of forced labour, we also witness an intriguing collaboration between the state and commercial organisations in late antiquity. For the fourth-century, laws mention the assignment of convicts of minor offences (leviora crimina) to flour mills and bakeries in Rome and Constantinople.49 Female convicts seem to have sometimes been sent to work as prostitutes in brothels. Late antique hagiographies, both in the East and in the West, famously elaborate on such incidents. For example, in the story of Theodora, set in Alexandria during the persecution under Diocletian, the prefect of Alexandria condemned the saint, a noble Christian virgin, to a brothel for refusing to marry.50 In Rome, from the fourth century on, a similar story circulated about the martyr Agnes, a noble girl who had refused to marry the Urban Prefect’s son and to sacrifice to Vesta, when ordered to do so to prove her credentials of Roman domesticity.51 While the contrast of the saint with the prostitute served to emphasise the former’s purity and God’s power to transform a place of debauchery and moral filth into a place of Christian virtue, the stories have some grounding in reality. Enforced prostitution of women was first mentioned by the Christian writer Tertullian in 197, again in a persecution context, and it continued into the fourth century.52 The mid-fifth-century church historian Sokrates reported that Theodosius I, when he came to Rome in 391 abolished the practice of placing adulteresses into brothels.53 In the early empire, adulteresses seem at times to have been forced to wear the prostitute’s formal dress, the toga, in public.54 Thomas McGinn 47

48 49

50

51 52 53 54

On these see Haas (2001). Ptolemy, Geographia 4.5 (ed. and transl. E. L. Stevenson (New York: Dover, 1932), 102) placed Famothin (or Phamotis) in the Mareotis region. ACO 1.4:203. CTh 9.40.3 (319); 9.40.5 (364); 9.40.6 (364); 9.40.7 (364); 9.40.9 (370) = CJ 9.47.9; CTh 14.3.22 (417) = CJ 12.53.2; CTh 14.4.9 (417); 14.17.6 (370). On the penalty see Sirks, B. (1991) 357, 359, 414. Life of Theodora and Didymus (fourth century; AASS Apr. 3:578–581; BHG 1742, BHL 8072–8073); see also Life of Antonina and Alexander (AASS May 1:383–386; BHG 50–50e), although here it is not entirely clear whether the heroine, Antonina, was condemned to serve in the brothel or was ‘just’ exposed to rape by soldiers in the public prison. On both see Hotchkiss (1996) 132, 140. Life of Agnes (AASS, Jan. 2:350–354; BHL 156). Tertullian, apol. 50.12 (CC 1:171); see McGinn (1998) 310; McGinn (2004) 237. Sokrates, Ecclesiastical History 5.18 (SC 505:204). Martial 2.39 (Loeb 139), 10.52 (Loeb 194); Juvenal 2.68–2.70 (Loeb 154); Scholia in Hor. serm. 1.2.62– 1.2.63 (ed. O. Keller, vol. 2 (Stuttgart: Teubner, 1967), 23–24).

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has argued that this may have been imposed upon return of the adulteress from temporary banishment (relegatio in insulam), the statutory penalty laid down by Augustus’ Lex Iulia de adulteriis, to permanently stigmatise them.55 It is equally possible, however, that convicted adulteresses were paraded in public wearing prostitutes’ dress before being sent to banishment, or that it was a punishment inflicted in variation of the statutory penalty. The imposition of actual work in brothels seems to have been an enhanced form of this practice, and certainly was not an addition, but a replacement of banishment. Neither the wearing of the prostitutes’ toga nor the placing in brothels were ever recorded as statutory penalties in the legal evidence but seem to have been penalties pronounced by local judges. The extant evidence does not allow us to draw conclusions about the status of women who suffered this form of punishment. The hagiographies imply that convicts could be of high rank, but this of course served the literary purpose of their story. If aristocratic women were sent to work in brothels it would have been one of those instances where Roman penal practices diverted from the principle of status-based penalties. Yet, in the case of adultery, gender-based anxieties about the sexual behaviour of women and the need to reconstitute male honour may have overridden such principle. The imposition of the prostitute’s toga in the early empire was certainly meant to place an aristocratic adulteress at the other end of the female social spectrum, to make visible the consequences of her sexual downfall.56 Forced labour in mills, bakeries and brothels raises the question how the penalty was negotiated with those who owned and operated these premises. Where the penalty was connected to the imperial bread supply of Rome and Constantinople, it must have been part of the arrangement the state had with the corpus pistorum. This was not, as the name may suggest, a voluntary business association of bakers, but membership in the corpus, as Boudewijn Sirks has shown, was imposed by the state since the early third century on anyone aquiring property from another member of the corpus burdened with the munus of financing and operating mills and bakeries. This means that members of corpora were mostly relatively wealthy people, who delegated the actual work to freedmen, slaves and free labourers.57 This workforce, in turn, was at times complemented by convicts, who would also be sent to the capitals from the provinces (Sardinia and Lucania/Bruttii were specifically mentioned in the laws) and placed in the pistrina by the Urban Prefect or (in Rome) the Prefect of the Annona. Accepting these convicts must have been, therefore, part of the munus, an 55

McGinn (1998) 166.

56

McGinn (1998) 168.

57

Sirks, B. (1991) 322–344.

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obligation that was not dissimilar from that imposed on government officials to accept defendants under the custodia militaris described in Chapter 5. Convicts did not become the pistores’ slaves, as the penalty could apparently be temporary.58 Accepting them could, however, also have been considered a benefit. As Sokrates reported, again with reference to Theodosius’ visit to Rome in 391, those operating the bakeries where the bread for public distribution was produced at times resorted to devious tactics of recruitment. They installed inns with prostitutes (recruited, it is implied, from the workforce59) above the underground bakeries at street level, used these to trap the prostitutes’ clients and forced them to work in their workshops. Unfortunately, among those so treated was a soldier of Theodosius, who managed to break free and inform the emperor, who straight away shut down the inns.60 Whether Sokrates described an incident that actually occurred in late-fourth-century Rome, or was inspired by cirumstances in mid-fifth-century Constantinople, his story suggests that pistores at times had difficulties enlisting their workforce and may have welcomed a supply of convicts.61 Contrary to bread-making facilities, the evidence is far less clear for the assignment of convicts to brothels. Although we can assume that senators and even emperors participated in ownership of properties used for prostitution and collected rents from those who ran brothels, we know very little about this, mainly because members of the elite were keen on dissociating themselves from such activities.62 Yet, we do not have to postulate public ownership of brothels or their private ownership by individual judges to explain the use of such establishment for state punishment. In the Life of Agnes mentioned above, the brothel to which the young saint was sent was described as being attached to the theatre.63 While this story is fictitious, the author may have been drawing on actual urban topographies of prostitution in late antique Rome. Roman brothels were often found in or near urban places with a high rate of public traffic, such as markets, baths, inns, religious buildings or entertainment spaces, where there may have been a cross-over between actresses and prostitutes: places that also were the focus of urban regulation.64 There must have existed, 58 59 60 61 62 63 64

As implied by the order in CTh 14.3.22 (417) = CJ 12.53.2 to condemn to perpetuis paneficii nexibus. Women working in mills were frequently equated with prostitutes see McGinn (2004) 28. Sokrates, Ecclesiastical History 5.18 (SC 505:202–204). See on recruitment problems also Sirks, B. (1991) 414. McGinn (2004) 33–34 and 169 on possible imperial ownership of brothels in fourth-century Rome. Life of Agnes 10 (AASS, Jan. 2:350–354; BHL 156). McGinn (2004) 15–26, 252–253. On both the spatial and the rhetorical proximity of actresses and prostitutes see Webb (2002) 282–303.

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therefore, a complex web of toleration and obligation between urban magistrates (who also may have been entrusted with collecting the prostitution tax and certainly with the organisation of public entertainment) and pimps that could easily have been exploited by the former.65 Sokrates’ story on the brothels installed on the premises of the bread-making facilities in late antique Rome implies complicity by local magistrates entrusted with their oversight. Interestingly, his account is immediately followed by his description of brothels as places of punishment for adultery (the brothels abolished by Theodosius), which suggests a link between the bakeries’ brothels and the ‘prostitution penalty’. Forced labour was the only truly custodial penalty ever laid down by Roman law before monastic exile in the sixth century. Those convicted to metalla were seriously limited in their mobility, not the least through the wearing of chains. We know very little about supervision and lifestyles of criminals sentenced to opus publicum. The jurists suggest that they were not to wear chains, but, if the Ulpian passage on prisons discussed in Chapter 5 refers to opus publicum, such labourers may have been held in public prisons overnight.66 Sokrates’ story on the working conditions in Roman bakeries suggests that workers were held in underground spaces. This may be confirmed by the law’s label for such workshops as ergastula, a term that also appears in literary sources with reference to forced labour.67 Late Roman martyr narratives from the city of Rome contain scenes of charity both for prisoners and for those convicted to ergastula.68 Their late Roman audience clearly was meant to associate the latter with (underground) confinement. Also convictions to serve in brothels probably destined women to a life in confinement, even if they were not actually enslaved.69 None of these institutions, however, were state-run prison camps. In all the cases described Roman authorities relied on collaboration with staff at the premises, whose primary purpose was not to prevent convicts’ escape, but to operate the business. Also at state-owned quarries and mines, which 65

66 67

68

69

On relationships between pimps and Roman magistrates based on bribery in the early empire see McGinn (2004) 153–155. On the Ulpian passage (D 48.19.8.9) see above Chapter 5. CTh 9.40.3 (319); Tertullian, de anim. 33.7 (CC 2:833); Firmicus Maternus, Mathesis 8.17.12 (Kroll, Skutsch, Ziegler, vol. 2, 312); Sidonius Apollinaris, ep. 1.7.11 (Loeb 376–377); Isidore, etym. 15.6.2 (ed. J. Oros Reta, vol. 2 (2nd edn. Madrid: Editorial Católica, 1994) 242). Paulinus of Nola (ep. 23.13 (CSEL 29.1:170)) compared the travails of the sinner with those in the ergastulum of the mill, which may refer to either forced labour or slave labour. On the term ergastulum see above Chapter 6. Passion of Sebastian 29 (AASS Ian. ii:265–278); Passion of Anastasia 20 (ed. H. Delehaye (Brussels: Société des Bollandistes, 1936) 221–249). McGinn (2004) 236–237 on restricted movement of prostitutes; see also Flemming (1999) 43.

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often featured a military presence, the role of soldiers extended as much to providing technical knowledge on the running of the operations as to the guarding of convict labour, which in any case was usually small in comparison to the intake of slaves or wage-labourers.70 There was little systematic approach to forced labour. Neutralisation of offenders, hence, does not seem to have been the leading motivation behind the penalty. Neither were, as Fergus Millar has shown, economic considerations, except in the narrow sense of ensuring the smooth running of imperial projects.71 The appearance and increase of forced labour was intrinsically connected with the state’s growing ownership of mines and quarries,72 and its interests, for social rather than economic reasons, in the supply of bread to the capital cities and textile for the army that ensued from the early third century on. The laws show that emperors occasionally may have reacted to manpower shortages that afflicted the pistrina in Rome (and perhaps Constantinople) if we are to believe Sokrates, because it was in their own interest to do so, not the least to maintain public order through the state food supply. These convicts were also exempt from annual imperial amnesties, which demonstrates how socially important their work was considered to be.73 Although this is very speculative, the appearance of brothels as places of punishment from the early third century on may be linked to the state’s heightened interest in the vitality of the staffing levels in public entertainment, again seen as essential to public order.74 The state was certainly interested in a thriving prostitution sector due to the profitable tax on prostitutes’ earnings going back to Caligula and re-invented by Constantine as part of his trade tax, the collatio lustralis.75 When we consider the evidence on banishment to metalla, it is striking that some sentences involved sending convicts across the Mediterranean, from Egypt to Palestine, Pontus or to Armenia, or from Constantinople to Egypt, even though there existed mines and quarries closer to the place the court had been held.76 In all theses cases, either the emperor or a judge with 70 71

72 74

75 76

Hirt (2010) 168–201. Millar (1989) 144–145 whose argument that the prime function of forced labour was of humiliation and submission of the criminal’s body I also follow below; see also Harries (1999) 141; Huntzinger (2005) 25. On these developments see also Mrozek (1969) 61–65. 73 CTh 9.40.7(364). On the late Roman state’s interest in public entertainment, which led to tighter organisation of performers and a greater dependency of these on imperial financing see Roueché (1993) 143–156. McGinn (1989) 79–110; Evans Grubbs (2001) 234. Mines in Pontus and Armenia were mentioned as destinations for the monks of Nitria banished by Valens in 375: John Cassian, Conferences 18.7 (SC 64:21); Sokrates, Ecclesiastical History 4.24 (SC 505:100–104); Sozomen, Ecclesiastical History 6.38.8 (SC 495:460).

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a special imperial brief, such as the dux Aegypti Sebastian in 356 or the comes sacrarum largitionum Vindaonius Magnus in 373 were involved, which explains the freedom to disregard provincial boundaries. This may suggest that specific mines and quarries were chosen to keep their workforce stable or to maximise productivity. Condemnation to the mines under Valens, in particular, may be connected to his monetary reforms, which had increased the need for precious metals.77 It is equally possible to conclude, however, that convicts were sent to specific places because these had a certain reputation within their community. As we know from Athanasius, the copper mines in Phaino represented a legendary image of terror in midfourth-century Alexandria, not the least because they had been the destination of choice for Christian dissidents since the beginning of the century and as such formed part of the collective memory of persecution. They were not just ‘any mine’ as Athanasius put it.78 Those sent to Phaino in 356 and 373 were publicly scourged, tattooed and put on board a ship so everyone knew where they were going.79 This civic spectacle of eviction and removal from civilised society was at least as important as, or perhaps for deterrence’s sake even more important, than time served and labour carried out at the mines themselves. In fact, at least in the early fourth century many convicts who ended up in Phaino were unable to work, due to age or because they had been maimed.80 Similarly, Sokrates explained that humiliation was the whole point of placing an adulteress into a brothel. Such places were called σεῖστρα after the percussion instrument because, whenever the convict was performing a sexual act, bells would ring to alert passers-by outside. As such, she was segregated from respectable society, but at the same time her segregation (and in this way, the purity of the community outside) was continuously made evident. Forced labour in pistrina was prescribed mostly for public officials or corporati who had committed theft or fraud connected to the state food supply.81 Again, the focus here was on degradation and the replacement of a position of supervision with one of submission and 77 78

79 80 81

Lenski (2002) 101. Athanasius, Arian History 60 (PG 25:765): καὶ μέταλλον οὑχ ἁπλῶϛ, ἀλλ’εἰϛ τὸ τῆϛ Φαινὼ. For Phaino as a place of banishment during the early fourth century persecutions see Eusebius of Caesarea, Ecclesiastical History 8.13.5 (SC 55:142–143), de mart. Pal. 5.2, 7.2, 7.4, 13.1–13.3 (sc 55:136, 141, 142, 170–172); Epiphanius, Panarion 68.2–68.8 (GCS 25:141–149); Millar (1984) 140–141; Gustafson (1994) 422; Neri (1998) 484. Phaino, alongside Proconnesus, was also where Diocletian wanted Manichees sent in 302: Coll. 15.3.7 (302) (FIRA ii:581). For references see above p. 202. On the productivity of early fourth-century convicts at Phaino see Mattingly (2011) 190–191. CTh 14.3.22 (417) = CJ 12.53.2; CTh 14.4.9 (417); 14.17.6 (370).

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disreputable work in the same environment.82 The frequent use of the term ergastulum for forced labour of this type reflects not only its physical condition but also the fact that law-givers and moral commentators wanted to emphasise its distance to ‘pure’ society and its parallels to slavery and slave work, such as degrading assignment to mill labour and other unclean work.83 As with slave punishment in the household, such social factors, the wish to demonstrate the segregation and submission of the criminal’s body, were as important as rational considerations of economic profitability. Considerations of ‘education’, in turn, either in the form of individual moral improvement or for social re-integration, did not feature in any of the descriptions of the penalty of forced labour before the sixth century. In fact, they were vehemently denied by Sokrates in the case of adulteresses placed in brothels, which did not correct them (οὐ διορθώσει), but prolongued their sin. Theodosius, the church historian suggested, issued laws that prescribed other ways of punishing adultery than this ‘shameless’ method (ἀναιδής).84 It is not unreasonable to think that Sokrates derived his knowledge from actual law-texts, even if these have not survived. He may also have been inspired by attempts of his contemporary emperor, Theodosius II, to eject pimps from Constantinople and to discontinue collection of the prostitution tax in the city, in order to dissociate the Christian imperial office from a sexual activity that Christian teaching regarded as sinful.85 In any case, his comment is testament to the discussions in Christian and philosophically-minded circles at the fifth-century Eastern court, of ‘reform’ as a desirable outcome of punishment even for serious crimes.86 Such outcome was apparently not linked to forced labour, or at least not to prostitution. Yet, a passage from a law by Justinian on the removal of beggars from the streets of Constantinople and their assignment to ‘public works’ (ἔργων τῶν δημοσίων), public gardens and breadmaking facilities (ἐργαστηρὶων), shows that, within a century, the rhetoric around the educative value of forced labour had been considerably transformed.87 Justinian here expressed the hope that change from ‘laziness’ to work would help the beggar to lead a ‘better life’ and one that was not of ‘burden to the 82

83

84 85 86

CTh 7.13.8 (380): a law by Theodosius prohibited recruitment of soldiers from those who worked in taverns, cookshops, bakeries or ergastula. It should be noted that, even though Sokrates did not use it, the original term for brothel in Greek was ‘ergasterion’, see Kapparis (2011) 226. Sokrates, Ecclesiastical History 5.18 (SC 505:204). CTh 15.8.2 (428); NTh 18 (439); see McGinn (1999) 269–274; Evans Grubbs (2001) 235–236. 87 See Chapter 4. NJust 80.5 (545).

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community.’ While this law was not concerned with crime in the technical sense (although the removal of beggars from the street was certainly meant to safeguard public order), Justinian’s legal rhetoric betrays an attitude, as we have discussed in detail in Chapter 4, that considered segregating and defiling the body not just as humiliation, but as a learning opportunity for the invidual and socially beneficial to society.

Functions of late antique exile Let us now return to the penalties of relegatio and deportatio. As I have mentioned at the beginning of this chapter and we will see subsequently, from the fourth century on we witness a proliferation of cases where also those sentenced to these more honourable forms of exile were placed into some form of confinement. In order to fully understand this phenomenon, we must begin by looking at a number of changes that the practice of elite banishment, and particularly its geographical dimension, underwent in late antiquity. These changes reveal innovations in the functions assigned to the penalty of exile, which, as we shall see in the next section, led to unforeseen security blips. The following discussion is based on the quantitative analysis of ca. 150 specific places of exile mentioned in a variety of sources between the reign of Constantine and the reign of Justinian.88 I have investigated these employing a method of interrogation that has been successfully tried in the study of early imperial exile. As Frank Stini has shown, a comprehensive investigation of the geographical distribution of locations chosen for banishment over a period of time allows us to understand larger patterns of penal strategies. As exile was a penalty with a spatial aspect that could be varied according to severity, the selection of banishment places reveals much about the motivations of those pronouncing exile.89 In his study, Stini had to employ this method to deduct those motivations in the first place, given the scarcity of overarching legal theory in normative sources of the early empire, which we have alluded to in the Introduction. For the late empire, as we have seen, this scarcity was less the case. The described method, however, is still very useful, as it allows us to test whether penal strategies connected to the penalty of exile expressed by legal statutes were realised in practice, or how legal practice overcame the incongruities of legal norms. 88 89

For a list see Appendix I, with further comment on selection and interpretation. Stini (2011) 19 and passim. Also see Washburn’s (2007) 168 comment: ‘location expressed the language of punishment’.

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The subjectivity of the sources inevitably skews the evidence towards spectacular cases of exile that involved people at the upper end of the social scale engaged in activities seen as endangering the state and allows us to say very little about more mundane criminals ancient authors were simply not interested in. While this observation holds true for the evidence on exile throughout the Roman period,90 in the late Roman period an additional factor must be taken into account: the focus of many writers on the fate of high-ranking churchmen.91 This is of course a result of the rise of ecclesiastical historiography in this period, which naturally focussed on the subject of Christian controversy. While this need not mean that lay people (and indeed women) were less subject to the penalty of exile or perhaps more put to death than in previous periods, our evidence is most representative where clerical exiles are concerned. Still, as we shall see, while some changes in the practice of exile seem to have originated in the context of clerical banishment, over time they also affected that of lay people. Social hygiene Within the evidence on clerical banishment in late antiquity, we can note two major geographical patterns. Firstly, clerics were more often banished to the mainland than to islands. There was a tendency, not only by provincial governors, who may always have chosen remote exile places within their provinces, but also by the emperor and imperial judges, to banish to places on the margins of the empire.92 Such places frequently were located in the diocese of Thrace (Bizya, Halmyris), the diocese of Pontus (Chersonesus, Pityus, Euchaita, Gangra), the diocese of the East (Palmyra, Petra, Aila), in southern Egypt (Syene, Oasis magna) and in Britain. Some exile locations were also situated in regions that were considered to be hotspots of internal rebellions, such as the mountains between Cappadocia and Armenia with their constant threats of ‘Isaurians’, where Cucusus, John Chrysostom’s place of banishment, was situated.93 In fact, some exiles got caught up in military operations and incursions from beyond the frontiers, sometimes forcing them to leave their place of exile. For example, Eunomius of Cyzikus was removed from Halmyris at the mouth of the Danube delta, where he had been sent 90 92 93

See Stini (2011) 65 and 85. 91 Washburn (2007) 113. See on this trend also Washburn (2007) 177–178 and the maps at the beginning of this book. On John in Cucusus see Kelly, J. N. D. (1995) 250–271. On the threat of ‘internal enemies’ in late antiquity see Lee (1998) 218.

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on his third and last exile stint in 389, after the Goths had crossed the frozen river.94 Exile to frontier regions or regions with current military operations had been very rare prior to the fourth century, at least for senatorial or equestrian criminals the emperor convicted, who provide our most representative evidence in the early empire.95 A real and suprising change was hence at play in the choice of exile places from the fourth century on. There is reason to believe that this change was due to a combination of continuing assignment of retributive functions to exile (to match the severity of the crime to the harshness of the place), and an increased association of exile with social hygiene. As we have seen in Chapter 4, crime, and particularly religious crime, became increasingly associated with sickness, disease and contagion in late antique laws. As a consequence, a concern about purifying the community from wrongdoers through exile was far more pronounced in the official rhetoric of late antiquity than in the early empire.96 Even though a concept of ‘outcasting’ can arguably be traced back to the earliest incidents of aquae et ignis interdictio, the emphasis on spatial segregation rather than ‘only’ denial of civic rights and sources of life was much stronger in the later period, perhaps due to the fuelling of traditional legal rhetoric by Christian discourses. From the late fourth century on, laws abounded with orders to drive various ‘brands’ of heretics from cities (civitatibus), city walls (a moenibus urbium) and villages (vicis), and specifically from Rome and Constantinople and their territories (finibus). Heretics had to be segregated, so the minds of the people could be ‘cleansed’ (tergeantur).97 Their leaders were ‘to go to places which will

94

95

96

97

Philostorgius, Ecclesiastical History 10.6 (GCS 21:128); other examples include Macedonius of Constantinople, Euphemius of Constantinople and John Chrysostom: Theodore Lector, Ecclesiastical History ep. 514 (GCS 53:148); Theophanes, AM 6008 (de Boor 161–162) (Macedonius); Victor of Tunnuna, Chronicle 496 (MGH AA 11.2:192) (Euphemius); for John see Kelly, J. N. D. (1995) 250–271. Stini (2011) 177–178. The poet Ovid, who Augustus exiled to Tomis (late Roman Constantiana) on the western Black Sea, presented an exceptional case, although, ironically, he was to provide Roman exile literature with inspiration for centuries to come. On Ovid and his influence on exile literature see Claassen (1999) 229–251 and Rocovich (2004) 136–141. On his place of banishment as exceptional also see Rivière (2008) 279. Note that Stini (2011) does not consider social hygiene or purification of the community as a motivation behind exile in the early empire, which reflects the comparative rarity of the corresponding terminology in early imperial sources. CTh 16.2.35 (400/405) = CJ 1.3.14 = Sirm. 2; CTh 16.5.6.3 (381); CTh 16.5.13 (384); CTh 16.5.14 (388); CTh 16.5.20 (391); CTh 16.5.31 (396); CTh 16.5.32 (396); CTh 16.5.34 (398); CTh 16.5.43 (398); CTh 16.5.14 (388); CTh 16.5.20 (391); CTh 16.5.18.1 (389); Sirm. 6 (425); CTh 16.5.62 (435); CJ 1.1.3 (448); NJust 131.8 (545). See Barnard (1995) 128; Caner (2002) 199–200; Delmaire (2008) 116–117.

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best separate them, as if by a fortification (vallum) from the community of men’.98 Verbs that were used in late antique laws to describe the act of sending a religious dissident into exile included trudere, contrudere or detrudere. Traditionally these terms had denoted sentences to hard labour in quarries or mines, or custody in the inner space of the public prison. They evoked the image of throwing someone underground, away from the living, a forceful image of physical separation of the criminal from society.99 As legal terms for exile they appear for the first time in the early fifth century, in Honorius’ law that promised imperial help where a bishop who had been ‘dragged away’ (detrusus) from his see, tried to regain it, although it should be noted that Ammianus Marcellinus had already used the term to describe exile of a lay aristocrat a few decades earlier.100 The emergence of the terminology in the context of banishment confirms that physical separation from society that left the exile concealed was seen as a pressing function of this penalty in late antiquity, but also that the articulation of this function was meant to evoke associations with imprisonment, a point to which we will return in the next chapter. Sometimes islands were seen as the most appropriate places to fulfil this function, probably drawing on an age-old conceptualisation of islands as remote and inaccessible.101 Honorius’ laws against Jovanianists and Donatists ordered to send their leaders to separate and ‘solitary’ islands. Still, the phrasing of the law shows that Honorius or the drafters of his laws were aware that not all islands would have fulfilled this function of ‘solitude’.102 Segregation or the imposition of ‘solitude’ through exile did not mean, however, separation from human society in general, but segregation from the one community that, at the particular moment in time, was seen as in most need of protection. In late antique heresy laws, the ‘good’ community was usually thought of as urban, and hence the most pressing aim of exile was expulsion from cities, in particular great Christian centres, such as Rome and Constantinople. Heretics in consequence had to live ‘in other places’ (in aliis locis vivant).103 In the late fourth century, it was seen as healthy enough to condemn heretics to the countryside around cities. Yet, 98

99

100

101 102

CTh 16.5.14 (388): adeant loca, quae eos potissimum quasi vallo quodam ab humana communione secludant. Heumann, Seckel (1971) 143; Huntzinger (2005) 28; see e.g. Augustine, tract. in ev. Ioh. 49.9 (CC 36:425): pro meritis graviorum causarum in ima carceris contruduntur. CTh 16.2.35 (400/405) = CJ 1.3.14 = Sirm. 2; see Ammianus Marcellius, Roman History 22.3.2–22.3.6 (Loeb 192) with reference to the exile of Florentius in 363. On ancient concepts of islands see Lätsch (2005) 217–221. CTh 16.5.53 (398); 16.5.54 (412). 103 CTh 16.5.13 (384); see also CTh 16.5.14 (388).

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with the spread of Christianity also the countryside around cities was seen increasingly at risk, as a law of 398 that ousted Eunomians and Montanists observed. If heretics were found to hold gatherings in the countryside after their expulsion from cities, they were to be deported.104 The law did not specify to which location, but we can imagine that a place like Halmyris, where Eunomius himself was sent, was chosen because, although clearly inhabited, it fitted the requirement of being away from ‘human’ society, almost outside Roman territory.105 When Theodosius II banished the count Ireneus and the presbyter Photius to Petra in 435 for the support they had given Nestorius, he explained in a letter to the Praetorian Prefect Isidore that the purpose of their punishment was to make them suffer from the solitude of the place.106 Petra, being a city, was of course not particularly solitary, but it had a still predominantly pagan population, a circumstance which, in the eyes of the emperor, would make it an inhospitable location for Ireneus and Photius. The same motivations may have underpinned other banishment to Petra in the early fifth century.107 The ‘pagan’ or ‘barbarian’ characteristics of banishment places hence served to emphasise their marginality. In the sixth century, Justinian explicitly ordered exiles to reside together in an imagined no one’s land. In the law that banished Severus of Antioch, Peter of Apamea and the Syrian monk Z’ura from Constantinople in 536, leaders of the opponents against the Council of Chalcedon, who can be loosely grouped under the label Miaphysites, Justinian explained that they could not reside in any city but should be forced to keep company with only each other and ‘other blasphemers’ (βλασϕημούντων).108 Some fifth- and sixth-century laws even demanded the entirely novel expulsion from the ‘soil of the Roman empire’ (extra . . . romani imperii solum repelli).109 Up to this point, a Roman sentence of exile had never been from the territory of the state, the way that exile in the Greek world of the polis had been.110 Such fifthand sixth-century orders of expulsions from the empire were a development of the tenor of the late fourth century heresy laws that came to 104

105

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107 108 110

CTh 16.5.34 (398). For legal anxiety about the late antique countryside as a hub of heretical activity, expressed for example in laws that sought to eradicate the harbouring of heretics by estate stewards (e.g. CTh 16.5.21 (392)), see Bowes (2008) 189–200. On Black Sea cities, particularly those on the northern shore, as being conceived as ‘outside’ the empire see Jastrzebowska (1999) 476. ACO 1.4:203: Irinaeum . . . Photium . . . in Petris exiliari decernimus, ut . . . locorum solitudine crucientur; see PLRE ii, Irenaeus 2, 624. On exile to Petra and the persistent paganism in the city see Kolb (2000), 225. 109 NJust 42.3.pr (536). CJ 1.7.6 (455); CJ 6.23.29 (531); NJust 146.2 (553). Stini (2011) 38–40; on Greek exile compared to Roman see Mommsen (1899) 973.

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expand purification purposes through exile to the empire as a whole, in accordance with both the demographic spread of Christianity and the growing self-stylisation of the emperor as the guarantor of orthodox Christianity. The geographical distribution of actual exile locations suggests that a large majority of judges (and certainly emperors), in this instance, sought to realise such legal orders to eradicate religious dissidence in practice, whith the exception, perhaps, of expulsion from the territory of the empire.111 Sometimes such penal strategies were a response to lobbying by Christian authorities. Philippe Blaudeau has recently charted the influence that the fifth-century Roman bishops sought to gain on the geographical dimension of exile, which was inspired by this quest for elimination of the heretic’s ‘pestiferous mind’ (pestiferis sensibus), drawing on customary Christian language of sin, sickness and excommunication.112 The case of the Constantinopolitan archimandrite Eutyches provides a case in point for the influences of rival bishops on imperial decision-making processes in this matter. After his condemnation as a heretic at the synod of Constantinople in 448 had been confirmed at the Council of Chalcedon in 451, Eutyches was first allowed to retire to his monastery in the suburbs of the capital, but was then moved to Doliche in northern Syria (mod. Duluk). Pope Leo explained in a letter to the empress Pulcheria that the place had been chosen because it was very distant and hence Eutyches would no longer have the support of the people at Constantinople whom he had drawn into impiety.113 At least as a wider pattern over the late antique period we therefore see an intriguing correspondence between norms and practices of banishment. To be sure, late antique practices of exile could also incorporate an element of clemency. Exile gave the emperor a chance to behave graciously in cases of crimes which may as well have merited expulsion from society. One expression of such clemency came in the form of allowing convicts to 111

112

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The only two cases known of exiles outside the empire are Julian’s physician Oribasius, who was banished ‘into the enemy’s country’ under Valentinian I (Eunapius, Lives of the Philosophers, Oribasius (Loeb 534)), and the Anthropomorphite ascetic leader Audius from Mesopotamia, who converted Goths across the Danube in the 350s (Epiphanius, Panarion 70.14.5 (GCS 25:247)). Audius, however, had been banished to a frontier region (Scythia minor) and simply taken his luck beyond the borders and the same can be assumed for Oribasius, see Hartmann, U. (2006) 343–364. Blaudeau (2008) 273–308. The quote is from Simplicius, ep. 14 to Zeno (PL 58:53–54), referring to the exile of Peter the Fuller in 476. Leo, ep. 84 (ACO 2.4:44): ne frequentioribus solatiis eorum quos ad impietatem suam traxit, utatur. Note, however, that in this way Eutyches also came under the control of the bishop of Antioch, which may have been the intention. See Caner (2002) 236 n. 120 and further below in this chapter on the choice of exile places and functions of surveillance.

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reside in their native regions, a form of exile already mentioned by the early imperial jurists.114 For example, the three Homoian bishops Demophilus of Constantinople, Dorotheus of Antioch and Hypatius of Nicaea, who had flourished under Valens, once deposed in 380 were sent by Theodosius to the regions they had originally come from, Thrace in the first two cases and Syria in the last.115 Exile ‘at home’ could mean confinement to a city, but it could also mean house arrest.116 Eunomius of Cyzikus, after his disastrous stay at Halmyris, was told to live on his rural estate at Dakora in Cappadocia.117 As we shall see later, such measures can be seen or were at least understood by contemporarires as precursors to monastic exile. Yet, while exile ‘at home’ was certainly a mild penalty as it kept an exile in familiar surroundings it is notable that most ‘home exiles’ were at locations away from the exile’s former place of activity, often small provincial towns or rural properties. The purpose of exile at home was hence, as Daniel Washburn has argued, also to remind those who had done wrong of their marginalised condition. Theodoret of Cyrus, whom the emperor forced to reside at home (οἴκοι) after his deposition at the Council of Ephesus in 449, noted his solitary, ‘detained’ (καθείργοντος) status and bitterly complained about his treatment, calling it unjust.118 Coercion The second major pattern arising from the geographical distribution of clerical banishment is the rise of cities as places of banishment whose bishops were loyal to the variety of Christianity the emperor of the moment supported.119 Ample evidence for this procedure derives from the events that ensued in the wake of the Council of Milan, which Constantius II had called in the summer of 355 to review the condemnation of Athanasius of Alexandria at the councils of Sirmium in 351 and Arles in 353.120 Quite as the emperor had intended, the council confirmed 114 115

116 117 118

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D 48.22.7.19 (Ulpian). Philostorgius, Ecclesiastical History 9.19 (GCS 21:125). For further cases see Appendix I. CTh 16.5.12 (383) also ordered heretical leaders to be repatriated (ad proprias terras redire iubeantur). D 48.22.7.19 and D 48.22.9 (Ulpian). Philostorgius, Ecclesiastical History 10.6 (GCS 21:128). See Washburn (2007) 176; Theodoret of Cyrus, ep. 119 (SC 111:78). It is unclear where Theodoret exactly was told to reside at this point. He may have been later allowed to retire to his monastery at Apamea (see Appendix II). Theodoret had made a similar complaint when he was forced to reside in Cyrus in 444: Theodoret of Cyrus, ep. 138 (SC 111:138–142). On bishops’ sees as places of late antique exile see also Vallejo Girvés (2000) 517; Washburn (2007) 162–163. These are described in detail in Barnes (1993) 116–119.

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Athanasius’ condemnation and ratified the so-called semi-arian creed of the Council of Sirmium. In line with his previous edict, which had threatened with banishment all bishops who would not subscribe to Sirmium, the emperor exiled the dissident bishops Lucifer of Cagliari, Eusebius of Vercelli, and Dionysius of Milan, who had refused either to condemn Athanasius or to sign the creed or both.121 In the autumn of 355 Liberius of Rome, who had not attended the council, was summoned to Milan. Constantius tried to persuade him to sign the creed of Sirmium and gave him three days time to make up his mind. Liberius refused and was also duly exiled. All four Italian bishops were sent to the East. Of Dionysius of Milan we only know that he died in Armenia, yet the other three were placed, at least in the first instance, under supervision of Constantius’ clerical allies.122 Liberius of Rome ended up at Beroia/Augusta Traiana in Thrace (today’s Stara Zagora in Bulgaria), the see of the Homoian Demophilus, before he became bishop of Constantinople in 370.123 Lucifer of Cagliari was first sent to Germanicia in Commagene (now Kahramanmaraş in southeastern Turkey), where he was placed under the guard of bishop Eudoxius, one of the most important clerical supporters of Constantius in the East. Lucifer was later moved from Germanicia to Eleutheropolis in Palestine (near today’s Bet Gurwin), the see of the Homoian Eutychius, perhaps because Eudoxius became bishop of Antioch in 358.124 Eusebius of Vercelli had to reside at Scythopolis in Palestine (now Beit She’an in Israel), where Patrophilus was bishop, who had previously given Arius a friendly welcome on his exile from Egypt in 323.125 Contrary to banishment to the margins of the empire, the reasons why exiled clerics were forced to reside at the see of a religious opponent are never made explicit in normative sources. One reason, however, may have been the hope that being exposed to the humiliation of visible degradation at their places of banishment, which featured an established church hierarchy, and the doctrinal ‘truth’ propagated by its members would lead the exiles in question to change their minds. If the penalty of exile 121

122 123

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Constantius’ edict, specifying exile for dissident bishops, is mentioned by Sulpicius Severus, Chronicle 2.39.1 (SC 441:312). On Dionysius’ place of exile see Sauser (2000) 275–276. Sozomen, Ecclesiastical History 4.11.3 (SC 418:234); Theoderet, Ecclesiastical History 2.13 (SC 501:412). Lucifer, de Athan. 1.9 (CC 8:17); Lib. precum 63, 89 and 109 (CC 69:375, 381, 387); Jerome, vir. ill. 95 (Herding 55). On his removal see the editorial comment in CC 8: xiii. Eusebius of Vercelli, ep. 2.11.2 (CC 9:109); Sokrates, Ecclesiastical History 3.5 (SC 493:272). On Demophilus, Eudoxius, Eutychius and Patrophilus see Barnes (1993) 123.

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was reversible, so was religious crime, the refusal to subscribe to a creed or to enter into communion with the orthodox majority, for it could be undone through recantation.126 Heresy might have been framed as ‘disease’, and exile as ‘social hygiene’, but as we have seen in Chapter 4 scope for ‘healing’ was inherent to Christian doctrine and increasingly Christian law. There is no reason to believe that such considerations of reform systematically influenced the decision to pronounce sentences to exile in late antiquity, particularly at the level of provincial courts, for recall from exile was the sole privilege of the emperor and could not be preempted.127 Furthermore, as we have also seen in Chapter 4, late Roman emperors continued to emphasise that pardon was a possibility of imperial clemency, not a right derived from showing signs or intentions of improvement. Yet, there is also no doubt that in their quest for religious unity, emperors clearly stood to gain politically from religious dissidents’ change of heart, particularly where it was publicly announced. Many late antique religious dissidents, in fact, were recalled when they showed signs of remorse, tangibly documented in their subscriptions to council decisions and doctrinal formulae.128 In the case of Constantius, Athanasius suspected that ‘reform’ of the four bishops exiled in 355 was on the emperor’s agenda, for he wrote of the emperor’s hope that ‘being separated from each other, they would forget the concord and unanimity which existed among them’.129 Athanasius hence clearly linked the spatial aspect of the punishment to the expectations of change of conduct. While his comment was, of course, a polemical perspective on Constantius’ actions, bringing him into line with the persecutor’s stigma of religious coercion, it could very well have been the emperor’s aim to break the opposition through the conscious choice to banish them to the sees of his clerical allies, which was highly innovative compared to traditional choices of exile places. If ‘coercion’ had been Constantius’ strategy, he could certainly mark a success, for Liberius of Rome, two years into his exile to Beroia and on urging by Demophilus, decided, in fact, to condemn Athanasius. A little later, Constantius recalled

126

127 128

129

See Bond (2014) 16 for similar considerations regarding the penalty of infamy and its balancing of marginalisation and coercion. D 48.19.4 (Marcian); see Rocovich (2004) 52–55; Washburn (2007) 250. See Delmaire (2008) 118 with an overview on and reference for all incidents between Constantine and Justinian. Athanasius, Arian History 40 (PG 25:740): ἤ χωρισθέντες ἀϕ’ἐαυτῶν, ἐπιλάθωνται τῆς ἀλλήλων ὁμοϕροσύνης τε καὶ ὁμοϕυχíας.

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him to Rome.130 Certainly, this recall was not linked directly to Liberius’ condemnation of Athanasius. Liberius had to cultivate patrons and gather intercessors with the emperor through making his change of mind public and hence sent a number of letters, one to the Eastern bishops (a copy of which he also sent to Constantius), to the Homoian bishops in the West, and to his friend, Vincentius of Capua.131 Constantius hence expected Liberius to go through the ritual motions of showing himself contritious enough to merit imperial clemency. This does not preclude, however, that he had hoped Liberius’ place of banishment would foster such contrition. Also subsequent clerical exiles suffered the fate of being placed at the sees of a religious opponent, which suggests that this practice may not have been isolated and driven purely by Constantius’ arbitrary attitude to rulership. It certainly became more routinely used over the course of the fifth century. One such bishop’s city that over the fifth century developed into a prime place of exile for those declared heretics was Gangra, the metropolitan see of Paphlagonia (today’s Çankırı in northern Turkey). Dioscorus of Alexandria was banished here after his deposition at Chalcedon in 451, as was his successor Timothy (nicknamed ‘Aelurus’) in 460, for not subscribing to the decisions of Chalcedon.132 In 519, on order by the new emperor Justin, Philoxenus, the flamboyant bishop of Hierapolis and one of the leaders of the Syrian Miaphysites, arrived in exile possibly at Gangra. We owe the information that he was hosted by the local bishop and felt that he was strictly supervised to himself.133 The same may have been true for his forerunners Dioscorus and Timothy. It was probably not just mere chance that the first attestation of Gangra as a place of exile originates from the same period in which the bishop of Constantinople assumed the privilege, at the Council of Chalcedon, to ordain the metropolitan of Gangra, previously held by the bishop of 130

131

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133

Liberius’ condemnation of Athanasius: Hilary of Poitiers, Coll. Antiar. Paris, B vii.8 (CSEL 65:168– 170); recall of Liberius: Theodoret, Ecclesiastical History 2.17 (SC 501:412). Hilary of Poitiers, Coll. Antiar. Paris, bvii.8, 10 and 11 (CSEL 65:168–170, 169–172, 172–173); these processes are excellently analysed by Washburn (2007) 273–275. Dioscorus: Priscus frg. 28 (Blockley, vol. 2:324); Evagrius, Ecclesiastical History 2.5 (SC 542:256); Victor of Tunnuna, Chronicle a. 453 (MGH AA 11.2:185); Liberatus, Breviarium 14 (ACO 2.5:123); Zacharias, Ecclesiastical History 3.2 (CSCO 83:154–155; CSCO 87:106); Theophanes, AM 5944 (De Boor 105– 106). Timothy: Evagrius, Ecclesiastical History 2.11 (SC 542:294); Zacharias, Ecclesiastical History 4.7, 4.11–4.12, 5.1 (CSCO 83:178–179, 184–186, 109–211; CSCO 87:124, 128–129, 145); Theodore Lector, Ecclesiastical History ep. 380 (GCS 53:107); Theophanes, AM 5952 (De Boor 111–112). Philoxenus of Hierapolis, Letter to the Monks at Senoum (CSCO 232:76, 77–78). On his exile to Gangra see also Zacharias, Ecclesiastical History 8.5 (CSCO 84:77–82, 88:52–57); Theophanes, AM 6011 (De Boor 165). See, however, also A. Halleux, ‘Introduction’ (CSCO 232:iv) who argues Philoxenus was at Philippopolis when hosted by a bishop.

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Ancyra.134 Under this arrangement, events at Gangra as well as the political culture and religious orthodoxy of its bishops were tightly controlled by Constantinople, which must have made it appear as a perfect place to send religious dissidents. Religious coercion, in the sense of fostering acceptance of doctrine, was hence another function of late antique exile, which had a particular impact on the choice of banishment places. The story of Timothy Aelurus of Alexandria at Gangra just cited, however, shows that the initial functions assigned to exile and the actual outcome at times did not match up. Leo in fact had to move Timothy from Gangra to Chersonesus (that is, further to the margin of the empire on what is now the Crimean peninsular) on request of bishop Gennadius of Constantinople, because he had caused disturbances through holding rival assemblies that had seriously undermined the bishop of Gangra’s authority.135 Such risks to the orthodoxy of Gangra had, however, apparently not been foreseen by Leo when he first pronounced Timothy’s banishment.

Exile places, security and imprisonment So far, we have observed how, from the fourth century on, the new crime of Christian dissidence and related functions of exile as social hygiene or religious coercion led to a number of changes in the practice of banishment, in particular the emergence of either remote regions or of bishops’ sees as destinations of forced residence. As we shall now see, these changes resulted in an entirely new set of security issues that legal authorities had often not anticipated and which they were only slow in coming to terms with. Security, in this context, means prevention of escape, but even more so neutralisation, the control of an exile’s influences. Many late antique exiles were indeed at some point, following an incident of disturbance, moved from their place of banishment to places with closer surveillance to allow for a higher level of control. One notable case was that of Barses, the deposed Nicene bishop of Edessa, who in 373 had been sent to the island of Aradus off the coast of Phoenicia (today’s Ruad in Syria). Here he attracted such throngs of visitors that he was subsequently sent to Oxyrhynchus in Egypt, a city perhaps not coincidentally endowed with a military garrison at the time. After he had exercised 134 135

Janin, Stiernon (1981) 1096. Theodore Lector, Ecclesiastical History ep. 380 (GCS 53:107); Zacharias, Ecclesiastical History 4.7, 4.11–4.12, 5.1 (CSCO 83:178–179, 184–186, 109–211; CSCO 87:124, 128–129, 145); Theophanes, AM 5952 (De Boor 111–112).

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the same attraction at Oxyrhynchus as he had on Aradus, however, Barses eventually ended up at ϕηνὸ, a remote fortress according to Theodoret of Cyrus.136 Another exile who was sent to ever tighter levels of control was the deposed bishop of Constantinople Nestorius. After the Council of Ephesus in 431, Theodosius II allowed him first to reside at his old monastery on the outskirts of Antioch in an attempt to combine an act of imperial clemency with rural marginalisation. Three years later, however, Theodosius banished Nestorius to Petra.137 He ended up at Oasis magna, in the city of Hybis in its easterly depression (today’s el-Khargeh), perhaps due to the influence of Cyril of Alexandria, who may have preferred Nestorius’ residence in Egypt for it allowed for more control.138 Yet, Nestorius was taken from Oasis Magna by the Blemmyes, a loose conglomeration of Nubian desert tribes, during a raid. After his release, he turned himself in to the authorities at Panopolis. The count of the Thebaid, however, did not allow him to live in the city, and neither to return to Oasis Magna, but ordered Nestorius to reside in a fortress near Panopolis.139 Nestorius’ story powerfully demonstrates that his influence and authority had not diminished by his placement in a non-urban environment. It is such endemic changes of location and tightening of security measures that demand our attention, for they suggest that there was little synchronised thinking to align the function of exile with reality. Such incongruity between aims and outcomes of penalties within the late Roman imperial administration can in fact also be observed elsewhere, in the context of forced labour imposed on Christians during the early fourth century persecutions, which led to the flourishing of the Christian community at the mines of Phaino that, when noticed, was brutally dismantled by imperial authorities in 311.140 Where exile of high-ranking clerics during the Christian empire was concerned, such drastic measures seem to have been out of the question. In this context, it was often local authorities, and, among these, frequently local bishops faced with the prospect of a rival, who sought to iron out ill-advised choices of place. 136

137 138

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Theodoret, Ecclesiastical History 4.16 (SC 530:240–242). On the military garrison in Oxyrhynchus see Bagnall (1993) 46 n. 13. The phonetics probably exclude that this could have been the same place as the mines at Phaino. ACO 1.1.3:67. Evagrius, Ecclesiastical History 1.7 (SC 542:129–140) citing a letter by Nestorius who identified his residence as ‘Ibis’. Evagrius, Ecclesiastical History 1.7 (SC 542:129–140); John Rufus, Plerophories 36 (PO 8:82). It may be the fortress at Sinbelğe, near Panopolis (mod. Akhmīm), see Kosiński (2008) 41. See Mattingly (2011) 190.

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For example, in the case of Nestorius just mentioned, the bishop of Antioch and Nestorius’ former friend, John, had complained about Nestorius’ continuous influence and desperately urged the emperor to remove him.141 We gain insight into such processes of competition between exiles and local authorities in particular through the case of Eusebius of Vercelli, banished, as we have seen, to Scythopolis in 355, the see of Constantius’ clerical ally Patrophilus. Here, as Eusebius explained in a letter to his diocese in Italy, he had taken up residence at a hospitium, which Patrophilus himself had assigned to him with the help of imperial agentes in rebus. The hospitium he refers to may have been a commercial inn, but it could also indicate just a lodging place, perhaps with a citizen of Scythopolis.142 Collaboration between the bishop and the imperial agents suggests that Patrophilus initially had been content with Constantius’ exile plan for Eusebius, but things apparently did not go according to plan. After their arrival Eusebius and his companions began to tend to the poor of the city, seemingly with resources sent to them from their community back home at Vercelli. At some point, a mob (multitudo) arrived, seized Eusebius and brought him to the officina infidelitatis, perhaps Patrophilus’ church. He was then placed under guard in another hospitium. Eusebius went on hunger strike and was released after four days. About a month later, Eusebius all the while tending to the poor again, ‘armed men’ burst into his hospitium and once again confined him, this time together with his presbyter Tegrinus. They also confiscated his belongings and sent his clerics to the public prison (carcer). Those who came to visit both him and his companions in the carcer to bring them food were also arrested. Earlier commentators of Eusebius’ letter have taken the events he described at face value, and followed him in his characterisation of his entire exile as ‘imprisonment’.143 Daniel Washburn has recently shown, however, that Eusebius’ powerful rhetoric of martyrdom and persecution masks the fact that the bishop had not been in confinement throughout his stay in Scythopolis. It was a result of his actions after he had come to the 141

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John of Antioch’s complaints are reported by Evagrius, Ecclesiastical History 1.7 (SC 542:129) and Theophanes, AM 5925 (De Boor 90–91); John’s jealousy is particularly commented on by a Syriac Life of Nestorius preserved in a sixteenth-century manuscript, see Briére (1910) 21. On the meaning of hospitium see Lewis, Short (1963), s.v. ‘hospitium’, 867. We know from Epiphanius of Salamis (Epiphanius, Panarion 30.5.1–30.5.5 (GCS 25:339–340)) that during his sojourn at Scythopolis Eusebius stayed with the Jewish convert Joseph, a comes, but it is not clear whether this was before or after the events of Eusebius’ confinement. On Joseph see PLRE I, Iosephus, 460. See Goemans (1963) 184–189; Dattrino (1979) 60–82.

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city. His and his clerics’ food distributions from their lodgings to the city’s still largely pagan poor had incited the anger of the city’s actual bishop, Patrophilus, with the described results, for it had crucially undermined Patrophilus’ power base and reputation as a bishop.144 A similar conflict seems to have ensued at Eleutheropolis, the place of banishment of Eusebius’ colleague Lucifer and the see of bishop Eutychius, for Lucifer’s lodging, where he used to celebrate mass, was invaded at some point, and his books and sacred vessels seized. We can imagine that Eutychius did not tolerate competition over spiritual authority in his city either.145 While we do not know the concrete identity of Lucifer’s attackers, in Patrophilus’ case it is clear that he was assisted by the local civil authorities, as he also managed to detain some of Eusebius’ followers in the public prison. One may imagine that similar resentments about exiles’ behaviour at their place of banishment also led to other incidents of confinement we know of. It was certainly behind Philoxenus of Hierapolis’ detention in a xenodochium at Gangra or Philippopolis in 519 at the hands of the local bishop.146 Liberius of Rome, in exile at Beroia after 355, the see of the Homoian Demophilus, also alluded, albeit in a more oblique way, to his subsequent confinement after his arrival in the Thracian city. In a letter written to his friend Vincentius, bishop of Capua, whom he entrusted with delivering the message that he had renounced communion with Athanasius to the emperor, he complained that he had been recently separated from his deacon Urbicus by the agens in rebus Venerius, which suggests some sort of arrest while they had been at Beroia.147 It was not only bishops who struggled to control exiled religious dissidents that arrived on their doorsteps. Imprisonment of such exiles could also come, and probably for the same reason of addressing a neglected security concern, at the hands of civic officials. Athanasius reported that in 350 Paul of Constantinople was locked away at Cucusus in Armenia and later strangled in this place. Athanasius laid the blame for this treatment squarely at the door of the Praetorian Prefect Philippus and warned not to believe any stories that claimed Paul had died of illness, for it was the vicarius Ponticae Philagrius himself, surprised and outraged at this abuse, who had made it public.148 This suggests that Paul’s confinement had not 144 145 146 147 148

Washburn (2009) 731–755. I also follow Washburn’s reconstruction of events. Lucifer’s fate is described in Liber precum 109 (CC 69:387). Philoxenus of Hierapolis, Letter to the Monks at Senoum (CSCO 232. Script. Syr. 99:76, 77–78). Liberius to Vincentius, in Hilary of Poitiers, Coll. Antiar. Pars., bvii.11 (CSEL 65:172–173). Athanasius, Arian History 7 (PG 25:701). Sozomen, Ecclesiastical History 4.2 (SC 418:194) was not so sure whether Paul had been murdered. On Philagrius see PLRE i, Fl. Philagrius, 694.

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been ordered at the time of his banishment, but was a later development, probably to address a concern about sedition. This was certainly the case in the arrest of the wandering monk Alexander in the early fifth century. Alexander, who in 420 was to found the monastery of the ‘Sleepless Monks’ in Constantinople, some time before had been exiled to Chalcis by the military count of Antioch on request of bishop Theodotus. The count seems to have spent little thought on what his action meant to the city of Chalkis. His objective was the short-term restoration of peace at Antioch. After his arrival in the neighbouring city, Alexander was placed under the guard of municipal slaves, ‘since the magistrates feared him’, as his hagiographer put it. The town councillors in Chalkis were hence less than pleased with the sudden presence of this man in their city.149 Exiles’ and particularly clerical and ascetic exiles’ behaviour at their places of banishment could hence lead to the worsening of the relationships with the local authorities and ultimately their imprisonment. It should be noted, however, that very few of them were detained in actual prisons. As we have seen, Eusebius of Vercelli at Scythopolis, Philoxenus of Hierapolis at Gangra, Liberius of Rome at Beroia and possibly also Paul of Constantinople at Cucusus were all held in what can best be described as house arrest (some of these in places connected to the local bishop’s church, a point to which we will return in Chapter 9). Even the monk Alexander, while guarded by public slaves, was free to leave the city disguised as a beggar, which suggests that he had not been properly incarcerated. In fact, a stay in the public prison, the carcer of the praetorium in Alexandria, is known positively only of Victor of Tunnuna and Theodore of Cebarsussi, banished from North Africa to Alexandria in 555 for not subscribing to the decisions of the Council of Constantinople the previous year. They were first held in a public prison, the carcer of the praetorium, but after a few days they were moved from there to the castellum Diocletiani and then to the monastery at Canopus fairly quickly within months.150 What this means is that, on the one hand, places of detention could vary according to on whose authority the arrest happened – for bishops may not always have had access to public prisons – but also that, on the other, there was an attempt to take note of an exile’s dignity and status. The frequent negligence of security aspects in the case of late antique clerical exile was partly due to a protracted understanding of the 149

150

Life of Alexander Acoemetes 41 (PO 6:690; transl. Caner (2002) 273). See on this episode Lenski (2006) 345. Victor of Tunnuna, Chronicle 556.2 (MGH AA 11.2:204–205).

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consequences of exiling religious dissidents, as opposed to more conventional criminals. Recent research has shown that in the case of the latter, even or in particular if they were members of the senatorial elite exiled for treason, imperial authorities over centuries had been quite unconcerned about activities at or escape from a place of banishment. The danger that aristocratic exiles could cause far away from the political centre of the empire and their networks of power had been deemed minimal unless they were sent in the vicinity of the military, one reason why frontier regions which allowed exiles’ contacts with military units and enemies beyond the border had been usually shunned in the early empire.151 Furthermore, running away and roaming the provinces represented a less desirable option for aristocratic exiles than staying put at the place of banishment, as it meant living an underground life and forfeiting the little control over property left and, in consequence, family, friendship and client networks.152 Christian dissidence, however, essentially a matter of spreading beliefs through teaching and ritual, was a very different issue compared with treason and political opposition. In contrast to senators, the social and cultural connections of high-standing clerics were often located in the provinces to start with. Due to the decentralised nature of Christianity and its proselytising aspects, they were able to build up powerful communities of followers (sometimes, as we shall see further in Chapter 10, using the platform of monasteries) that the central authority struggled to control wherever they went and also in remote locations. In fact, the frequent exile of religious dissidents may have considerably aided the spread of Christianity, for it led to an unprecedented circulation of ideas and Christian writing.153 Furthermore, as we shall see in the next chapter, the status of an ‘exile’ may have considerably increased a cleric’s ascetic credentials and hence spiritual authority. The image of the exile as a ‘holy man’ with an immediate impact on his surroundings was also articulated in triumphal fashion in a great many of late antique exile stories, from the Anomoian leader Aetius, who allegedly averted pestilence and drought from the inhabitants of his place of banishment Amblada in Pisidia, to the two Nicene hermits Macarius the Elder and Macarius the 151 152

153

Stini (2011) 177–178. See Rocovich (2004) on the success of lay exile precisely because it hit the core of a senator’s power base: political participation, closeness to the emperor, and relationship to clients and friends at Rome. See Frend (1959) 10–30; Escribano Paño (2004) 259; Rocovich (2004) 196; Escribano Paño (2006) 236; Washburn (2007) 115–116, 178.

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Younger, who converted the inhabitants of the Nile island they had been banished to in 373 and turned the pagan temple into a church after performing exorcism on the possessed daughter of the local priest.154 Banishment of exiles to remote locations where they would reside among pagans, other heretics, barbarians and peasants could be celebrated as social hygiene and protection of the ‘congregation of the good’, but in practice increased the danger emanating from their power of conversion and agitation.155 There is some evidence that at times concerns about security and neutralisation of influence of clerical exiles led to a more conscious selection of banishment places. Under this category fall incidents which we can describe as ‘fortress banishment’ (see Appendix II). For example, during the mass expulsion of Athanasius’ supporters from the churches across Egypt ordered by the dux Aegypti Sebastian in 356, one bishop, Dracontius, was sent to, in Athanasius’ words, ‘the desert places about Clysma’ (southwest of modern Suez). Jerome reported that the Palestinian anchorite Hilarion visited this bishop at the ‘fortress (castrum) of Thaubastum’ a short while later. The passage suggests that Dracontius was held within a military compound mentioned also in the fifth-century Notitia Dignitatum. This may also be true for his fellow bishop Philo, exiled on the same occasion to Babylon, where he was also visited by Hilarion. Babylon (now part of Old Cairo) was an ancient fortified town in the Nile delta and headquarter of the Legio XIII Gemina in the fourth century. A third bishop, Adelphius of Onuphis was sent to Psinaula, a fortress on the east side of the Nile south of Antinoë, where the Ala II Herculia dromedariorum was stationed.156 In all three cases, Athanasius claimed that the purpose of the choice of exile place had been for the bishops not to reach their destinations, but to die on their strenuous journey through the desert. Jerome’s account proves that this did not happen. One may suspect, therefore, that these three bishops were singled out as in need of closer control than the other dissidents on whose banishment Athanasius reported on the same occasion and who were mostly simply expelled from cities. 154

155 156

Philostorgius, Ecclesiastical History 5.2 (GCS 21:66); Sokrates, Ecclesiastical History 4.24 (SC 505:100–104); Sozomen, Ecclesiastical History 6.20 (SC 495:334–340). See Washburn (2007) 163, 177–178. Athanasius, Arian History 72 (PG 25:780); on Dracontius and Philo see Jerome, Life of Hilarion 20 (SC 508:268). On Thaubastum, Babylon and Psinaula see Notitia Dignitatum 28 and 31 (ed. O. Seeck (Berlin: Weidmann, 1876), 59, 60, 64–65); also ‘Babylon’ [Sethe], RE 2.2:2700; ‘Psinaula’ [Kees], RE 33.2:1407.

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In the course of events following John Chrysostom’s second deposition as bishop of Constantinople in 404, again a number of his followers were sent to what were clearly fortresses. These were the four bishops who had been part of John’s embassy to Rome, and hence had revealed themselves as particularly troublesome.157 One of them, Palladius of Helenopolis, who was also John’s biographer, wrote that all four were held under public guard (ὑπο δημίων ἐισέτι καὶ νῦν ϕρουρούμενοι). Eulysius of Bostra was dispatched to the fortress Misphas in Arabia ‘in the proximity of the Saracens’, Cyriacus of Emesa to Palmyra, ‘a Persian fortress’ (τῶν Пερσῶν ϕρούριον), and Palladius himself to the fortress of Syene (Assuan, modern Awan) in the Thebaid, where, according to the early fifth-century Notitia Dignitatum, the Milites Miliarenses and the Cohors V Suentium were stationed.158 The fourth bishop was Demetrius of Pisinum, who was forced to reside under guard at Oasis magna.159 Palmyra and Syene were of course also cities and bishops’ sees, but it seems that it was their role as military forts that recommended them as exile places on this occasion, to deal with a particular group among those who had supported the deposed John.160 Institutions that may be fortresses also feature in clerical exile episodes from the sixth century. Flavian of Antioch was exiled to the castellum of Petra in 512,161 and in 516 Elias of Jerusalem was sent to the castellum Paraxenense. This place may have been situated in or near Aila on the Red Sea, south-east of Gaza, where the Palestinian abbot Sabas later visited the banished bishop. The trading city Aila (modern Eilat) had been the home of the Legio X Fretensis in the early fifth century, although the military presence in this region had been much reduced since that time.162 The term castellum in fact may also refer to a fortified hilltop settlement, as

157 158 159 160

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On the delegation see Palladius, Life of John 4 (SC 341:84–92). Palladius, Life of John 20 (SC 341:396–406). For the military presence at Oasis magna see Reddé (2007) 421–429. Palmyra had been turned into an important military post on the strata Diocletiana by Diocletian. The Notitia Dignitatum of the early fifth-century records the Legio I Illyricorum at Palmyra. Diocletian had also fortified Syene. In addition to the garrison in Syene, the cohors I felix Theodosiana was posted on the nearby island of Elephantis and the cohors VI Saginorum in Syene’s granite quarries, on all see Notitia Dignitatum 31 (ed. O. Seeck (Berlin: Weidmann, 1876), 64–65); on Syene ‘Syene’ [Kees], RE 4A.1:1024–1023. Marcellinus comes, Chronicle ann. 512 (MGH AA 11.2:98). It is unclear whether this was a reference to the ancient city in Arabia or to Petra in Colchis/Lazika on the Black Sea (modern Tsikhisdziri in western Georgia) where Justinian built a large fort. On the latter see Braund (1994) 294. On Petra in Palestine during late antiquity see Kolb (2000) 203–211. Victor of Tunnuna, Chronicle a. 509 (MGH AA 11.2:194); Cyril of Scythopolis, Life of St Sabas 56, 60 (transl. R. M. Price (Kalamazoo, Mich.: Cistercian Publications, 1991), 160, 170–171). On the Legio X Fretensis see Kennedy (2000) 194–197; Kolb (2000) 216.

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it often did in late Roman North Africa.163 In 565, the deposed patriarch of Constantinople, Eutychius, was sent to the island of Principus, in the Sea of Marmara, where he was to reside under military guard.164 We can notice, therefore, that in some instances there may have been attempts to place exiles under some sort of surveillance right from the start of their banishment. This did not always have to happen in a military environment. In the context of the round-up on John Chrysostom’s followers, Palladius reports on one bishop, Heracleides of Ephesus, who was held in ‘custody’ (εἱρκτή) in Nicomedia. This term denotes a perhaps less informal form of confinement, such as house arrest.165 Usually, however, a military space was chosen. A number of the accounts of fortress banishment may have in fact referred to forms of internment that were in some ways related, but not necessarily identical to hard labour in imperial mines or quarries. The decision to banish Palladius of Helenopolis to military guard at Syene may have been connected to the presence of the red granite quarries near the city and the detachment of a military unit to its supervision. The military supervision of Eutychius, patriarch of Constantinople, on the archipelago of Principus in 565 was perhaps provided by the soldiers who garrisoned the copper mines of the islands.166 These exiles do not seem to have been put to labour as the authors reporting on their banishment would almost certainly have mentioned this. They were sent to mines or quarries as a gesture of humiliation or coercion and certainly also in the hope that the announcement of their sentence would make an impression on their communities. However, the fact that imperial quarries and mines usually housed a military unit and were naturally endowed with a supply of spaces to supervise people also means that their infrastructure predestined them for hosting of exiles who were seen as in need of surveillance.167 Clerical fortress banishment often and certainly at the beginning arose in a provincial and pragmatic context. As we have seen, we encounter it for the first time during the dux Aegypti Sebastian’s clean-up of Athanasius’ 163 165

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164 Banaji (2007) 270. Life of the Patriarch Eutychius 38 (PG 86:2317–2320). Palladius, Life of John 20 (SC 341:396–406). On the meaning of εἱρκτὴ see Liddell, Scott (1996) s.v. ‘εἱρκτή’, 490. On the quarries near Syene see ‘Syene’ [Kees], RE 4A.1:1024–1023; on Principus see Vallejo Girvés (2006) 195. She points out that in the later Byzantine period the islands of Principus were places for the execution of the penalty in metallum. On soldiers as guards in imperial mines and quarries see Neri (1998) 491 and Hirt (2010) 168–201. Firmicus Maternus mentions guards as a feature of the penalty in metallum (Firmicus Maternus, Mathesis 8.17.1–8.17.2 (Kroll, Skutsch, Ziegler) vol. 2, 312). See further Chapter 8 on living conditions at mines.

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supporters in 356 on special order by Constantius. It should not be regarded as a coincidence that he was a judge who as dux also held military competences.168 Other fortress banishment, such as that of Elias of Jerusalem at Aila in 516 (if we can interpret it in this way), also happened on the watch of military men, in this case that of the dux Palaestinae Olympus. Like other judges, such men must have chosen exile places from a pool of existing infrastructure, but the overlap of military and civic competences in their case meant that military compounds came to be part of this pool. Military commanders banished to fortresses where provincial governors may have banished to islands or other civic places in their provinces. What this means is that, while a degree of security concern may be detected in fortress banishment, this may not have been the primary motivation behind the decisions taken, which often could have been pragmatic and aiming at making a judge’s life easier. This is not to deny that under some emperors fortress banishment perhaps became a more methodical penal strategy. In particular the wide geographical spread of the fortresses John Chrysostom’s friends were banished to suggests that these had been chosen directly by Arcadius. The emperor may have felt that control could be tighter under military supervision than in a distant city, however loyal that city’s bishop might be, and however distant, inhospitable and savage the region was considered. Fortress banishment may also have allowed an emperor to solve the problem of an exile’s sustenance. As we have seen, banishment in the form of deportatio was usually connected to property confiscation, and clerical exiles were no exception. The property of Nestorius of Constantinople, for example, was confiscated and given to the church of Constantinople by imperial decree.169 A number of clerical exiles are reported to have been economically supported by the emperor subsequently to their conviction. For example, Paulinus of Trier, exiled to Phrygia in 353, received imperial bread rations. Liberius of Rome was offered money by Constantius in 355 and declined it.170 That the aim of fortress banishment could be partly to provide such livelihood is demonstrated by the case of the Miaphysite bishop Theodosius of Alexandria, deposed in 536, who Justinian sent to the fortress Derkos in Thrace, a day’s journey away from Constantinople.171 John of Ephesus, our witness to Theodosius’ exile experience and, despite theological differences, well 168 170

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Palme (2007) 247. 169 ACO 1.1.3:67. Paulinus: Hilary, Against Constantius 11 (SC 334:190); Liberius: Sozomen, Ecclesiastical History 4.11 (SC 418:232–238). John of Ephesus, Life of Z’ura (PO 17:35) and Life of John of Hephaistopolis (PO 18:528–529).

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disposed towards the imperial couple, noted that the imperial couple made sure that the inmates had enough food.172 We should not assume that economic support was purely a gesture of imperial clemency, for it also ensured that exiles did not have to be in touch with their surroundings to make a living, and in this sense it was isolating. Still, fortress banishment seems to have remained a measure employed on an irregular basis and was considered suspect, as was the practice of imprisoning exiles on the whole. It exposed exiles to humiliating and demeaning treatment and, perhaps more importantly, those imposing the imprisonment of the charge of keeping an illegal private prison of the sort described in the previous chapters. In 529, probably not conincidentally the same year in which he sought to abolish private prisons, Justinian also issued a law that prohibited exiles from being held in a public prison (δεσμωτήριον) at the place of their trial. This provision was not new, for already Theodosius II had ordered to release exiles from the public prison (carcer).173 Theodosius had sought to address the problem of some convicts lingering in the prison awaiting the execution of their exile penalty, apparently out of a judge’s negligence rather than security concerns, also stipulating that these were to be included in regular imperial amnesties. Justinian now went a step further, also prohibiting that exiles were to be confined anywhere in the province to which they had been banished.174 Exiles should be able to move freely within the province, the emperor explained, although they were neither to leave it nor to stir up sedition. The law confirms the practice, described above, that local authorities often imposed a form of imprisonment, here called ϕυλακή, as a harsher penalty when exiles revealed themselves as troublesome. Justinian ordered that such troublemakers were to be put to death rather than imprisoned, either by the governor of the province to which they had been exiled or of the province they had escaped to. Judges were also not to send people to ‘prisons’ (ϕυλακαί) in other provinces. The term does not necessarily have to mean that exiled people were held in public prisons, for ϕυλακή, as we have seen in Chapter 6, denoted a whole range of forms of custody and was also the term of choice to describe private prisons prohibited by Justinian in the same year.175 What this means is that Justinian seems to also have prohibited the practice of holding exiles under house arrest, which, as we have seen, had been previously endorsed 172

173 175

On John of Ephesus’ complex relationship with Justinian and Theodora see Ashbrook Harvey (1990) 80–82. 174 CTh 9.40.22 (414); 9.40.23 (416). CJ 9.47.26 (529). Justinian’s law against private prisons is CJ 9.5.2 (529). See above Chapter 6.

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by imperial law. His main concern, however, was confinement at Gypsus, the Egyptian alabaster quarries, here described as both a ‘fortress’ (ϕρούριον) and a ϕυλακή. Only the governors of the Egyptian provinces of Alexandria and the Thebaid had the right to exile convicts there and to the Oasis (Oasis magna in the Thebaid, now known as the New Valley/Wadi el-Gedid). At both they were, however, allowed to hold them only for the maximum of one year. Any longer or permanent exile was to be spent within the entire territory of a province. Exiles to the alabaster quarries were therefore clearly distinguished from those banished there for forced labour, for these were certainly not expected to be released to roam the province after one year. Justinian’s law seems surprising, particularly as he was an emperor, who a few years after this law, included earlier provisions on exiles’ house arrest in the Digest and, more importantly, engaged both in transferring exiles to tighter security arrangements, in the case of Victor of Tunnuna, and to fortresses, in the case of Theodosius of Alexandria, who we have just mentioned. A solution to the understanding of this conflicting evidence may lie in the context in which the law of 529 was published. The mention of Gypsus and Oasis indicates that problems in Egypt had prompted Justinian’s legislation. It is tempting, although purely speculative, to connect his law to the conciliatory and diplomatic tone the emperor adopted at the beginning of his reign towards the Miaphysites, many of whom had relocated to Egypt after their deposition and banishment under Justin and may have suffered from persecution (including imprisonment) by state or local authorites there.176 The law may have been an attempt by Justinian to exhort his officials to moderation, while at the same time warning Miaphysite exiles about the dire consequences of troublesome behaviour. The end of the dialogue with Miaphysite leaders in 536, which also saw Theodosius of Alexandria’s banishment to the fortress of Derkos, and the religious upheaval of the Three-Chapter-Controversy in the 540s may have convinced the emperor, as it had those before him both at imperial and at provincial level, that some clerical exiles simply must be controlled more tightly for security purposes or coercion. As we shall see, monastic exile came to play a major role in this balancing act between the need for surveillance of exiles and the need of emperors to avoid an image as persecutor and ‘jailer’.

176

See on Egypt’s attraction to Miaphysites and Justinian’s dealings with the Miaphysites at the beginning of his reign Leppin (2011) 70–71, 92–98.

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Lay exile and the rise of forced clerical ordination While most known episodes of late antique exile concern the banishment of clerics, some conclusions can also be drawn about the legal functions and practices of exiling lay people. Particularly in the fourth century, exile on an island was, true to its traditional nature, a penalty for high-elite men, senators, imperial officials and members of the imperial family, usually those who had been convicted of treason.177 This is not only borne out by the anecdotal evidence, but also imperial laws, where they mention the penalty of exile in insulam, generally did so with reference to ‘lay’ crimes (crimes relating to marriage, corruption or counterfeiting money).178 However, as the evidence contained in Appendix I suggests island exile for treasonous aristocrats and imperial officials seems to have fallen out of fashion during the course of the fifth century. The impression of a decrease in island exile for lay offenders may, of course, be determined by the extant sources, focussing, as they do, on religious controversies and church-men convicted of heresy. Yet, lay aristocrats and members of the imperial family continued to feature in the sources during the later period. Their cases suggest that the functions assigned to lay exile became similar to clerical exile from the late fourth century on, leading to comparable practices and, crucially, problems of security. As we have seen in Chapter 4, the late antique legal rhetoric of crime as contagious disease was not limited to heresy, but extended to traditional crimes, including murder or treason. In consequence, where these were to be punished by exile, laws adopted the language of social hygiene that was similar to comments on heresy. For example, the imperial chamberlain Eutropius, convicted in 399, was described as having ‘defiled’ his rank, which justified his damnatio memoriae, the destruction of his images everywhere, so that they could not ‘pollute’ (polluat) the places they had decorated. Eutropius himself was to reside in Cyprus, ‘walled up’ (vallatus) and under strict military guard, to prevent him from disturbing matters through his ‘madness’ (rabie). After a short while, he was moved to 177

178

Half of our evidence for island exile in the period 325 to 565 concerns lay people (for the actual cases see Appendix I). References to Britannia and Sardinia have been excluded from this calculation, as due to their size and geographical position exile to Britain and Sardina rather falls into the category of remote region. On island exile as a penalty predominantly for lay offenders in late antiquity see also Vallejo Girvés (1991) 161–162. Deportatio in insulam: CJ 9.12.17 (319); CTh 3.16.1 (331); CTh 9.16.1 (320); CTh 9.21.2.4 (321); CTh 10.11.1 (317) = CJ 10.13.1; CTh 12.1.6 (319) = CJ 5.5.3; Relegatio in insulam: CTh 1.5.3 (331); CTh 3.5.5 (332); CTh 8.5.4 (326?). Only CTh 16.5.53 (398); CTh 16.5.54 (414) mention deportatio in insulam for heretics.

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Chalcedon, where he was killed, so clearly Cyprus had not lived up to expectations of purification.179 Under Justinian, connections between exile and contamination extended to such mundane crimes as tax avoidance and procuring. In the case of the former, the emperor ordered offenders to be sent to the ‘remotest coast’ of the empire, to places like Pityus and Sebastopol (on the Crimean), or generally to the region of the Black Sea (Pontus Euxinus). Pimps were to be expelled ‘far’ from Constantinople, for they were ‘destructive persons’ and ‘corrupters of public morals’.180 Significantly, from the second half of the fourth century onwards we see an unprecedented rise of lay banishment to remote frontier regions, such as that of Phronimius, the usurper Procopius’ Urban Prefect of Constantinople, whom Valentinian I banished to Chersonesus in 366, that of Valentinus, the brother-in-law of the later Praetorian Prefect Maximinus, whom the same emperor sent to Britain for treason in 369, and that of the magister militum Abundantius, who fell prey to the greed of the eunuch Eutropius in 396, and was exiled to Pityus.181 Pityus may also have been the destination for the disgraced magister militum Bessas in 554. Strikingly, this was a region where he had been militarily active not long before.182 Similar fates could befall not only those at the highest level of society. A curious case is that of the Antiochene charlatan John Isthmeos, who after having tricked the moneylenders in Antioch into loaning him large sums of money tried the same in Constantinople. While the law prescribed deportatio in insulam for fraud, Anastasius exiled him to Petra, a ‘fortress in Asia’ according to Theophanes.183 Apparently, ideals of social hygiene were so strong that they even overrode the few time-honoured security measures which had traditionally been applied in cases of political exiles, such as keeping them away from resources of agitation. Otherwise it is difficult to understand why in 369 the treasonous Valentinus would have been sent to Britain, where he was able to quickly stage a revolt with military troops stationed in that province.184 179 180

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182 183

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CTh 9.40.17 (399); see Escribano Paño (2009), 39; PLRE ii, Eutropius 1, 443. Justinian, Edict 13.11 (538–539); NJust 14.1 (535): ὡς ὀλεθρíους καὶ κοινοὺς λυμεῶνας τῆς σωϕροσύνης. On Phronimius: Ammianus Marcellinus, Roman History 26.10.8 (Loeb 642–644); PLRE i, Phronimius, 701; on Valentinus: Ammianus Marcellinus, Roman History 28.3.3 (Loeb 132); PLRE i, Valentinus 5, 935; on Abundantius: Jerome, ep. 60.16 (Labourt, vol. 3:106); Asterius, hom. 4 (PL 40:224); PLRE i, Abundantius, 5. Agathias 3.2.6–3.2.7 (ed. R. Keydell (Berlin: De Gruyter, 1967), 85). Malalas, Chronicle 16.5 (Dindorf 395); Theophanes, AM 5999 (de Boor 150): τὸ ϕρούριον τῆϛ ’Ασίαϛ. Theophanes may have confused the ancient city in Arabia with Petra on the Black Sea, see above n. 161. On Valentinus’ revolt see Ammianus Marcellinus, Roman History 28.3.4 (Loeb 132).

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Over time, however, some practices of banishment also seem to have aimed at curbing the influences of lay exiles. Such expectations at least partly underpinned the entirely novel development in late antiquity of replacing exile of lay people with forced clerical ordination.185 We first hear about such measures in the early fifth century, but they seem to have become increasingly more common during that century.186 A spectacular but also nebulous case arose in the context of the fall-out between Theodosius II and his Praetorian Prefect Flavius Taurus Seleucius Cyrus, also known as Cyrus of Panopolis, in 441. This learned man was not only a poet, but also a skilled administrator and an avid builder, so much so that his popularity aroused the envy of the emperor who dismissed him from office, allegedly on a charge of paganism that the eunuch Chrysaphius had concocted. The ensuing events are less clear. According to Malalas some months later his property was confiscated and he was made bishop in Cotyaeum in Phrygia.187 Theophanes, in turn, reported, following Priscus, that Cyrus sought the bishopric (which he placed at Smyrna, not Cotyaeum) on his own accord, to avoid punishment.188 The beginnings of this form of exile are therefore obscure, but we see it more firmly established only a few decades later, at least at the highest political level. Zeno made Marcian, the son of the former Western emperor Anthemius and husband of Zeno’s sister-in-law Leontia, a priest in Caesarea in Cappadocia or Tarsus for attempted usurpation in 479.189 Zeno’s own brother Longinus was convicted of treason after Zeno’s death, and apparently forced to become a priest in Alexandria in 492.190 In the same period, in the west, deposed emperors, who by now came in 185 186

187 188

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See Delmaire (2008) 123–124. The first known case is that of chamberlain Antiochus, who in 421 was made a priest in Constantinople or in Chalcedon, see Malalas, Chronicle 14.15 (Dindorf 361); PLRE ii, Antiochus 5, 102. Malalas, Chronicle 14.16 (Dindorf 362). On Cyrus see PLRE ii, Cyrus 7, 338–339. Theophanes, AM 5937 (de Boor 97); Priscus frg. 8 (Blockley, vol. 2:235). John of Nikiu, Chronicle 84.48–84.58 (Charles 96–97) also has Smyrna, as has Chronicon Paschale 450 (PG 92:809) whose author, however, follows Malalas’ story of Cyrus’ forced ordination. The reference to Smyrna is thrown into doubt by a passage in the Life of Daniel the Stylite 31 (transl. E. Dawes, N. Baynes (Oxford: Blackwell, 1948), 25) that Cyrus made friends with this holy man at Cotyaeum. It has also been argued that Smyrna would have been too grand a see for Cyrus’ punitive ordination, yet this conclusion relies on the assumption that it was in fact this, a public penalty, of which, as shown further below, we cannot be entirely sure; for the argument see PCBE 3:604–608. PLRE ii, Marcianus 17, 718. Evagrius, Ecclesiastical History 3.26 (SC 542:454), reported that he was first put in a monastery in Caesarea and only later, when he tried to escape, was ordained a priest in Tarsus. Theophanes, AM 5984 (de Boor 137). John of Antioch, frgm. 239.3 (Mariev 448) reported on his exile to the Thebaid, but not the ordination. See PLRE ii, Longinus, 690.

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quick succession, also seem to have been disposed of in this way. Avitus was made bishop of Placentia (Piacenza) in 456, and Glycerius bishop of Salona in 474.191 Even more numerous, and seemingly more routinely applied, are episodes of forced ordination dating to the sixth century. In 510, the patricius Apion was made a priest at Nicaea, to atone for an unknown crime, possibly for his religious leanings. His son, Herakleidas, at the same time was made a deacon at Prusa.192 Under Justinian, it was Cyzikus on the sourthern shore of the Sea of Marmara that seems to have become a major place of such forced ordinations. It had been here where the young son of Zeno’s relative Armatus was enrolled as lector among the bishop’s clergy after his father’s execution for perjury in 477/8, only later to become bishop himself.193 Under Justinian, the comes excubitorum Priscus, head of Justinian’s imperial bodyguard and an ex-consul, shared his fate and was made a cleric at Cyzikus in 529, for having insulted Theodora.194 The most famous exile at Cyzikus, however, was Justinian’s former Praetorian Prefect John the Cappadocian, who in 541 was made a priest or deacon here while a bishop called Eusebius held the see.195 There is reason to believe that the appearance of this kind of exile was intrinsically connected to legal changes of the early fifth century concerning church asylum. Some of those forced into the clerical profession had indeed sought church asylum upon signs that they might be charged with treason or that their life was endangered. This, according to Malalas and Priscus, had been the case with Cyrus of Panopolis. Also the emperor Avitus, the sixth- or seventh-century chronicler John of Antioch tells us, fled to a church after losing a battle against the magister militum Ricimer near Piacenza.196 On John the Cappadocian Procopius reported that, after having been caught in an act of treasonous conspiracy, he managed to escape and seek sanctuary at a church in Constantinople. Theophanes told the same of Priscus, the comes excubitorum. It cannot be excluded that such acts of asylum also preceded other known cases of forced clerical ordination, which were reported in more abbreviated form or gave the impression 191 192

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195 196

PLRE II, Avitus 5, 198; Glycerius 514. Theodore Lector, Ecclesiastical History, ep. 482 (GCS 53:137); Theophanes, AM 6011 (De Boor 165); Marcellinus comes, Chronicle a. 510 (MGH AA 11.2:97) simply has: Appius patricius exulatus est. See PLRE ii, Apion 2, 112; Mazza (2001) 56. Evagrius, Ecclesiastical History 3.24 (SC 542:450); Malalas, Chronicle 15.7 (Dindorf 382); Theophanes, AM 5969 (de Boor 125); see PLRE ii, Basiliscus 1, 211–212. Procopius, Secret History 16.7–16.10 (Loeb 190); Malalas, Chronicle 18.43 (Dindorf 449): he calls him an ex-notarius; Theophanes, AM 6026 (de Boor 186). See PLRE iiib, Priscus 1, 1051. Procopius, Persian War 1.25 (Loeb 248–252). On John see PLRE iiib, Ioannes 11, 634. John of Antioch, frg. 225 (Mariev 412).

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that such ordination followed an imperial decision. When the duty to intercede for those caught up in public criminal procedure was first laid down by a church council, the Council of Serdica in 343, the focus was particularly on those condemned to exile.197 It may therefore be no coincidence that the cases of forced clerical ordination proliferated after 431, the year in which an imperial law legalised church asylum, accepting clerical intercession for those accused of public crime in the process.198 Forced clerical ordinations by definition involved consent of ecclesiastical authorities and it might have been such authorities driving this innovation. In the case of Avitus, we know that Eusebius of Milan performed the ordination.199 Procopius called John the Cappadocian’s transferral into the clerical staff of Eusebius of Cyzikus a ‘sanctuary’ as well.200 This suggests that it was this bishop, or at least an ecclesiastical authority, perhaps the patriarch of Constantinople, who had negotiated the terms of the penalty. At the same time, at least by the sixth century, the emperor did not seem to have been averse to such negotiations. Procopius implied that it was Justinian’s wife Theodora, John the Cappadocian’s sworn enemy, who arranged his enrolment in the clergy, while he could have obtained an easy pardon from Justinian himself, had he not sought sanctuary. He reported a similar involvement by Theodora regarding Priscus, the imperial bodyguard also sent to Cyzikus. This was almost certainly an exaggeration, which served to overtly accusing Justinian of not being in control of his wife. In any case, it shows that the imperial court collaborated closely with bishops on this issue, seeking out those who could be trusted. In fact, Eusbius was a good friend to the imperial couple.201 Conversion of church asylum into forced ordination served late antique representations of imperial justice in many important ways. Despite the indignation of some contemporary authors (and the suspicion that the measure was, on occasion, simply an instigation to murder202), it may have been meant, and understood, as an expression of imperial clemency. Particularly becoming a bishop allowed an exile to assume a role of social recognition within the community he was compelled to live in. We rarely hear about the liturgical implications of criminals ordained priests or how they were received by their congregations, with the exception of Cyrus at 197 198 200 201 202

Council of Serdica (343–344), c. 7, Latin recension (NPNF 2.14:422); see also Washburn (2007) 278. 199 See above Chapter 3. Auctarium Prosperi Hauniensis 456 (MGH AA 9:304). Procopius, Persian War 1.25 (Loeb 248–252). On Eusebius of Cyzikus see PCBE 3:382–383. The ordination of Cyrus at Cotyaeum was, according to Malalas, Chronicle 14.16 (Dindorf 362), a veiled attempt to kill him, for the people at Cotyaeum had the habit of murdering their bishops.

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Cotyaeum. The citizens of Cotyaeum were indeed suspicious of Cyrus and his alleged pagan credentials, but he convinced them with a famous, if short speech not only of his Christianity, but of no less than his orthodoxy.203 His case shows that an exile could be accepted as a leader of a Christian community, despite his past, as long as he adopted the appropriate lifestyle. The post of cleric was also salaried and therefore provided the exile with a livelihood, although the extent of a clerical stipend depended on the wealth of the individual see. In the case of John the Cappadocian, Procopius reported, Justinian even handed him back some of his property and hence allowed a life in comparable luxury that attracted some scorn from his enemies, who would have liked to see him afflicted with poverty.204 Forced ordination, particularly to the priesthood, however also carried a moral message. Like deportation, it invariably included the confiscation of property, although property was not, apparently, automatically reassigned to the church in question. John’s and Pricus’ property was, according to Procopius, added to the public fisc under Justinian. The effects of forced ordinations on an exile’s family, and also on themselves, could be fatal if we are to believe Theophanes’ account of Zeno’s brother Longinus according to which Longinus’ wife and children had to beg after his ordination while he himself died of starvation eight years into his priesthood.205 This shows that forced ordination may also have been meant to be humiliating. Commenting on John the Cappadocian’s fate, Procopius explained that for a man who had held posts of authority in the civic sphere being a subordinate cleric, and hence part of the entourage of another man, meant a considerable step back on the social ladder, not to speak of the indignity that must have come, for a man of secular power, with the submission to the ideal of poverty, the visibility of the tonsure, the compliance with strict liturgical requirements, and often the remoteness of a provincial town.206 Finally, emperors, and particularly Justinian, may have embraced forced clerical ordination because it fulfilled expectations of Christian punishment. As Claudia Rapp has shown, ordination to the priesthood was at times represented as a second baptism in early Christian writing, which would allow sins to be purged.207 Church authorities, justifiying their intercession for those seeking church asylum and enrolling them into the 203 205 206

207

Malalas, Chronicle 14.16 (Dindorf 362). 204 On the salaries of clerics see Hall (2000) 742. Theophanes, AM 5984 (de Boor 137). Procopius, Persian War 2.30 (Loeb 554–556). See on the implications of forced clerical ordination Rapp (2005) 216. Rapp (2005) 94–95.

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clergy, could point at the spiritual benefit of this action, but so could emperors. An ulterior motivation for emperors to endorse the practice of forced ordination may, however, have been the hope that it impeded exiles’ plans to return to civic office, for this was of course precluded to clerics. Even when John the Cappadocian was eventually pardoned and recalled to Constantinople in 549 he was forced to remain a cleric.208 Such connections made between forced ordination and political security, in the sense of curbing an exile’s influences, attest to a wish by fifth- and sixth-century imperial authorities to control also lay exiles more tightly, even though the measure employed cannot be called in any way systematic, as forced ordination was driven by the chance of an offender seeking sanctuary and the will of church authorities to take up his case, not imperial choice. Furthermore, such restrictions did not always work out. Sometimes they were reviewed at opportune moments by emperors themselves. Cyrus of Panopolis was recalled from Cotyaeum by a subsequent emperor, Marcian, and seemingly shed his priesthood without difficulty or dishonour. So did the patrician Apion, who after his return from Nicaea became Praetorian Prefect under Justin in 518.209 Even more importantly, forced ordination does not seem to have been accompanied by comprehensive security measures, leaving some forced clerics to take their fate into their own hands, with seemingly wide liberty to do so. The usurper Marcian, made a priest at Caesarea by Zeno, managed to flee from what John of Antioch called his ‘guards’ (ϕρουροῦντας) and pull together an army of peasants to, once again, besiege the emperor.210 John the Cappadocian got mixed up in the murder of his bishop Eusebius, who apparently had made his life unbearable, and had to be transported to a different exile place, Antinoopolis in Egypt. While the circumstances of the case are shrouded in mystery, it is clear that John had used his close proximity to Constantinople to kindle hopes and mobilise networks for a return to his political career. None of this, however, apparently had been anticipated at the moment of his banishment to Cyzikus and it was only afterwards, at Antinoopolis that John was detained.211 208 209

210

211

Procopius, Persian War 2.30 (Loeb 554–556). Life of Daniel Stylite 31 (transl. E. Dawes, N. Baynes (Oxford: Blackwell, 1948), 25); on Apion see PLRE ii, Apion 2, 112. Theodore Lector, Ecclesiastical History ep. 419–420 (GCS 53:116); John of Antioch, frg. 234.4 (Mariev 430); Evagrius, Ecclesiastical History 3.26 (SC 542:454); Theophanes, AM 5871 (De Boor 127). Procopius, Secret History 17.40 (Loeb 210); Persian War 1.25 (Loeb 248–252). Malalas, Chronicle 18.89 (Dindorf 480–481) reported that John formed a conspiracy with the landowners at Cyzikus and killed the bishop. On John see PLRE iiib, Ioannes 11, 634.

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While John the Cappadocian was eventually placed in some sort of confinement, such tightening up of security measures and incidents of confinement were rare when compared to cases of clerical exile. At most, we hear about custody of lay exiles in their own homes, like that of the magister militum Belisarius, whom Justinian condemned to house arrest in 562 for treason, or that of Honoria, Valentinian III’s sister, discussed in the previous chapter.212 Belisarius’ house arrest was perhaps an ostentatious act of imperial clemency (he was also released after just a few months), while Honoria’s has to be seen in the peculiar context of domestic discipline of wayward women. Fortress banishment of lay people in late antiquity is only known from one particular fifth-century scenario, the series of usurpations during the troubled reign of Zeno, which was dominated by the emperor’s relationship with his magister militum Illus.213 Again, the episodes concerned almost exclusively members of the imperial family, with the exception of the patricius Pelagius, who Zeno had stripped of his property and detained for fear of usurpation. The usurper Basiliscus, Basiliscus’ sister and Zeno’s mother-in-law Verina, Verina’s friend, the Praetorian Prefect Epinicus, and Verina’s son-in-law, the usurper Marcian, were all sent at different times to fortresses in ‘Isauria’, among which the most conspicuous were the fortresses Dalisandros and Papirius.214 The role Isaurian fortresses played during the years of Zeno’s reign was intrinsically connected with the Isaurian origin of the emperor and his crony Illus, who both frequently fell back on networks among the populations of the Taurus mountains for military support and for guarding people removed from the capital. The fortresses mentioned were therefore not regular military posts, but centres of brigandage, usually out of official control, which could be mobilised for state concerns at opportune moments in time.215 Ironically, these fortresses may well have been among the private prisons discussed in the previous chapter, which gave so much grief to late Roman emperors, particularly Zeno, who knew those of his rivals from first-hand experience. The incidents of fortress banishment of imperial family members that accumulated in the years of Zeno were therefore unique and certainly not representative of lay exile in this period. 212 213 214

215

Belisarius: Malalas, Chronicle 18.141 (Dindorf 494); Theophanes, AM 6055 (de Boor 238). On Illus see PLRE ii, Illus 1, 586–590; and now Kiel-Freytag (2010) 291–301. For references see Appendix II. On Papirius see Gottwald (1936) 86–100; on Dalisandros see Shaw (1990) 245. On the relationship between Isaurian ‘bandits’ and imperial circles in the second half of the fifth century see Shaw (1990) 248–255.

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Overall, the rarity of episodes of imprisonment of lay exiles, when compared with that of clerical exile may reflect that the practice was seen as controversial and therefore, if possible, avoided, even where authorities agreed that a certain level of control was warranted. Procopius, who reported with glee in the Persian Wars on the exile of John the Cappadocian to Antinoopolis, in characteristic fashion turned the same into an accusation against Theodora and Justinian in his Secret History and complained that John was ‘shut up’ (καθεῖρξε) in the Egyptian city. Even a measure such as house arrest, which this probably was, could be used to embellish an invective against an emperor, for it was dangerously close to keeping a private prison.216 Justinian’s law of 529 prohibiting the confinement of exiles shows, however, that it was a problematic issue in late antiquity also for clerical exiles, if we can connect it to the treatment of Miaphysites in Egypt in the 520s. As we shall see in the next chapter, the links that victims of such confinement drew between their treatment and imprisonment, as well as the perception of imprisonment as abuse, based both on ideas of honour in Roman culture and on the role imprisonment played in the fashioning of the Christian past, may go some way in explaining what lay behind legal prohibitions of the practice. 216

Procopius, Secret History 17.40 (Loeb 210). Also see Procopius, Secret History 16.16–16.17 (Loeb 192–194), which accused the empress Theodora of imprisoning exiles, which is perhaps a reference to John the Cappadocian’s fate.

chapter 8

Exile, prison and the Christian imagination

The previous chapter investigated the rising use of confinement in the context of legal exile. We will now turn to the ways how this confinement was experienced by those who suffered it. As we shall see, the surviving records give us more insight into the role such experiences played for the articulation of certain literary strategies than into actualities of confinement. Nonetheless, these literary strategies demand our attention as they attest the, compared to most classical sources, ambiguous image of the late Roman prison in Christian writing, ranging from an icon of persecution to a warranty for the sincerity of ascetic behaviour.

Realities of imprisoned exiles There are few sources which describe what life was like for exiles held in confinement. Archaeological research on the late Roman army may help us to conceptualise experiences of exiles sent to fortresses, even if only on a very general level. Late Roman military fortresses were often forbidding strongholds, with thick, towered walls inside which the barracks crowded together, a central square-shaped courtyard, and accessible only via one gate. This invokes an image of a panoptic layout, fit to create a claustrophobic feeling.1 Literary sources also provide some information. The fortress of Papirius, where Zeno confined the usurper Marcian – though perhaps a less formal establishment – was in the words of the early sixth-century chronicler Pseudo-Joshua Stylite naturally difficult to access and heavily fortified by human hands, with only one road leading up to it, so narrow that it had to be walked on in single file. The fortress was hence ‘amazingly secure’ and certainly chosen as Marcian’s residence for this purpose.2 1 2

Southern, Ramsey Dixon (1996) 133–139. The Chronicle of Pseudo-Joshua Stylite 17 (transl. F. R. Trombley, J. W. Watt (Liverpool University Press, 2011) 15–16). He describes the fortress with reference to the final siege of Illus.

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We do not know, however, where exiles might have resided within a military compound and whether they were, in addition to being in the fort, also locked up. This is hardly imaginable in the case of, for example, Theodosius of Alexandria, who in 536 came to the fortress of Derkos in Thrace with allegedly three-hundred of his clerics.3 Of course, fortresses may have had prisons for those who had violated military rules, although again we can only speculate about this aspect of military discipline.4 Victor of Tunnuna and Theodore of Cebarsussi were apparently held in one such carcer after they had been exiled to Alexandria in 555, the carcer of the castellum Diocletiani, which may refer to the legionary camp of Nicopolis outside the city.5 Such carceres may also have been the spaces where soldiers held members of the public on request from the local population or to extort debt, a practice, as we have seen in Chapter 5, at the same time widespread and legally prohibited. The castrum at Dionysias in the Fayyum in the Upper Thebaid (now Quasr Qarûn), where the praefectus alae Abinnaeus was commander in the mid-fourth century, was exactly one of these Roman forts built at the time of Diocletian, a small, bulky and heavily walled bastion, overlooked by towers, and closable by one wooden gate. It is no surprise, then, that the surrounding villagers thought this an appropriate space to lock up their offenders and incalcitrant debtors properly.6 We can imagine that those who wanted to secure unruly exiles thought the same. Where exiles were sent to quarries or mining complexes, they were perhaps housed in the workmen’s barracks, rather than with the soldiers. The only archaeological evidence we may have of such barracks originates from the second-century yellow marble quarries of Simitthus in Africa proconsularis (mod. Chemtou). While it cannot be entirely verified that the stone building excavated at the centre of a walled site was supposed to hold slaves and convicts to hard labour, its layout at least allows the speculation. This was a heavily secured complex, where people could be segregated into six different compartments, each with its separate entrance and own set of guards, drawn, presumably, from the military unit dispatched to control the quarry. At the same time, the building had latrines, with barred gutters, and a bath house, which suggests the 3 4 5

6

John of Ephesus, Life of John of Hephaistopolis (PO 18:528–529). On military prisons see Krause (1996) 252 and above Chapter 5. Victor of Tunnuna, Chronicle ann. 555.2 (MGH AA 11.2:204). On Nicopolis see Haas (1997) 31–32. Note, however, also the use of the term castellum for fortified settlements in late antiquity, see above pp. 228–229. On the fort see Bell (1962) 19–20.

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authorities’ interest in inmates’ hygiene, for fear of disease and contagion.7 Such spaces of course would have allowed for a much more systematic surveillance of exiles. It is, however, not certain whether the situation at Simitthus, a site that was abandoned in the third century, can be taken as representative for all imperial mines and quarries in late antiquity or for that matter at any time of the Roman empire. At Phaino, for example, although we know from the church historian Eusebius of Caesarea, who commented on Christians sent here during the early fourth-century persecutions, that there must have been soldiers under supervision of a dux around and that there were barracks for workers, these by no means compare to the prison-like conditions at Simitthus. There were separate settlements as well, which at the time of the Great Persecution housed those Christians too old or unable to work because they had been maimed prior to their dispatch to the mines. They were free enough to celebrate mass and construct a church, but also seem to have segregated among themselves, as in 308–9 between the followers of Meletius of Lycopolis and those of Peter of Alexandria.8 The diversity of housing at places of hard labour means, of course, that we cannot postulate isolation of all exiles sent to such ‘fortresses’. It is even more difficult to reconstruct living circumstances of those exiles shut up in less well defined places. Since such confinement was often not in public prisons but in buildings of a non-civic nature, such as inns, private houses or places belonging to the church, the ways exiles were held may have been endless. Still, similar to those in fortresses, exiles in confinement themselves as well as later commentators complained about cramped or underground space, cruel and ubiquitous guards, darkness, foul air, hunger and sickness as a result of their confinement. The clearest example of such depiction derives from Eusebius of Vercelli’s letter from his place of exile at Scythopolis to his clergy and congregation back home in Italy.9 As we have seen in the previous chapter, Constantius II had sent the bishop of Vercelli to the see of his clerical ally Patrophilus in 355 for not subscribing to the creed of Sirmium and the condemnation of Athanasius of Alexandria at the Council of Milan. At Scythopolis, Eusebius and his companions got into trouble with Patrophilus, which, at some point, led to his detention. 7 8

9

Mackensen (2005) 3–8, 88, 111; Hirt (2010) 25, 185. Millar (1984) 140–141; Mattingly (2011) 187–191. On the Christian community at Phaino and their liberties see Eusebius of Caesarea, de Mart. Pal. 13.1–13.10 (SC 55:170–173); Epiphanius, Panarion 68.3.8 (GCS 25:143). Eusebius of Vercelli, ep. 2 (CC 9:104–109).

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In this context, Eusebius described three or possibly even four different types of confinement. Firstly, there were his own periods of detention in perhaps three different places, all of which were not in a public prison but apparently became increasingly more restrictive. Eusebius explained that he had already been quasi-imprisoned from the beginning of his stay in Scythopolis, in a hospitium (possibly an inn), ‘from which I did not leave except due to your violence’ as he wrote to bishop Patrophilus (ep. 2.4: e quo numquam nisi vestra violentia egressus sum). In a second hospitium, he was then even locked up alone ‘in one room’ (cella; ep. 2.4). Finally, he was taken to an unnamed place and confined under ‘very strict guard’ (arctiori custodia recludunt). Secondly, there were his clerics, who were locked up (includunt) elsewhere (ep. 2.6), but it remains unclear whether in the public prison. The prison (carcer) was certainly the place those who came to visit Eusebius were sent. Finally, Christian virgins who also came to his assistance were placed in custodia publica, which may mean the public prison, although one might also imagine that, for reasons of modesty, they were put under some sort of house arrest (ep. 2.6). What complicates our understanding of Eusebius’ experiences under house arrest and his followers’ in the public prison is, however, that Eusebius repeatedly conflated both. To begin with, he called Patrophilus his ‘jailer’ (custos; ep. 2.4 and 11), and those who held him ‘hangmen’ (carnifices, ep. 2.3), with all the connotations of formal and informal violence in the prison that this entailed.10 Eusebius also used the verb recludere indiscriminately for the act of inclusion in the carcer or some other official place of detention and at his place of confinement (epp. 2.3, 6, 8) and called both custodia (epp. 2.6, 8, 9). He further employed the verb retrudere (ep. 2.4) to describe what had happened to him, which, as we have seen, in Latin literature was frequently used to denote being thrown underground, into the darkness of the inner prison.11 Most importantly, however, he converged his situation in the hospitium and that of his companions in the public carcer into one, when he claimed that they were all prevented from receiving visitors and, hence, exposed to starvation even though everyone knew that even the worst criminals were usually allowed to receive charity from outside the carcer (ep. 2.7). Also other reports on confined exiles emphasised the prison-like conditions, such as darkness and starvation. For example, when Athanasius 10

11

For the customary association of prison staff and violence see Krause (1996) 291–295. For the association of the ‘hangman’ with the prison see Clark, G. (2006) 137–146. See above Chapters 5 and 7.

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reported on the exile of Paul of Constantinople in 350, he did not fail to mention that the bishop was first put in chains and sent to Singara in Mesopotamia, where Constantius II probably resided at the time. Constantius then most likely took him to Emesa, from where he was sent to Cucusus. At Cucusus, Paul was locked away . . . in a very confined and dark place, and left to perish of hunger, and when after six days they went in and found him still alive, they immediately set upon the man, and strangled him.12

Equally dramatic was the story Philoxenus of Hierapolis told some faithful monks from the monastery of Senoum near Edessa in a letter sent from his exile at Gangra or Philoppopolis in 521. Although he was allowed to keep his companions with him, they were all locked up in a xenodochium, in a very small room without any ventilation, perhaps above a bath or a kitchen, which was so full of fumes that Philoxenus feared for his companions’ eyesight. They were also constantly guarded. The perpetrator of this treatment, the bishop of the city, also allegedly prevented Philoxenus’ access to books.13 Victor of Tunnuna, who described the exile experiences of a whole string of ‘orthodox’ bishops during the religious turmoils of the sixth century, was particularly fond of the terminology of (de)trusio, as such evoking an image of underground confinement. For example, the banished Elias of Jerusalem was ‘thrown into’ (truditur) the castellum Paraxenense in 516, and he himself into the carcer of the castellum Diocletiani in Alexandria.14 As Daniel Washburn has pointed out correctly, how exiles experienced their treatment was of course subjective, and hence it is hard to measure their degree of suffering.15 It may of course be the case that exiles in confinement did have to endure isolation, darkness, maltreatment, or hunger. Yet, these were also common characteristics of the public prison in the Roman mindset, particularly its inner, subterranean space and 12

13

14

15

Athanasius, Arian History 7 (PG 25:701): ὡϛ Παῦλος ἀποκλεισθεὶϛ παρ’έκείνων εἰϛ τόπον τινὰ βραχύτατον καὶ σκοτεινὸν, ἀϕείθη λιμῶ̣ διαϕθαρῆναι· εἶτα μεθ’ἡμέραϛ ἔξ, ὡϛ εἰσελθόντεϛ εὖρον αὐτὸν ἔτι πνέοντα, λοιπὸν ἐπελθόντεϛ ἀπέπνιξαν τὸν ἄνθρωπον· καὶ οὕτω τέλοϛ ἔσχε τοῦ βίου τούτου. On the circumstances of the various legs of Paul’s journey to Cucusus see Barnes (1993) 216–217. Paul’s first exile had been to Thessalonika, his home town, most likely in 342, from where he fled to Rome. Philoxenus of Hierapolis, Letter to the Monks at Senoum (CSCO 232. Script. Syr. 99:76, 77–78); see also Zacharias, Ecclesiastical History 8.5 (CSCO 84:77–82, 88:52–57). On the localisation of the monastery at Senoum see A. Halleux, ‘Introduction’ (CSCO 232. Script. Syr. 99:vi–vii). Victor of Tunnuna, Chronicle ann. 509 (MGH AA 11.2:194); Victor of Tunnuna, Chronicle ann. 555.2 (MGH AA 11.2:204). Washburn (2007) 234.

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would have been easily recognised as such by any contemporary reader.16 There is reason to believe, therefore, that some aspects of these confinement stories, in particular that of total seclusion, served rhetorical ends. In this regard, it is important to bear in mind the contexts in which exiles wrote about their experiences. As Wendy Mayer has shown with reference to John Chrysostom at Cucusus, late antique letters from exile and their recourse to literary conventions in subtle ways served to manipulate an audience.17 In the case of Eusebius of Vercelli, his letter was both meant to encourage his community in Italy to remain steadfast in their resistance against the creed of Sirmium and part of a wider denunciation of Constantius and the bishops who supported him as un-Christian, which also Eusebius’ fellow exile Lucifer of Cagliari engaged in.18 Furthermore, as we shall see, his letter was also an attempt to cement his authority as the bishop of Vercelli in absentia. Philoxenus of Hierapolis, in turn, wrote his letter to the monks at Senoum to fortify them in their faith, which clearly he considered not as strong as it could be.19 Both audiences, the letter writers might have thought, would have responded to a pointed description of suffering and abuse of the faithful, with the prison at its centre. The fact that imprisoned exiles could write letters in any case somewhat undermines the image of isolation, for the practice of ancient epistolography demanded human contact in the form of scribes and messengers.20 In both instances of imprisonment after Eusebius had been taken from his first hospitium, he had the opportunity to write, first a libellus to Patrophilus announcing his hunger strike, of which he was also able to take a copy, and then the letter to his Italian supporters, in which he cited from this copy. During his second period of confinement, Eusebius also had a presbyter with him and managed to send off his letter. The same lack of isolation is true for Philoxenus, whose letter to Senoum was a response to an earlier epistle sent to him by the monks, which demonstrates that he was able to receive messages. Also those interned in fortresses seem to have been able to receive visitors. The anchorite Hilarion was able to visit the bishops Dracontius and Philo on his journey through the Egyptian desert around 360.21 The Miaphysite bishops John of Hephaistopolis and Theodosius of Alexandria, held with three-hundred of Theodosius’ clerics at the fortress of Derkos in Thrace after 536, also attracted a number of visitors, including 16 17 19 20 21

For the topoi on the Roman prison see Neri (1998) 456–464; Huntzinger (2004) 25; Pavón (2004). 18 See Mayer (2006) 254. Washburn (2007) 167–168. On Lucifer of Cagliari see below. A. Halleux, ‘Introduction’ (CSCO 232. Script. Syr. 99:xii). Washburn (2009) 749, with reference to Eusebius of Vercelli. Jerome, Life of Hilarion 20 (SC 508:268).

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John of Ephesus. John of Hephaistopolis was even allowed to leave to see doctors in Constantinople after he had feigned to have fallen ill. He went to the empress, who assigned him residence in the imperial palace, where he was able to make ordinations, and later in an imperial villa outside the city. In his case, the walls of the fortress were hence spectacularly permeable.22 When the Palestinian monastic leader Sabas visited Elias of Jerusalem in Aila, where the count of Palestine had banished him in 516 for not entering in communion with Severus of Antioch, the old bishop was able to follow a strict ascetic routine, with fixed times for prayer, sleep and meals. If he was held in Aila in a fortress there must have been little effort to suppress his customary lifestyle or align it with military discipline.23 By calling Elias’ fate (de)trusio, Victor therefore certainly intended to throw into relief the injustice of Elias’ exile conditions. His aim, as that of Athanasius of Alexandria’s in the case of Paul of Constantinople at Cucusus, was to paint a picture of persecution. As we have argued in the previous chapter, from the perspective of authorities, be this the emperor, imperial magistrates, provincial governors or, indeed, local bishops, fortress banishment or confinement in private spaces must have also been an attempt to take note of an exile’s dignity and status, upholding the impression that this was a sort of honourable house arrest. Yet, the texts studies in this chapter show that detention of exiles – wherever this was, with the exception, perhaps, of their own homes – always had the air of a measure unsuitable for persons of honour, and links to the public prison were drawn easily. It is in this context that we need to interpret the accusation of Eusebius of Vercelli levelled at bishop Patrophilus that his treatment was against the ius publicum.24 It is reminiscent of the urban prefect Symmachus’ indignation in 384, described in Chapter 5, about the custodia militaris of the two senators Campanus and Hyginus at Rome. To Symmachus’ mind, Campanus and Hyginus should have been hosted by a person of the same social status or held in their own homes, in custodia libera, not put in care of a person lower in the social hierarchy than themselves.25 For the matron Hesychia, who the vicarius urbis Romae Maximinus according to Ammianus Marcellinus put into the care of an apparitor in 375/6, this was such a shocking experience that she chose to commit suicide by 22 23

24 25

John of Ephesus, Life of John of Hephaistopolis (PO 18:530–533). Cyril of Scythopolis, Life of St Sabas 56, 60 (transl. R. M. Price (Kalamazoo, Mich.: Cistercian Publications, 1991), 160, 170–171); Victor of Tunnuna, Chronicle 509 (MGH AA 11.2:194). Eusebius of Vercelli, ep. 2.4 (CC 9:106). Symmachus, Relatio 49.2 (Barrow 234); Neri (1998) 429.

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suffocating herself with a pillow.26 Ammianus, like Eusebius of Vercelli, probably over-dramatised the event to underline the abusive character of Maximinus’ government, and underrepresented Maximinus’ possible aim to protect Hesychia from the public prison. On the rare occasions that exiled senators of the early empire had been interned in private houses in Rome, rather than being sent to an island, it had caused similar outrage. These incidents happened during the reign of Tiberius (14–37 ad) and were described as equal to the death penalty, a ‘terror’ (ϕόβοϛ), as Cassius Dio explained, accompanied by isolation and starvation.27 While custodia militaris and exile in confinement were technically different legal institutions, there were strong literary conventions to associate both with prison and the abuse of public power. What is more, however, Eusebius also accused Patrophilus of having infringed not only the ius publicum, but also the ius divinum.28 Here we witness a new development in the conceptualisation of the prison as a place of abuse that derived not only from the traditions of Roman social rank and honour, but from the Christian past and from Christian scripture. It is these images of the prison and its impact on exile experiences that we will study in the remainder of this chapter.

The memory of persecution The motivation for the heavy emphasis on confinement both in letters by Christian exiles themselves and in narratives about exiles lies in the intense and varied relationship Christians had with the prison. To start with, imprisonment was an iconic experience of the period of persecution enshrined in influential hagiographic writing. The Acts of the Christian Martyrs, many of which originated from a nucleus of authentic court records and eye-witness accounts, fixed the phases of the martyr’s journey towards fulfilment of their faith as imprisonment, interlocution with the civic judge and execution. Within this structure, the prison could become variably a place of community, of divine visions or of torture and death, particularly in later literary development of the stories as continuation of 26 27

28

Ammianus Marcellinus, Roman History 28.1.47 (Loeb 114). It is difficult, also due to the literary stylisation, to establish Tiberius’ intentions of replacing exile on an island with domestic internment. The cases concern Iunius Gallio in 32 ad (Tacitus, Annals 6.3 (ed. H. Heubner (Stuttgart, Leipzig: Teubner, 1994), 182); Cass. Dio, Roman History 58.18.4 (Loeb 232) and Asinius Gallus in 30 ad (Cass. Dio 58.3.4–58.3.5 (Loeb 192)); on these cases see Krause (1996) 187; Pavón Torrejón (2003) 204; Stini (2011) 128. Eusebius juxtaposes the ius publicum and the ius divinum at ep. 2.4 (CC 9:106).

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biblical illustrations of sanctity.29 These motifs reappear in amended forms in post-constantinian examples of fictional martyr narratives. For example, the so-called Gesta martyrum, a cycle of over one-hundred anonymous martyr stories from the city of Rome, written in the fifth, sixth and seventh centuries, amplified the scenes of suffering and conversion in the prison with fantastic details of miracles that betray the nature of these texts as devotional and edifying literature.30 Graphic descriptions of suffering in the prison were a crucial element in this literary construction of martyrdom. The Gesta often included as elements of suffering being kept in dark places and exposed to smoke, heat and damp, which vividly echoes Philoxenus of Hierapolis’ description of his imprisonment at Gangra or Philippopolis.31 Exposure to smoke and heat indeed may have been a common form of torture in late antiquity and would have therefore increased the readers’ feeling of the stories’ authenticity.32 Significantly, in the Gesta, custodia militaris, custody at the house of a soldier or imperial official, already discussed in Chapter 5, featured frequently and usually concerned members of the senatorial aristocracy. For example, in the Passion of Hermes, recounting the life of the early second-century bishop Alexander and the urban prefect Hermes, the latter was confined to the house of the tribune Quirinus at the behest of the comes utriusque militaris Aurelian, allegedly sent to Rome to persecute Christians at the time of Hadrian.33 The same Aurelian also had the bishop Alexander placed in the public prison. This distinction between the urban prefect in custodia militaris and the bishop in the prison perhaps reflects the author’s observation of contemporary imprisonment policies based on different social status, as well as his awareness that for a successor of the apostle Peter the public prison was a more fitting place of martyrdom. Nonetheless, Hermes’ house arrest was also styled as a form of imprisonment. He was held in a small room 29

30

31

32 33

Particularly vivid descriptions of suffering in the prison can be found in The Martyrs of Lyon 27; The Letter of Phileas 9; and of course the Martyrdom of Perpetua and Felicita (Musurillo:70, 322 and 106–131). See Musurillo’s introduction for assessment of the Acts’ authenticity. On the gesta martyrum, their literary character and particularly the difficulties of their dating see Pilsworth (2000) 309–324. See e.g. Passion of Agapitus (AASS Aug. iii:532–537); Passion of Rufina and Secunda 27, 31–32 (ed. B. Mombritius, (New York: Hildesheim, 1978), vol. 2, 444–445); Passion of Caecilia 31 (ed. H. Delehaye (Brussels: Société des Bollandistes, 1936), 194–220). On Roman techniques of torture see Thür (1972) 101–141. Passion of Hermes 4–5 (AASS Mai I, 371–3). The author may have got confused about correct terminology here, for such a rank did not exist in the late Roman army. See for further incidents of custodia militaris in the gesta martyrum: Passion of Anastasia 3 (ed. H. Delehaye (Brussels: Société des Bollandistes, 1936), 221–249); Passion of Sebastian 24 (AASS Ian ii, 265–278).

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(cubiculum) and in chains (in vinculis).34 The Gesta martyrum are certainly too tendentious to paint an objective picture of conditions under the custodia militaris. What they draw on is the conventional proximity of house arrest under guard to a form of abuse that allowed styling those who suffered it as martyrs. The same can be observed in another story from the city of Rome, of the priest Eusebius, who experienced persecution for his steadfastness in the Catholic faith by none other than Constantius, after bishop Liberius’ recall from exile in 358. Eusebius the priest was shut in a small room (cubiculum), perhaps in his own home, and starved to death. This story perhaps reworked Eusebius of Vercelli’s experience for a much later, Roman audience, although this is purely speculative.35 Given this role prison played in Christian memory, it is not surprising that accusations of clerics solliciting imprisonment of their opponents from the state authorities (often not unfounded, as we have seen in Chapter 5) played a substantial role in drawing lines between good and bad behaviour during the religious conflicts of the post-persecution era. In a particularly telling example, at the Council of Tyre in 335 Athanasius of Alexandria was charged, among others, of having falsely denounced a priest of casting stones at the statue of the emperor, a case of treason, as such bringing about the priest’s imprisonment, despite his orthodoxy and his rank.36 Athanasius, in turn, did not hesitate to blame his opponent, George of Alexandria, of assisting in the imprisonment of Christian virgins during Holy Week, clearly emphasising the outrage of such behaviour at a time of the year reserved for mercy and forgiveness.37 Similar stories circulated about George’s ‘Arian’ successor, Lucius, when he became bishop of Alexandria for the second time in 373. With the help of the prefect of Egypt Palladius and the comes sacrarum largitionum Magnus, he had his Nicene opponent Peter and nineteen of his priests and deacons imprisoned. Theodoret of Cyrus gave a glowing account of the latters’ resoluteness of mind, who, rather than renouncing their faith under torture, became ‘Christ’s athletes’ and a radiant spectacle of endurance to everyone

34

35 36 37

On the cubiculum in the gesta, often a place of miracle, see Sessa (2007) 171–204. Another saint held in vinculis was Chrysogonus in the Passion of Anastasia (see above p. 161). Passion of the Roman presbyter Eusebius 6 (AASS Aug. iii, 166–167). Sozomen, Ecclesiastical History, 2.25 (SC 306:336). Athanasius, de fuga 6 (SC 56:139–140); Sozomen, Ecclesiastical History 4.10 (SC 418:282) also reported that George imprisoned ‘many men and women’. Among the long list of charges against John Chrysostom at the ‘Synod of the Oak’ in 403 were also imprisonment of monks and clerics, see Kelly, J. N. D. (1995) 299–301.

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in the city.38 In the general harassment of his supporters after John Chrysostom’s second deposition in 404, so Palladius reported, many were imprisoned, including some high-standing matrons, who had their veils snatched from them and their earrings torn from their ears. Those crowded in the city’s prisons took to singing hymns, turning the prisons into churches, while the churches themselves had become places of torture.39 It was hence on the persecutors’ own turf that their purposes were defeated, just as it had in the age of the martyrs. Eusebius of Vercelli’s accusations in his letter to his community in Italy neatly fall into this rhetorical strategy of establishing a link between the persecutor of Christians and the persecutor of the orthodox, exemplified by their use of the prison. He wrote: See, holiest brethren, if it isn’t persecution when we who guard the catholic faith suffer these things!40

Eusebius’ primary literary aim was, of course, to defame Patrophilus. Yet, for Eusebius, this strategy also paid off in the long run. He was, as we know from his epitaph in the church of Vercelli, venerated as a martyr in his home city from at least the sixth century on, even though he had not died in exile and had returned to Vercelli in 362 after having been recalled by Julian. The epitaph explained that Eusebius had attained the status of martyr on account of the fact that he had been steadfast in his faith despite the suffering he had experienced in exile. An epitaph from the same place, which was slightly earlier, commemorated Eusebius’ successor, a bishop Honoratus, who had apparently been one of Eusebius’ clerical companions in exile, and had shared, as the epitaph put it, his suffering in prison (carcer). Eusebius’ letter may have played a substantial role in his later fashioning as a martyr.41 A similar route from imprisonment during exile to sanctity can be observed in the case of Philoxenus of Hierapolis. While it is unclear whether he died during his stay at Gangra or Philippopolis, the details of his exile, which he so vividly described in his letter to his monastic 38

39 40

41

Sokrates, Ecclesiastical History 4.21–4.22 (SC 505:78–80); Theodoret, Ecclesiastical History 4.20–4.21 (GCS 44:246–247). Peter’s prison cannot have been overly secure, as he managed to escape and go to Rome. Palladius, Life of John 10 (SC 341:200–204). Eusebius of Vercelli, ep. 2.7 (CC 9:108): videte, sanctissimi fratres, si non est persecutio, dum haec patimur qui fidem catholicam custodimus (Washburn’s translation, slightly modified). See Flower (2013) 155–162, who styles Eusebius’ writing ‘auto-hagiography’. CIL 5.6723; CIL 5.6722: exilii poenas et carceris iste subivit; see Vallejo Girvés (2007b) 1477–1482, who lists previous bibliography at n. 24 on the context of dating. See on Eusebius’ transformation from confessor to martyr also Blanchard (2008) 248–249.

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supporters, became the backbone of a narrative on his life preserved in a fourteenth-century Syriac manuscript. This vita styled him as a martyr who died through purposeful suffocation in confinement above a bath, after five years of incarceration and torture.42 Also Paul of Constantinople, who had allegedly been strangled in the confined room he had been held in at Cucusus, quickly became regarded as a martyr at Constantinople.43 Paul had, of course, died in exile, but the spectacular form of his banishment may have helped in boosting the cult around him. In the case of Eusebius and Philoxenus, the imprisonment aspect of their experience was most certainly recognised by later audiences of their letters as the crucial element of their suffering. It has been noted that in the era of the late antique doctrinal conflicts, representations of exile, the penalty par excellence for dissident clerics in the post-constantinian era, served to connect the experience of postconstantinian Christians to the heroic age of early Christian persecution. Christian factions competed with one another to claim this past as their own. ‘Martyrising’ the exile of their leaders was part of this strategy. Constructing exile as martyrdom and turning contemporary Christian opponents into persecutors was one of the ways in which late antique Christians overcame the ‘identity crisis’ after the legalisation of their faith, as it provided both continuity and created a new sense of community.44 Yet, although it connected to concepts of asceticism as we shall see below, late antique people knew that exile was only the third-best way to style a martyr. The best-case scenario was, of course, for a martyr to die, but failing that, imprisonment fitted the bill. Even though in late antiquity exile was remembered as a factor in early Christian persecution, and even though expulsions of Christians from cities had been ordered by thirdcentury imperial edicts and in fact may have been a widespread measure of earlier Roman authorities against Christians, incidents of exile paled into insignificance against the memory of Christians’ imprisonment.45 One reason for this may have been that the connection between prison and 42

43

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45

Mingana (1920) 155–156. Zacharias, Ecclesiastical History 8.5 (CSCO 84:77–82, 88:52–57) implied that his death had been deliberate. Sozomen, Ecclesiastical History 7.10.4 (GCS 50:313) reported about the translation of his relics back to the capital from Cucusus in 381, although he also noted that at his time many people were ignorant about who Paul actually had been. Washburn (2007) 326–337, who rightly develops the ‘identity crisis’ model postulated by Markus (1990) 24, with the aspect of the ‘martyrization’ of exile. On episodes of exile during Christian persecutions see e.g. Eusebius of Caesarea, Ecclesiastical History, 3.18, 3.20, 3.23 (all on the apostle John’s exile on Patmos); 9.6, 9.9.2 (SC 31:121–122, 124, 126; SC 55:51, 65). See Rocovich (2004) 180–181; Washburn (2007) 118–119, 165–166.

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persecution was more deeply steeped in Scripture, as both Jesus and his apostles had suffered incarceration. An illuminating example of the hierarchy that early Christian ideas of authority established between exile and imprisonment is that of Cyprian of Carthage. He had withdrawn into voluntary exile in 350, after the edict of Decius, yet became concerned that he may lose ground against those who had been incarcerated for their faith on this occasion, but survived, the so-called confessors, whose prison became the site of instruction and consolation for the persecuted Christians of Carthage. It was the confessors who, on account of their superior suffering on the model of Christ and the apostles, were considered the patrons of the people. To some extent in order to exonerate himself (and other bishops who had been banished under the edict) Cyprian took pain to extend the status of martyr and confessor to those who had undergone flight and exile, which would have to have a strong influence on late antique discourses around exile and martyrdom. Yet, he could not on the whole mask the importance of physical suffering in the prison.46 The memory of persecution hence meant that imprisonment, the prelude to death, fulfilled the image of martyrdom more powerfully than exile alone. While exile routinely became represented as martyrdom from the fourth century on47, those exiled who were also imprisoned in some form had a gold-plated route to sanctity. It is no surprise, then, that such incidents were capitalised upon. Lucifer of Cagliari, Eusebius of Vercelli’s fellow exile, did not stop accusing Constantius of having exiled and thrown bishops into prison after the Council of Milan. In Ad Constantium Imperatorem, for example, he wrote: Because of your wretched council we are in exile (exilium), we die in prison (carcer), we are deprived of sunlight, we are confined in the dark and held in immoderate custody (reclusi in tenebras custodimur ingenti custodia). No one is allowed to visit us.48

This passage may have been meant to give the impression that Constantius had ordered imprisonment of bishops as an alternative to exile after the Council of Milan. It was not the only time that Lucifer listed exile, prison and also mines as mere variations of the same phenomenon: Constantius’ persecution of the orthodox.49 While we know that all these were imposed 46 47

48 49

Brent (2010) 10, and his Chapter 6 on the confessors. See e.g. Athanasius, de fuga 23 (SC 56:161); Hilary of Poitiers, Coll. Antiar. Paris, bvii.2 (CSEL 65:162–164). Lucifer of Cagliari, Ad Constantium Imperatorem liber unus 5 (CSEL 14:12). Lucifer of Cagliari, de reg. Apost. 7 (CC 8:151–152): on persecution in Alexandria; Lucifer mentions exile, prison, mines and deaths as its expression, also for bishops; de non parc. 32 (CC 8:256): lists

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on those who got caught up in the troubles after the Council of Milan – the authorities in Egypt sent individuals, although not bishops, to mines; Eusebius of Vercelli ended up in some form of confinement – Lucifer merged it all into one grand experience to underline the immense suffering of the rightful, although Constantius’ own action had been, for all that we know, only the pronouncement of banishment. Also later would-be martyrs would make sure that when they were exiled they also mentioned that they had suffered in the carcer in the same instance; a useful trick, as Jerome ironically pointed out in the case of his ascetic rival Rufinus and his stories about his persecution, imprisonment and exile in Egypt at the time of Lucius the ‘Arian’.50

Christian charity Richard Flower has shown recently how Eusebius of Vercelli’s letter to his community in Italy, contrary to the writings of other exiles after the Council of Milan, was less an accusation of the emperor directly than an outright criticism of Patrophilus of Scythopolis’ behaviour as a bishop.51 What happened at Scythopolis and might have happened in other places where banished bishops resided at an opponent’s see was competition between two men aspiring to control a population that had only recently converted to Christianity, if at all.52 Furthermore, it was also important to Eusebius to still stake his claim to the see of Vercelli by emphasising his rightful behaviour as a Christian bishop, not only with respect to his orthodoxy but also to his civic leadership. Perhaps even more significant than his comparison of Patrophilus to pagan persecutors, therefore, was Eusebius of Vercelli’s attempt to depict the bishop of Scythopolis as far exceeding even the latters’ evil deeds. One of the most scathing accusations Eusebius of Vercelli levelled at his ‘jailer’ Patrophilus was his alleged

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torquere, proscribere, deportare, recludere carcere, trucidare, varie disperdere, interficere as forms of Constantius’ persecution; de Athanasio 1.42 (CC 8:73): carceres, metalla, exilia cannot even absorb all those condemned by Constantius; de Athanasio 2.14 (CC 8:99): proscribas, torqueas, deportes, mittas in carcerem interficiasque; Constantius is like Herod who put the apostles in prison (Acts of the Apostles 12.1–12.7); de Athanasio 2.21 (CC 8:113): Constantius torquet, proscribit, deportat, mittit in carcerem, deducit ad exilia, conlocat in metalla; De non conveniendo cum haereticis 5 (CC 8:173): propterea in exilio sumus, propterea in carcere necamur, propterea nobis solis prohibetur conspectus. Jerome, ap. adv. Ruf. 2.3 (CC 79:35): ‘I blush at this manifest lie, as if imprisonments and exiles are imposed without the decrees of judges’ (quasi carceres et exilia absque iudicum sententiis irrogentur); in response to Rufinus, Apology 2: ‘I was at that time sojourning in the church of Alexandria and underwent imprisonment and exile which was then the penalty of faithfulness’ (transl. NPNF 2.3:430). Flower (2013) 156. 52 Washburn (2009) 736.

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prohibition of visitors and food provisions both to Eusebius himself in his hospitium and to his companions in the carcer: Consider further whether this is not even far worse than that perpetrated by those who served idols! Though they sent people to prison, at least they did not prohibit their supporters from coming to them . . . Even judges and torturers do not deny imprisoned robbers the possibility to see their relations: to us and our supporters it is prohibited and in order that the devout brothers do not go they are not only kept away from the hospitium where we are held, but are also deterred by threats that they do not go to the prison . . .53

Eusebius here touched on a crucial aspect of the Roman prison. While prisoners in principle received official rations of food, it was widely accepted that their meagre provisions were to be topped up by friends and family from outside.54 By denying this, Patrophilus hence increased the suffering of the prisoners, including Eusebius, beyond belief. Nearly two-hundred years later also Philoxenus of Hierapolis, in his letter to the monks at Senoum, emphasised his and his companions’ isolation from the world outside. No one was allowed to speak to them. The guards would see to this. When they asked to be transferred to the more comfortable surroundings of the public prison, even at the risk that they would have to reside with criminals, the bishop declined, for he hated Philoxenus even more than the public authorities.55 In this way, Philoxenus argued, his house arrest was actually worse than the public prison as it foreclosed the level of community that came with the latter. For Eusebius of Vercelli and for Philoxenus of Hierapolis, such behaviour was more heinous than that of pagan persecutors, for it subverted one of the most important duties of Christians: charity for prisoners. In fact, Eusebius’ claim that the denial of visits and food to prisoners was unprecedented in pagan persecution was untrue, for Eusebius of Caesarea had charged Licinius with the same wrong and no less persistently when Licinius had allegedly issued a law to this effect between 320 and 324.56 While we cannot be sure whether Eusebius of 53

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Eusebius of Vercelli, ep. 2.7 (CC 9:108): et altius cogitate, num valde etiam deterior sit quam illa, quae fiebat per hos qui idolis serviebant. Illi mittebant in carcerem, non tamen prohibebant ad se venire suos . . . in carcere latronibus clausis a quaestionariis vel a iudicibus non denegatur facultas videndi suos: a nobis et nostri prohibentur, et devoti fratres ne veniant, non solum ab hospitio arcentur quo tenemur, sed ne adeant carcerem, comminatione terrentur . . .. Krause (1996) 279–283; see Libanius, or. 45.9 (Loeb 166–168). Philoxenus of Hierapolis, Letter to the Monks at Senoum (CSCO 232. Script. Syr. 99:76, 77–78). Eusebius of Caesarea, Ecclesiastical History 10.8.11 (SC 55:115–116); Life of Constantine 1.54.2 (SC 559:258). For comment see Rivière (2004) 229–231.

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Vercelli knew this incident it is clear that, in this context, he aimed to shift the attention away from pagan judges to a discussion of the role of Christian bishops. Already Ignatius of Antioch had interpreted the scripture passage: ‘I was in prison and you came to visit me’ (Matt 25:36) as a call to Christians to minister to prisoners as they represented the body of Christ.57 During the time of persecution, the attention of Christians had been mostly on their fellow-brothers who were imprisoned due to their faith. From the fourth century on, with the expansion of Christianity, this changed. John Chrysostom put the call to minister to prisoners into eloquent words when he exhorted his congregation to visit the filthy, hungry and ragged in the public prison, even though they might be ‘murderers, tomb breakers, cut-purses, adulterers, intemperate and full of many wickednesses . . . for we are not commanded to take pity on the good and to punish the evil, but to manifest a loving kindness to all men.’58 Incidentally, such charity was also demanded for strangers, which the same scripture passage had also represented as the embodiment of Christ (Matt 25:25), and hence also, in theory, for exiles. John Chrysostom, again, exhorted his flock to set aside rooms in their own houses and receive the poor as to offer hospitality to a stranger was to offer it to Christ.59 It is rare, however, that we find calls specifically to minister to exiles without, at the same time, the mentioning of prisoners.60 Prisons, in essence, were the most natural, visible and emblematic target for charity, for they were so intrinsically connected with ideas of suffering. By the fourth century, while remaining an obligation for all Christians, care for prisoners and strangers was championed to define in particular the bishop’s civic duties, to underline his wider concern for the poor and the forlorn, also in competition with non-clerical, ascetic patrons.61 Where prisons were concerned, it ranged from intercession for those who faced imprisonment, to practical assistance of prison inhabitants, especially with 57 58 59

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Ignatius, Letter to the Smyrnaeans 6 (PG 5:712). John Chrysostom, Homily on John 60.4–60.6 (PG 59:351; transl. NPNF 14:220). John Chrysostom, Acts of the Apostles 45 (PG 60:319–320). On the early Christian relationship with prison charity see also Geltner (2008b) 84–85, with further references. For the juxtaposition see e.g. Eusebius of Caesarea, Life of Constantine 3.44 (SC 559:406); Sozomen, Ecclesiastical History 2.2 (GCS 50:50) (both on Helena ministering to exiles, prisoners and those condemned to the mines); also Life of Melania 9 (SC 90:144); John Cassian, Conferences 18.7.8 (SC 64:20). See already Justin, apol. 1.67 (PG 6:429); and for the fourth century Ambrose, de officiis ministrorum 2.21 (PL 16:138–139). On the late antique bishop’s image as a ‘lover of the poor’ and the social power it entailed see Brown (1992) 89–103; on bishops and charity for prisoners Rapp (2005) 226–228.

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healthcare and with food.62 As we have seen in Chapter 5, fifty years after the episode at Scythopolis late antique laws institutionalised this charity, perhaps responding to the frequency of bishops’ intercession for prisoners, which demonstrates how socially significant it had become by that time. Ten years after Philoxenus of Hierapolis’ exile and confinement, Justinian reconfirmed these laws in his prison legislation of 529.63 As for hospitality, we see in the course of the fourth century a rise of specialised institutions, from hospices for strangers (xenodochia) to those of the sick (nosokomeia) under the direction and patronage of bishops, particularly in the Eastern cities of the Mediterranean.64 According to Eusebius, Patrophilus of Scythopolis had already demonstrated his ineptness for office through his negligence for Scythopolis’ poor, which had necessitated the Italian bishop’s and his companions’ food distributions in the city.65 Imprisoning Eusebius and his followers was another example of this lack of ability. Eusebius may in fact, rather cynically, have insisted on calling the place he was confined to a hospitium, to draw attention to the, in reality, rather inhospitable nature of his surroundings and the failings of the bishop as a host, as a Christian and as a civic authority. The same might be said about Philoxenus’ xenodochium. For Eusebius, Patrophilus’ behaviour was a sign that he and his coreligionists were driven by the devil. As Eusebius continued after he had compared Patrophilus to the pagan persecutors: How deep did the devil hurt the churches through the cruelty of the Arians! They send into public custody (custodia publica) while they should release from it . . .66

Patrophilus hence had entered an unholy alliance with current secular power also because he prevented other Christians from fulfilling Scripture and therefore jeopardising their salvation by employing and intensifying secular power’s very own abusive tools of coercion where he should have obstructed them. Eusebius’ statement went right back to the heart of early Christian debates about the relationship between Christian and public justice, which as we have seen in Chapter 3 outlived the era of persecution.67 62

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For bishops’ intercession see above Chapter 3. On food as a central part of prison charity see Augustine, serm. 178.4 (PL 38:962), Council of Orléans V (549), c. 20 (CC 148A:155) and Krause (1996) 281. CTh 9.3.7 (409); Sirm. 13 (419); CJ 1.4.22 (529). See also above Chapter 5. 65 See Mayer (2009) 92–96, 102 and further below Chapter 9. Washburn (2009) 741. Eusebius of Vercelli, ep. 2.7 (CC 9:108): quantum ergo satanas Ecclesias vulneraverit per Ariomanitarum crudelitatem! In custodia publica mittunt, qui liberare debent . . . See above Chapter 3.

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The reference by Eusebius to the release of prisoners as a duty for Christians, and particularly the bishop, is significant, as in the course of late antiquity release from prison, often at the hand of a saint in miraculous fashion, became one of the primary motifs in Christian literature to exemplify the superiority of ecclesiastical over public justice. The motif should not be confused with a saint’s own miraculous release from prison that we also find in early Christian martyr narratives. Both may have drawn on episodes in the Acts of the Apostles, particularly the angel’s release of Peter from prison in Jerusalem, or even earlier Hellenistic stories of miraculous prison breaking.68 Both also broached the issue of the relationship between divine and public justice. The crucial difference, however, is that the saint’s release from prison exemplified divine protection of those who confessed the right faith, while the release of prisoners at the hand of the saint expressed his or her divinely inspired authority over wrongdoers at the expense of public justice. The saint, as it were, assumed the place of the angel sent by God in the Acts of the Apostles and approached the prison from without. Those who benefitted were not just the holy anymore, but common sinners. It is no coincidence, then, that the latter theme appeared in Christian literature at a later date than the former, in concordance with the rise of the social and judicial authority of the Christian church in the post-persecution era and Christians’ real-life practices of intercession for prisoners in quite un-miraculous form.69 While release from prison was also an activity that non-clerical holy men were described to engage in, it was a motif that was particularly connected to bishop saints, dead or alive. In fact, the release of prisoners was not something holy men necessarily desired according to their hagiographers. The fifth-century Apophthegmata Patrum, a Greek collection of anecdotes and instructions of the fourth-century Christian hermits of Egypt, reported that one of these, Poimen, once prayed to be spared the task to intercede for a thief from his village with the governor after the villagers had asked him to. God granted him this wish.70 This story illustrates the hope that late antique rural communities invested in their local holy men as patrons against state authorities, and perhaps also accurately reflects the 68

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See Acts of the Apostles 12.3–12.19; 16.23–16.29. On Hellenistic versions of the miraculous release of prisoners see Krause (1996) 329–330. See about the difference between the motifs Neri (2004) 252–255. For the Sitz im Leben of the miracle see Wiesheu (2001) 3–4; James (2003) 34, 43. Apophthegmata patrum, Poimen 9 (81) (PG 65:324); see also 8.16 (SC 387:412) for a similar rejection of intercession. For other ascetic holy men releasing prisoners see e.g. Sozomen, Ecclesiastical History 1.14.9–1.14.11 (SC 306:180–182); John Moschus, pratum spirituale 211 (PG 87.3:3104).

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widespread activity of monks as advocates of prisoners that is equally attested by the legal and documentary evidence.71 Yet, in the context of such stories’ collectors, particularly in the East, the focus was often on the spiritual development of the ascetic: on their ability to withdraw from worldly trivia, or, where they had been the target of wrongdoing themselves, the ability to transform emotions of vengeance into acts of charity, by assisting in the release of their own offender from prison.72 The stand-off with a public judge and the miraculous aspect of prisoner release was less pronounced. Hagiography that had a bishop at the centre, in turn, often foregrounded this stand-off. Particularly in Gallic hagiography from the fifth century on, miraculous release of prisoners by bishop-saints featured so frequently that it has been described as a Modewunder.73 In Constantius of Lyon’s late fifth century Life of Germanus, bishop of Auxerre (378–448), for example, the saint freed a multitude of people awaiting capital punishment from the prison of his city through prayer.74 According to his biographer, Sulpicius Severus, Germanus’ older contemporary Martin of Tours (316– 397) had also engaged in intercession for prisoners with the comes Avitianus who had been woken by an angel to tell him about the urgency of Martin’s request and in consequence released everyone in his prison.75 In the sixth century, Gregory of Tours assembled a whole series of incidents where prayer to Martin or the passing-by of his relics freed prisoners, often on the saint’s feast day, not just those condemned to death, but also some who were in prison for minor offences and for debt. In a particular take on the aspect of hunger in prison, for example, Martin came to the rescue of four men who the judge had denied food provisions by friends and family. After they prayed to the saint, their chains fell off, they could leave the prison through open gates and seek asylum in church.76 This last example succinctly illustrates the connection between miraculous release of prisoners and the age-old expectation of Christians to care for prisoners. 71

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See CTh 9.40.15 (392); CTh 11.36.31 (392) and CTh 9.40.16 (398) on monks’ intercession for prisoners. On the patronage of the holy man see Brown (1971) 80–101. For papyri evidence from late antique Egypt (petitions to local monks to intercede for prisoners’ release) see Keenan, Manning, Yiftach-Firanko (2014) n. 10.6.5. For the latter see e.g. John Moschus, pratum spirituale 211 (PG 87.3:3101–3104). The seminal study of the miracle is still Graus (1961) 61–157. He also coined the term ‘Modewunder’ (at 119). See now also Jones, A. E. (2009) 192–209. Constantius of Lyon, Life of Germanus of Auxerre 36 (MGH SRM 7:277). Sulpicius Severus, Dialogues 3.4 (CSEL 1:201–202). Gregory of Tours, Virt. Mart. 2.35 (MGH SRM 1.2:622). See also Virt. Mart. 3.47, 4.16, 4.26, 4.39 (MGH SRM 1.2:193, 204, 205–206, 209).

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Intercession for prisoners did not include a priori conflict between public and ecclesiastical authority. In fact, František Graus has argued that the literary motif served to cement collaboration between church and state as two sides of the same attempt by the powerful to dominate the poor of late antique Gaul, through either repression or the creation of obligations via pardons and forgiveness.77 In fact, nearly all incidents of prisoner release ended in church asylum and pardon by the public judge. While through granting pardon the judge certainly demonstrated submission under divine authority, with the acceptance that true pardon could only come from God, it is also clear that the episodes of release could only come to a positive conclusion through public endorsement.78 It is therefore possible that the hagiographic motif meant to transport, perhaps also as a model for public authorities, a less antagonistic idea that public and ecclesiastical procedure could be complementary, similar to what Augustine had postulated as discussed in Chapter 3. Still, as Annette Wiesheu has pointed out, Graus’ linear Marxist reading of the motif may need to be reviewed, as there are versions of the miracle that clearly undermined a public judge’s authority. For example, in Venantius Fortunatus’ Life of Germanus, bishop of Paris (500–576), Germanus asked the judge to release a prisoner. The judge declined the request, but Germanus proceeded anyway, with prayer.79 In another case, Martin of Tours took issue with the fact that a judge put a man in prison who had performed public penance for his crime. In the eyes of Gregory of Tours, who reported the incident, ecclesiastical penance overrode public punishment.80 According to Wiesheu the motif needs to be seen as part of the struggle of Merovingian bishops to gain a foothold within public criminal jurisdiction in the sixth-century, which was well-established in practice but had not yet been recognised by law. The miracle lent authority to the power of the bishop in criminal jurisdiction, which was, in reality, due to the Roman legal tradition, not very strong in Gaul before its formal royal acceptance in the edict of Clothar II in the early seventh century.81

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Graus (1961) 61–157. See e.g. Gregory of Tours, Virt. Mart. 4.16. 4.39 (MGH SRM 1.2:204, 209); on the importance of public pardon see Jones, A. E. (2009) 192–209. Venantius Fortunatus Life of Germanus 30 (MGH SRM 7:390); see Wiesheu (2001) 10. Gregory of Tours, Virt. Mart. 3.53 (MGH SRM 1.2:195); see James (2003) 33–34. For Augustine see above Chapter 3. Wiesheu (2001) 7–15.

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At the time of Eusebius of Vercelli in Scythopolis, the realisation of such episcopal power still lay far in the future. Although we can see in his letter the blueprint of a delineation of ecclesiastical authority in the civic sphere, his concern was not to combat a local public judge, but a fellow bishop. Between the fourth and sixth centuries, uncertainties over doctrinal principles and exile, the weapon of choice by late antique emperors to solve religious conflict, meant that bishops met as rivals to compete both for the definition of orthodoxy and for popular influence. The prison and how to deal with it correctly became the theatre of this contest, but also frequently its solution, through the confinement of the troublesome exile. While such solution was often an uneasy one, given the role of the prison in the Christian imagination, Christian exiles’ experiences in confinement however also show that, from the fourth century on, prisons were not institutions anymore that necessarily stood in antagonism to Christianity. The call for charity for prisoners, enhanced in late antiquity through stories of their miraculous release, did not question the legitimacy of the prison itself as an aspect of Christian life, but sought to establish who had the rightful authority to put others into prison. While Christian writers also used incidents of bishops campaigning for imprisonment of opponents to underline the outrageousness of their situation, this cannot mask that late antique bishops in general, as we have seen in Chapter 3, began to support and adapt to public forms of judicial procedure, including the use of imprisonment, an issue that we will discuss further in Chapter 9. In doing so, bishops exposed themselves to the accusations of abuse hitherto directed only at public officials. However, the prison could also play a different, more positive, if also more metaphysical role in the Christian imagination. It is to this that we will now turn.

The ascetic experience When John Chrysostom was sent into exile in 404 to the town of Cucusus in Cappadocia, he wrote to his friend, the aristocratic lady Olympias, consoling her that she had not been able to arrange for his recall yet. The best way to approach his experience, John reasoned, was to treat it as insignificant: I at least have not ceased, and will not cease saying that sin is the only thing which is really distressing; and that all other things are but dust and smoke. For what is there grievous in inhabiting a prison (δεσμωτήριον οἰκῆσαι) and wearing a chain? Or in being ill-treated when it is the occasion of so much

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gain? Or why should exile be grievous or confiscation of goods? These are mere words, destitute of any terrible reality . . .82

In another letter (sent after he had been temporarily moved to Arabissus and then returned to Cucusus in 407) John reported to Olympias that at Cucusus, alongside the inconveniences that came from harsh climate, savageness of the region, lack of baths, servants, food, skilful doctors, from the fear of robbers and barbarian attacks, he was ‘confined in one chamber as in a prison (δεσμωτηρίω̣)’ with ‘perpetual contact with fire and smoke’. To stress the importance of endurance (also of Olympias, who seems to have been ill) he evoked the image of the apostle Paul, who had been tried by the physical pain of the prison (δεσμωτήριον) and had embraced this as a divine test and ‘training’ to gain salvation.83 In another letter to Olympias, written in 405, John Chrysostom had already revealed, however, that he was not actually imprisoned in Cucusus.84 The torture of confinement and smoke was not due to human agency, but to the cold of the Cappadocian winters that forced him to stay indoors near the fire.85 For John, the distress of the prison, then, was not a reality, but a useful way of thinking, in order to come to terms with the experience of exile and to reflect about its benefits. Philosophical thinkers of the early empire, such as Plutarch and Dio Chrysostom, had written about exile variably, under stoic inspiration, as a non-event that should not affect the wise man’s pursuit of happiness, as a form of retirement away from the demands of a public life, or as an opportunity for reflection and detachment, where the endurance of hardship would lead to personal improvement. As Daniel Washburn has shown, it was in particular the genre of consolationes, letters, speeches or treatises written to comfort those experiencing death or hardship that generated and developed these ideas. Christian authors, including John Chrysostom, drew on such literary traditions.86 Classical authors, however, unless they were particularly platonically minded, mostly elaborated on the theme of exile imposed by others, as an expression of power that could be subverted and shown to be futile where the exile recognised the potential of 82 83

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John Chrsostom, Letter to Olympias 14 (PG 52:617–618; transl. NPNF 9:302). John Chrysostom, Letter to Olympias 4 (PG 52:595–596, comparison to Paul at 594; transl. NPNF 9:296). John was hosted at the house of a friend at Cucusus, even though his movements seem to have been monitored closely; see Kelly, J. N. D. (1995) 258. John Chrysostom, Letter to Olympias 6 (PG:52:599). Washburn (2007) 299–316. For an excellent overview of ancient ideas of exile also see Gaertner (2007) 1–20.

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individual advancement that lay in banishment.87 Christians, in turn, started from the premise that exile was a universal human condition, traceable back to the banishment of Adam and Eve. Time in this world was a punishment and should be spent to reflect on mending this lost relationship with God, on the inner journey back to God.88 At the same time, exile as a public penalty for Christians was comparable to other forms of distress in earthly life as an expression of divine justice. John Chrysostom took his exile also as a sign that God used worldly justice, however unjust it seemed to him and other men, as a test of faith. The classical notion of moral improvement through the hardship of exile hence became superimposed with the idea that public justice while ostensibly pursuing different aims, in truth was bound up in the system of divine justice and salvation. These concepts of exile particularly underpinned Christian asceticism. As those who would overcome exile from God had to rise above the bonds that tied them to the world, the journey to God was to be made by voluntary, literal exile from the world to reflect on sinfulness. It was this logical sequence of double exile that lay at the heart of the Christian ascetics’ withdrawal from the world (at times called anachoresis).89 It led Christian hermits to seek out the deserts of Egypt, and their later followers, particularly in the West, where deserts were scarce, uninhabited islands or forests.90 Even those who found themselves sent to an alien place by legal exile frequently tapped into this discourse.91 The sentiments expressed in such discourses, focussing on banishment as a positive event, show that, while harsh exile conditions would at times be emphasised to underline a persecution experience, depending on the literary agenda they could also serve to highlight the ascetic credentials of an exile. This was perhaps even more so when exiles where sent to fortresses, which may have recalled withdrawal into an abandoned fortress in the desert by Antony of Egypt, the legendary hero of Christian asceticism.92 Yet, while ancient authors for centuries developed solitude, disease, poverty, difficulties of communication, climate and barbarian surroundings as the defining attributes of exile, the above mentioned passages from 87 88

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Whitmarsh (2001) 269–301. The classic text in Christian scripture is Paul 2 Cor. 5:6. For late antique articulation of the theme see e.g. Leo, serm. 2.5 (SC 22bis:88); Gregory of Nazianzus, Orat. 43 (PG 36:501); see also Brito-Martins (2004) 83–94; Rocovich (2004) 212. von Campenhausen (1968) 232–235. 90 Gradowicz-Pancer (1992) 3–18. Vallejo Girvés (2000) 533. See e.g. Nestorius, Bazaar of Heracleides 2.2. (transl. G. R. Driver, L. Hodgson (Oxford: Clarendon Press, 1925), 379–380). Athanasius, Life of Antony 12 (SC 400:166–168).

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John Chrysostom’s letters show that Christian descriptions of exile as a spiritual challenge also associated it with the prison. This was an entirely new development in exile literature. The connection between prison and exile had only rarely been made in classical times.93 Where early imperial exiles engaged with the concept of the prison philosophically, it was usually through a reiteration of Plato’s entirely negative or negatively interpreted metaphorical comparison of the body as the prison of the soul (δεσμωτήριον or ϕρουρὰ), or as a cumbersome experience that the wise man would ignore. We find this elaboration for example in Seneca the Younger’s letter of consolation to his mother, written from banishment in Corsica in 42/3 and referencing Sokrates’ imprisonment. Yet, Seneca did not engage with the idea of imprisonment as an opportunity of moral advancement even though this had also been developed by Plato, as we have seen in Chapter 1.94 It might be that earlier Roman exiles rarely made the connection between their condition and the public prison because one was a legal penalty and the other an institution of court procedure. Cécile BertrandDagenbach, however, has argued that this lack of a positive philosophical perspective on the prison was due to the powerful notion of loss of status and dignity the institution carried for the educated Roman, as we have also seen in the preceding chapters.95 Even in late antiquity, where Christian writers increasingly adopted the prison as a place ‘to think with’ in order to develop ideas of sanctity, charity, and salvation, it was still mostly the metaphorical concept of the body as a prison for the soul, now in its NeoPlatonist reincarnation as the lowest form of human existence, that captured the interest of members of the Christian senatorial elite.96 The most important writer in this regard was Boethius, whose elaborations helped to preserve the metaphor’s popularity throughout the Middle Ages, despite its, for some Christian thinkers, worryingly dualist and Origenist qualities.97 As discussed in Chapter 5, in 524 Boethius was held in custody on the orders of the Ostrogothic king Theoderic after having been convicted of treason, awaiting his trial. The place of his confinement was not a public prison but a form of house arrest, where Boethius wrote his 93

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For an isolated incident see D 48.22.5 (Marcian) who called island exile vinculum; for comment see Cohen (2008) 209. Note, also, that Juvenal separated the experience of exile on an island and imprisonment in Sat. 1.73–1.74 (Loeb 186). Seneca, cons. Helv. 13.4 (Loeb 464). On Plato’s comparison of the human body to a ‘prison’ see above Chapter 1. Bertrand-Dagenbach (1999b) 211–219; Bertrand-Dagenbach (2004b) 143–149. On the Neo-Platonist take on the metaphor see Courcelle (1976) 305. For the late antique debate about the metaphor see Courcelle (1976) 309–315.

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famous Consolation of Philosophy.98 In this work he described his current fate as one of exile (exsilium), but it is clear that this did not refer to his penalty, for he was sentenced to death. It was a reference to his loss of social status through his conviction. Philosophy, who appeared to Boethius in his distress, pointed out to him that what he considered exile was a false illusion, for he had already been banished long before from his native country, that is from God, at his own hands by putting too much emphasis on worldly goods and pleasures. Later, Philosophy compared Boethius’ actual imprisonment to the confinement of his soul in the prison (carcer) of the worldly existence. While the easy replacement of exile and prison in Boethius’ work was fairly innovative, his concept of prison was conventional.99 In turn, the idea of the prison as a place of Christian reflection able to assist in surmounting exile from God, and hence to be embraced rather than overcome, was first postulated by Tertullian at the end of the second century. Tertullian claimed in his Ad Martyras (written c. 197) that in the age of persecution the prison was to the martyr what the desert had been to the prophet.100 It is a work that also has to be read as part of the consolationes genre, meant to fortify those who had been arrested for their faith and were awaiting trial or execution. In the usual manner of the ancient philosopher, Tertullian told Christians that prison was a nonevent. The body may have been shut in, but everything was open to the spirit (2.9: etsi corpus includitur, etsi caro detinetur, omnia spiritui patent). Christians in prison were to consider the prison a place of retirement and undisturbed prayer (2.2). It was a place away from the public rituals of the pagan religion, the holidays, the sacrifices, the circus shows (2.7). The real prison – in a Platonic sense, which Tertullian knew well – was the world outside.101 In a change of tone, Tertullian admitted that prison was of course unpleasant (molestus) even for Christians, but this distress had to be taken as an exercise of virtue (ad exercitationem virtutum) (3.1–3). Prison was a training ground (carcerem nobis pro palaestra interpretamur) to face death well disciplined and win the crown of martyrdom (3.6). Tertullian’s words were powerfully echoed by the Acts of Perpetua and Felicitas, sometimes believed to have been edited by himself around c. 203, particularly by the chapters containing the diary of Perpetua, a young noble woman for whom the prison became a place of divine visions, one of which famously 98 99 100 101

See above Chapter 5. Boethius, Consolation of Philosophy 1.5 (Loeb 158–162); 2.7.83 (Loeb 216); see also 3.6.5 (Loeb 250). Tertullian, ad Martyras (CC 1:3–8). On Tertullian’s knowledge of Plato’s idea of the imprisoned soul see Courcelle (1976) 303.

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saw her battling the devil as a male athlete.102 Tertullian hence used rhetorical strategies and projected ideas customarily employed to explain the distress of exile – the inconsequential nature, the opportunity of worldly detachment, the spiritual advancement through hardship – onto prison in an unprecedented way. Perhaps for the first time in Latin literature (and also in contrast with the much later Boethius), Tertullian described prison not as confinement of the body, but as a place whose very characteristic separation from the world allowed the soul to concentrate on God, as exile had for the ancient philosopher.103 Tertullian lived in a world where Christians reflected on prison in the context of martyrdom. In fact, in the Acts of Perpetua and Felicitas mentioned above, a stark line was drawn between Christians and the common (at this time also pagan) criminal, when Perpetua’s slave Felicitas, whose death in the arena was delayed due to her pregnancy, despaired that she would have to die with the latter, rather than her ‘innocent’ companions.104 From the fourth century on, however, as we have seen above, prisoners of all descriptions, not only those persecuted for their faith, increasingly became the focus of Christian attention. While bishop of Constantinople, John Chrysostom claimed that engagement with the present-day prison not only allowed for charity, but also had a pedagogical effect, for prisoners symbolised human sinfulness and the prison offered a glimpse of potential eternal punishment. The idea that the suffering in prison was similar to what could be expected of hell was widespread in late antiquity.105 Once again, as we have already seen in Chapter 3, public criminal procedure provided material and metaphors to describe divine damnatio, to make sinners embrace penance and emendatio in this life. For John, the spectacle of the prison, as opposed to that of the theatre, the civic institution he most loathed, would hence surely drive a man to become wise and mend his ways, for example through the very concrete form of alms giving.106 Yet, prisons did not only teach those who visited them but also the prisoners themselves. It humbled minds through the pressure of affliction.107 Certainly, Tertullian had addressed this idea, where he called prison a ‘training ground’, but his focus had been on a civic institution 102

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Acts of Perpetua and Felicitas 10–13 (Musurillo:116–122); on the role of the prison in the Acts see Heffernan, Shelton (2006) 217–233. Cassidy-Welch (2001) 34–36, with an excellent discussion about the difference between a Platonist view of the body as a prison of the soul, and Tertullian’s view of the prison setting the soul free. 105 Acts of Perpetua and Felicitas 15 (Musurillo:122). Neri (2004) 248–249. On John and the theatre see Leyerle (2001) 42–74. John Chrysostom, Homily on John 60.4–60.6 (PG 59:331–335).

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unjustly imposed on Christians, rather than on uniting Christians and common criminals in human sinfulness with the prison a prospect for them all. John in turn simply assumed that everyone who was in the public prison deserved it – the concept of innocence did not feature in his reasoning. Again, John here entertained the comparison with the theatre. Where the prison, standing ‘like the teacher over the child’, furthered seriousness of mind and humility, for even the rich man all of a sudden had to keep community with those socially beneath him, the theatre – a traditional locus of paideia – did the reverse, for it taught moral debauchery, a sense of superiority and the love of luxury. As a result, those coming out of prison would feel free, while those leaving the theatre would feel the heavy chains of sin.108 Prison could still, even if it was not a place of preparation for martyrdom anymore, be conceptualised as a place of spiritual reflection, precisely because it was so intrinsically connected to guilt. John here already anticipated many arguments he would later repeat to rationalise his exile experience. Due to these traditions, the image of prison could become an instructive metaphor to represent the demands of ascetic life both in the East and in the West, alongside that of exile. It is important, however, to distinguish between ascetic memory of the martyr’s prison and ascetic reflections on contemporary prisons. It has indeed been argued that the development of the late antique monastery drew in particular on the former, based on Tertullian’s foundational text. Yet, while the martyr undoubtedly was a model for the late antique monk,109 the first full theological elaboration of the link between the experience of the martyr in prison and monastic life, and particularly between the martyr’s prison and monastic space, only dates to the later Middle Ages and the age of Cistercian monasticism in the eleventh century, which has been the focus of those who have studied the phenomenon so far.110 There is hence a risk of re-projecting onto the late antique period much later monastic ideas. Certainly, the travails of the late antique monk were sometimes compared to the martyr in the prison. This is most pronounced in the mid-sixth-century Rule of the Master from 108 109

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John Chrysostom, Acts of the Apostles 42.2 (PG 60:301): παιδίω̣ παιδαγωγὸϛ ἐϕέστηκε. See for a detailed discussion of this association Malone (1950), though Malone does not consider the prison as an environment of early Christian martyrs. A particular impressive example derives from the Pachomian Paralipomena 5 (transl. Veilleux, vol. 2:26–27), where Pachomius told a brother who had wanted to become a martyr that the monk’s contest, the pursuit of a lifestyle pleasing to God, would fit the bill equally: ‘you will have the fellowship with the martyrs in heaven’. Accordingly scholars had dubbed late antique ascetisim ‘white martyrdom’, although the term itself was coined only in the context of seventh-century Irish monasticism: Stancliffe (1982) 21–46. Penco (1966) 133–143; Leclercq (1971) 407–420; Cassidy Welch (2001) 23–42; Geltner (2008b) 85–86.

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Southern Italy. After elaborating the need to leave all links to the world behind, the Rule compared the resulting distress of the monk through fasting and sexual abstinence with that inflicted by the persecutor, torture and prison: If he inflicts the tortures of the claw or of the rack or of scourging, the endurance of a little pain quickly gives way to a crown of eternal joy. If for the sake of God a dark prison confines us (carcer nos . . . tenebrosus reclaudat), in its stead the eternal Jerusalem, built of gold and adorned with precious stones and pearls awaits us. If for the sake of God the prison’s darkness makes us blind (obscuritas clusurae . . . nos . . . obcaecet), it can deprive us of sight for the moment, but afterwards we shall be received into eternal life by that other light which shines not with the brightness of the sun or of the moon (. . .) but with the everlasting majesty of God himself.

These remarks, loaded with allusions to the Revelation (21:18–23) and the Vision of Paul (20–29), a late-fourth-century apocalyptic text popular across the Mediterranean, compared exile from God to the martyrs’ suffering in prison to describe the ideal monastic lifestyle.111 The Rule crucially continued, however, that in the present day, where there was no persecution, the abbot would assume the job of the persecutor so that after the journey of the world God would be able to measure the degreee of endurance. This text may also have engaged with Tertullian’s Ad Martyras, although it is far more pronounced than Tertullian on a Neo-Platonist rejection of the body as prison of the soul.112 The Rule of the Master is a striking example of a late antique connection between the martyrs’ prison and monastic life, but it is also a rare one, and it originates from the West, where we can postulate a tradition of Tertullian’s Ad Martyras. In Eastern asceticism, described as life of perpetual penance (metanoia, which gave the famous Pachomian monastery at Canopus its name), the metaphor of the prison was more often used to exhort the ascetic to concrete penitential activities.113 The reference for Eastern ascetics was, however, not the prison of the martyrs, a memory of the past, but the contemporary public prison. Their models were not martyrs, but real-life criminals, as a number of passages in the Apophthegmata Patrum show. Ammon of Amun (288–350), for instance, a hermit in the Nitrian desert, taught one of his disciples to adopt the 111

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The Rule of the Master 90.16–90.19 (SC 106:380–382). see the editor’s note on the influence by the Vision of Paul. Ohm (1982) 145–155. On the monastery see Haas (1997) 321–322 and see also above Chapter 6. On metanoia as the definining feature of Eastern asceticism see Rapp (2007) 136–137.

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attitude of a prisoner. Like the criminal in the prison (ϕυλακή), the focus of his meditation should be on the coming of the judge, dreading his punishment. Amma Syncletica (d. c. 350), who lived in a tomb outside Alexandria, likewise exhorted her followers to behave as if in prison in anticipation of punishment, to treat human sin in the same manner as a public crime, which would surely be followed by imprisonment, even if small or involuntary. Patience of the prisoner was the keyword for the late fourthcentury wandering hermit Bessarion, disciple to Antony of Egypt. The ascetic in the desert, scorched by the sun, should think of the prisoner who would suffer coldness and nakedness.114 These passages aptly demonstrate that late antique people thought about prison as an endless ‘waiting room’, which reflects the slowness of criminal procedure in late antiquity described in Chapter 5. Knowledge of the suffering in the contemporary prison (possibly also through concrete intercession for public prisoners) allowed ascetics to embrace the concept that any form of public justice was just an expression of God’s justice, a divine test. The contemporary prison was a precarious and ubiquitous institution, for it could strike anyone, even the innocent, and even the rich. It was perhaps a more apt image than the martyr’s prison to explain God’s inexplicable justice in a Christianised world, where the holy and the common offender were united in human sinfulness, and the need to live a life in permanent penance.115 The instructions of the Christian hermits strongly inspired monastic leaders in the west. As a result, the idea of the Christian ascetic habit as one of continual penance also underpinned Western monasticism, and so might have exhortations to ascetics to adopt the mental state of prisoners, beyond that of imprisoned martyrs.116 The Latin translation of a collection of Apophthegmata, which in the Middle Ages went under the name of Verba seniorum, possibly prepared in the first half of the sixth century by 114

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Apophthegmata patrum 3.1 (Ammonas) (SC 387:150); 7.25 (Syncletica) (SC 387:356); Bessarion 12 (PG 65:143). For comment on these passages see also Geltner (2008b) 85–86. See also Apophthegmata patrum 7.56 (SC 387:388); 11.43 (SC 474:156); 31.18 (SC 498:204). On prison for the rich see John Chrysostom, Homily on Genesis 22.7 (PG 53:195); Homily on the Acts of the Apostels 42:2 (PG 60:301); Ambrose, Exam. 2.7.30 (CSEL 32.1); for the innocent: Augustine, en. psalm. 56.14 (CC 39:704); 91.14 (CC 39:1289); 122.10 (CC 40:1822); serm. 161.4 (PL 38:879–880); 211.2 (PL 38:1054); 362.9 (PL 38:1616); John Chrysostom, Homily on Genesis 63.2 (PG 54:542–3); see Neri (1998) 455–456. Rule of Benedict 73 (SC 182:672). See also Rule of Benedict 49 (SC 182:604): omni tempore vita monachi quadragesimae debet observationem habere and Rule of Benedict prol. 35–38 (SC 181:420– 422): haec conplens Dominus expectat nos cotidie his suis sanctis monitis factis nos respondere debere. Ideo nobis propter emendationem malorum huius vitae dies ad indutias relaxantur, dicente apostolo: An nescis quia patientia Dei ad paenitentiam te adducit? Nam pius Dominus dicit: Nolo mortem peccatoris, sed convertatur et vivat.

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two future popes, Pelagius I (556–561) and John III (561–574), also contained passages elaborating on the criminal in the prison as a model for the monk. It was well known to the compiler of the Rule of Benedict.117 Present-day criminals were the reference in Gregory of Tours’ story of Hospitius, a hermit who originally came from Egypt, but took up residence near Nice, in a dilapidated tower, where he lived wearing chains. When he was seized by the Lombards (around 575), who had made an incursion into Southern Gaul, they at first mistook him for a criminal. Hospitius gladly confirmed this impression by telling them that he was indeed a convicted murderer.118 While the detail that the Lombards would believe him demonstrates that also in Gregory’s Gaul the long-term imprisonment of convicted criminals and the make-shift nature of prisons were commonplace, it further shows that to adopt the identiy of real criminals – sinners de luxe– was to drive home the penitentiary nature of the ascetic life. Invoking the image of the prison was hence a way to think about monastic life already in the late antique period. However, in late antique monastic discourse there is very little evidence that monastic space itself, the building of the coenobitic monastery, became represented as a prison, or, as we have seen in Chapter 6, that late antique monasteries had dedicated prison space prior to the seventh century. Where ascetic thinkers called up prisoners as a model for their life, their focus was on the mental attitude not on their spatial surroundings. In fact, prison was a model that could also be adopted, as in the case of Abba Bessarion, by wandering hermits. To be sure, in one of the earliest Western texts referring to monastic life, the famous letter Siricius of Rome wrote to his colleague Himerius of Tarragona in 385 to advise him about the correct punishment of unchaste monks and nuns, monastic cells were called ergastula. Siricius, in fact, recommended that unruly ascetics were excommunicated and ‘thown’ into their cells (retrusae in suis ergastulis) until their death to suffer in the ‘fire of penance’.119 Again, this shows that monastic discipline could include punitive imprisonment in a variety of spaces, in this case individual monks’ living space. Siricius’ chosen term was meant to compare what was to happen to the monks to the fate of slaves or public convicts.120 The 117

118

119 120

See e.g. Verba seniorum 3.2 (PL 73:860). On the history of the Verba seniorum as a text see Harmless (2003) 170–171. Gregory of Tours, Histories 6.6 (MGH SRM 1.1:273). See also Gregory of Tours, Glory of the Confesssors 97 (MGH SRM 1.2:359). Siricius, ep. 1.6 (PL 13:1139). See above Chapters 6 and 7 for the use of the term ergastulum in this context in late antiquity. On the monastic term see Torres (1990) 287–290, who correctly rejects the notion that Siricius’ ergastula meant purpose-built monastic prisons.

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rise of the term ergastulum to describe not only the ascetic state, but also monastic space reflects that at the end of the fourth century ideas of perpetual penance for human sinfulness became expressed not only in language of exile, but also in that of confinement. We should remember, however, that, as we have seen in previous chapters, ergastulum, where it referred to slave punishment or to a legal penalty, foregrounded separation from the world more than imprisonment. Sending someone to an ergastulum was a form of exile, even if a humiliating one. Siricius’ aim was certainly to describe vividly the unruly ascetics’ exclusion from the community, although his suggested penalty differed from the domestic or public one in the expectation that it was to facilitate penance. Three decades later, the (possibly) pagan poet Rutilius Namatianus made a more general link between asceticism, ergastulum and exile. Travelling back from his assignment as Urban Prefect of Rome to his home in Gaul in 416, Rutilius came to the island of Capreia off the east coast of Corsica, residence of a coenobitic community. With a contempt that reveals his scorn for the monastic fashion of his time, he described the monks as men ‘who flee the light’ (lucifugis). Wishing to ‘dwell alone with none to see’ (soli nullo vivere teste volunt), they, like those in ergastula, ‘beg for punishment of their deeds’ (sive suas repetunt factorum ergastula poenas). Namatianus’ use of the term is a remarkable insight into current monastic penitential language, which he may have picked up from his friends, who much to his despair had taken up the ascetic life.121 It also shows that dwelling on an uninhabited island (a horror vision for the urban Roman for centuries) and being banished to an underground workshop could express separation from the world equally well in monastic discourse. Perhaps it was because the spatial aspect of the ascetic life was so powerfully connected to exile, with the image of the prison describing a mental attitude that the term carcer remained absent in ideal constructions of monastic space. Its absence is particularly remarkable as over the course of the fifth and the sixth centuries the ideal architecture of the coenobitic monastery came to resemble a form that to a modern eye startingly looks like a prison. Sixth-century monastic rules vehemently stressed the need for enclosure, the necessity of walls and scarcity of doors, as well as of porters to 121

Rutilius Namatianus, de reditu suo 1.439–1.452 (Loeb 802–804). Namatianus seems to take ergastula as referring to those suffering this punishment, rather than the space, which reflects its use in classical Latin. See Cameron (2011) 211–213 for comment, although I think Cameron overestimates the association of islands with prisons in antiquity.

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guard the doors and filter communication with the outside world.122 Furthermore, monks and nuns started to become bound to their monasteries not just through architecture, but also through irreversible vows and assignment of property to the monastery, which made return to an outside life nigh impossible.123 While these developments were most pronounced in the West, we can also observe them in the East, and in particular in Justinian’s legislation on monasteries, to which we will return in Chapter 10. Enclosure may have been seen as necessary in particular in the case of nuns, following the ancient tradition that the natural place of women was within domestic walls.124 Caesarius’ Rule for Nuns was the earliest rule prescribing total enclosure for life of each nun, ‘until her death’. Yet, demands for strict, visible and impermeable boundaries to the outside world also began to feature in monastic rules for male communities.125 The reasons for this development may have lain in the rising numbers of those taking up the coenobitic lifestyle during the fifth and early sixth century, perhaps also due to the specifications at the Council of Chalcedon in 451 that all Christian ascetics were to be assigned to a coenobitic community under supervision of a bishop, from where they were not to leave.126 The increase of coenobitic monasteries and the stability of monastic communities at one place meant that many monks and nuns now lived in permanent proximity to society. The described architectural features were not designed to inspire association with the prison, but to allow withdrawal from society in the absence of natural boundaries such as deserts or islands that could aid separation from an impure world. The concept of exile from the world, to travel, together with the entire community, towards God remained the most prominent way to imagine the ascetic experience.127 122

123 124

125

126

127

Gradowicz-Pancer (1992) 3–18; Gradowicz-Pancer (1999) 178–179. See, for example, Caesarius, Rule for Nuns 50; 59.1–59.2; 73.1–73.2 (SC 345:236, 243, 272) on walls and doors; on the role of the porter: Rule of the Four Fathers 4.16 (SC 297:200); Oriental Rule 26–27 (SC 298:482–484); Rule of the Master 95 (SC 106:442–448); Rule of Benedict 66 (SC 182:658–660). Gradowicz-Pancer (1992) 3–18. Such expectations, mentioned above in Chapter 6, were postulated even more forcefully for Christian virgins, particularly in the West; see e.g. Jerome, ep. 128.4 (Labourt, vol. 7:151–153); Schulenburg (1984) 51–86; Stahlmann (1997) 188–193; Dailey (2014) 305–314. Caesarius, Rule for Nuns 2–3: usque ad mortem suam (SC 345:180); see also Caesarius, Rule for Nuns 1.3; 2.2–2.3 (SC 345:170, 180); Caesarius, Rule for Monks 1.1–1.3 (SC 398:204–206); Rule of Benedict 58.17 (SC 182:630): demands vows of stability, conversion and obedience; for male communities in particular see Diem (2005) 333. Council of Chalcedon (451), c. 4 (ACO 2.2.2:34). On the regulation of monasteries at Chalcedon see also Frazee (1982) 263–279. Gradowicz-Pancer (1992) 9–10. For the concept of the monastic community travelling towards the kingdom of God see Rule of Benedict prol. 22–50 (SC 181:418–424).

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As we have seen in Chapter 6, it was in the early seventh century that prisons also started to feature in the ideal and perhaps also real construction of monastic space. Yet, even at this point it was not the monastery as a whole that came to be described as a prison. The institution of monastic prisons was intended to create separate spaces to keep the community pure from sin and to facilitate different stages of penance. John Climacus’ early seventh-century Ladder of Divine Ascent impressively illustrates the differences between exile and prison in the monastic imagination, but also shows how penitential activities in the monastery were inspired by present-day prisons.128 John’s work described the thirty steps a monk needed to take to attain ascetic perfection. Among the general conditions of the ascetic life he counted ‘exile’, in the sense of becoming a stranger to the world (ξενιτεία). From here the monk had to progress to ‘obedience’ and ‘penance’ (μετάνοια). While John postulated that monastic routine was universally focussed on penance, he also explained concrete measures a good abbot would take to deal with those who went astray, so added a personal sin to human sinfulness, after they had entered the monastic life. Among such measures was sending someone to the monastic prison (ϕυλακή), as one of John’s admired abbot friends had done. Yet, crucially, John recommended that the monastic prison could also be a place where all monks would go from time to time as a form of self-inflicted punishment. Even John had taken it on himself to pass thirty days in this ‘prison’ (ἐν τῆ̣ ϕρουρᾶ̣ ). He witnessed men who stood up the entire time, men who prayed with hands tied behind their backs ‘like condemned criminals’ (καταδίκων), men who dressed in sack cloths and ashes and sat in complete darkness and filth. The purpose was to attain an intellectual state of humility, to embrace deserved punishment, by mimicking the suffering in public prisons and as such anticipating the torments of hell.129 John came back ‘much changed’ and with the conviction that those who had sinned and learned to mourn themselves were, indeed, more blessed than those who had not.130 The ‘prison’, dark, dirty and squalid, was an ulterior place for penitential reflection on human sinfulness, an enhancement of exile, the general ascetic state. Some ascetics were seen as able to create such a place permanently in their imagination, but those who failed were given the opportunity to experience imprisonment physically. 128 129

130

John Climacus, Ladder of Divine Ascent, step 3, 4 and 5 (PG 88:672–793). See Chryssavgis (1989) 110, who also emphasises the crucial difference to the Platonic idea of the ‘purity’ of the intellect. John Climacus, Ladder of Divine Ascent, step 5 (PG 88:764–775).

Conclusions

Late Roman judges faced a serious dilemma. Traditional expectations of moderation and discretion in punishment, the hallmarks of clemency, as well as the Christian concept of punishment as ultimately God’s privilege transformed non-lethal penalties into an attractive option in late Roman judicial processes under some circumstances. The crime of religious dissent was one of them, as there was an urgent need to avoid the danger of being branded a persecutor. At the same time, an understanding of crime, and particularly the crime of religious dissent, as an unwanted influence, framed as ‘disease’, increased the demand to remove offenders from society and sometimes to compel a change of conduct. Yet, particularly at elite level the methods chosen to address such needs were at times wholly inadequate. Authorities often worked on the assumption that higherranking convicts were suppressed or even ‘corrected’ in their activities when removed from their primary theatre of action and put in the vicinity of either very ‘immoral’, for example pagan, individuals, or very ‘moral’ ones, such as loyal bishops. They seemingly found it hard to come to terms with the fact that this approach often did not work and led to more unrest, particularly in the case of exiled clerics and matters of belief, which, it turned out, needed more stringent mechanisms of security and coercion. When choosing such mechanisms, civic and ecclesiastical authorities in the provinces may have thought that house arrest or the assignment of a military guard were perfectly legal, honourable, appropriate and bloodless ways to address problems of disorder, including the sedition stirred up by leading churchmen. After all, according to traditional Roman law a provincial governor could place exiles under house arrest. House arrest and custodia militaris also were the forms of custody the law suggested for members of the elite who got into legal trouble. Furthermore, some laws on heresy alluded to spatial confinement of heretics, albeit in the very vague terms of detrusio or retrusio, and may therefore have provided a context for security measures. In addition, emperors themselves at times ordered that a 275

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period of exile had to be spent in some sort of confinement. Nonetheless, the practice of confining or subsequently confining exiles was a matter of legal debate, and eventually prohibited under Justinian. Characteristically, the late Roman state did not design or create new spaces for the execution of a penalty that aimed at neutralisation, surveillance or coercion, despite the comparatively higher significance of such ‘utilitarian’ functions of punishment in late antiquity. Neither did the state proceed to adapting the existing institution of the public prison to these demands. On the contrary, by law the function of the public prison remained defined as one of preventive custody, for lower-rank offenders only, and its numbers kept limited, although its coercive qualities were well probed in social practices and its punitive qualities even endorsed by some Christian writers, which arguably led to a proliferation of public prisoners and hence overpopulation of existing prisons in late antiquity. What is more, public prisons themselves may often have been of a make-shift nature, adapting previous buildings. On one level, underlying the described problems of late Roman authorities to effectively address the relatively new requirements of neutralisation or coercion of elite offenders was the traditional pragmatic use of space in Roman practices of custodial punishment. Over centuries, Roman penal administration had conveniently and creatively exploited pre-existing institutions for government purposes, most emblematically islands at the one end of the social scale and imperially owned mines and quarries at the other. Such institutions could be tailored to the desired degree of severity of a penalty by choosing what were deemed more or less harsh exponents of each type. However, while this was a sophisticated approach to non-lethal punishment, little attempt was made to actively influence or change the perceived inhospitality or pleasantness of a place, of which the custody of convicts was in any case only a secondary function. Sending exiles to the margins of the empire equally relied on cultural assumptions about their nature as the edge of the civilised world that was shared both by those imposing the penalty and those suffering it.1 For late antique lawgivers and judges followed that residence among ‘barbarians’ or ‘pagans’ also automatically meant separation from society, without the need to provide for concrete physical confinement. When such security considerations were thwarted by events of disorder, or when disorder was anticipated straight 1

The ‘barbarian’ nature of their surroundings was a constant theme in John Chrysostom’s complaints about his exile and in some of John’s followers, sent to ‘barbarian regions’ (βαρβαρικαῖϛ ζώναιϛ) in Arabia and southern Egypt; Palladius, Life of John 20 (SC 341:396) and on John’s complaints see Vallejo Girvés (2007a) 135.

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away, again pre-existing institutions were employed to impose more control, in particular prisons, military fortresses, houses or buildings connected to churches. Even fortress banishment came into existence not so much as a strategic plan, but as a pragmatic use of existing infrastructure at provincial level, which became ever more available wherever judges also held military competences. We also must approach the late antique evidence on forced clerical ordination with similar considerations, for it was a form to address wrongdoing that was driven by events on the ground, the granting of church asylum in individual cases, and only subsequently endorsed by the imperial authority. This attitude to the administration of punishment in the public sphere betrays a conservatism that was similar to what we can observe in the domestic sphere. In the late Roman household, and the Roman household generally, more closely-knit than the Roman state, punitive methods often aimed at facilitating social reintegration, rather than expulsion or elimination, while at the same time cementing social hierarchies of honour. Forms of confinement – ranging from female seclusion to full imprisonment in the case of slaves – were part of such methods, although tailored to the social status of offenders. Yet, they equally did not lead to purpose-built prisons or to the active ordering of space for the sake of punishment only. Domestic punishment was aligned with the already existing functions of various spaces in the late Roman household, such as bread-making. In this respect, inspired by Christian penitential discourses, thinkers about the monastic household were most innovative.2 While both in the public realm and in the household the choice of punitive spaces certainly followed considerations about the function of punishment, it was only in monastic rules that we observe a systematic attempt to organising punitive spaces, and time spent in such spaces, to facilitate a ‘learning’ process. It should be noted, however, that the stylisation of such spaces as ‘prisons’ was not fully developed in monastic writing until the seventh century. In addition to the pragmatic uses of space, holding convicted criminals in public prisons straight away was perhaps seen as ideologically undesirable due to the close proximity of prisons to the urban community of the ‘rightful’. For lower-rank offenders, removal to solitary quarries or mines, or in fact brothels, underground workshops or sewers, made this point of segregation succinctly and also aided security (as well as, possibly, some economic aims). Yet, confinement of high-ranking convicts, even where it was seen as necessary in terms of neutralisation or coercion, was 2

See also Flint (2000) 149–150.

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problematic, because the boundaries to imprisonment were easily blurred and parallels to the public prison often drawn. Confinement in the public prison, but also in other environments that had an element of downgrading, outcasting or defiling, such as custodia militaris, or indeed places of forced labour, was widely considered a measure that unduly affected the body and hence unacceptable for people of honour, whether in coercive, custodial or penal form. Imprisonment, and certainly informal imprisonment, always had the air of an arbitary use of power about it. This was true for moral commentary throughout the Roman period. The spread of Christianity, in turn, drawing on the history of persecution and the authority of scripture also often transmitted an image of the public prison as a symbol of worldly injustice that stood in stark contrast with the demands of Christian rightfulness and charity. The following and last part of this study will trace how, in the course of the fifth and sixth centuries, the Roman state came to extend its use of already existing, non-state institutions for the administration of punishment to monasteries. In many ways, confinement in a monastery was a flexible punitive option that allowed for expressions of clemency or severity, but also, crucially, for neutralisation and coercion, and for the connection of public punishment with the expectations of Christian penance. Furthermore, as we have seen in Chapter 8, ascetic discourse obscured the distinction between exile and prison, which were embraced as two interrelated ways to describe the demands of a rigorous Christian lifestyle. In this context, both the image of the martyrs’ prison and of the present-day prison of the common criminal were also invoked as positive invitations for Christians to reflect upon sin and hence lay the groundwork for salvation. This new way of thinking about prisons made imprisonment, at least as a mental attitude, fit for the elite. As we shall see now, however, also monastic confinement had very pragmatic beginnings, and was far from uncontroversial.

part iii

Prison and penance

chapter 9

Monastic confinement and ecclesiastical justice

To someone who perseveres in guilt, retribution (vindicta) is rightly due, but pardon (venia) should be granted to those who return to their senses (resipiscentibus). For, as the former case usually provokes anger against him, so the latter usually promotes concord due to its utter faithfulness. As the importance of the priestly office was later restored to your mind, where formerly neglect had incited you, and suspended your Fraternity from fellowship and communion with Maximus, in a way that you could not even suffer to be content only with separation (segregatio), but also deplored your deeds by withdrawing to the enclosure (claustra) of a monastery, therefore do not doubt that you are received back into our favour and communion. For, as much as your guilt had before offended us, so much has your penance turned us milder (mitigavit).1

In December 597, Gregory, bishop of Rome, wrote to his colleague, Sabinianus of Zara in Illyria, congratulating him on his recently completed monastic penance. The context of this letter was the election of Maximus as archbishop of Salona four years earlier, which Gregory had opposed on the grounds of the alleged immorality of this candidate. Gregory had excommunicated Maximus, but the archbishop did not back down, mainly because the Illyrian bishops, including Sabinianus, and the emperor supported him. As a result, Gregory also excommunicated the bishops who had ordained a candidate without his consent. Yet, in 597 Sabinianus withdrew from communion with Maximus, agreed to enter a monastery to do penance and in what must have been a matter of 1

Gregory, ep. 8.11 (597) (CC 140A:529): sicut perseveranti culpae debetur iure vindicta, ita resipiscentibus est venia concedenda. Nam ut res illa contra se merito iracundiam excitare, si haec in sua prorsus dilectione solet concordiam propagare. Et ideo quia fraternitatem tuam a consortio et communione Maximi, ubi te prius neglectus impulerat, in tantum postea gravitas sacerdotii ad animum reducta supendit, ut eius sola nullatenus patereris esse segregatione contentus, nisi et in monasterii te claustra recipiens dudum commissa defleres, eapropter in nostra te gratia ac communione receptum esse non dubites; nam quantum nos prius culpa tuae caritatis offenderat, tantum poenitentia mitigavit. On the episode see Richards (1980) 203–207.

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months was reconciled with Rome. In his letter announcing this decision, Gregory contrasted the concepts of punishment and pardon and their motivations, anger and mercy. At the same time, Gregory did not believe that the two concepts excluded each other, but that ideally they should come in chronological succession. Pardon was justified if the period of punishment effected acknowledgement of guilt, which Gregory represented as a form of mental ‘healing’, expressed in taking up penance. Penance had the potential to mitigate the severity of the judgement. The ecclesiastical penalty of excommunication was hence retributive in character, but was reversible for those who did not choose to persevere in their transgression. What is most remarkable about Gregory’s lucid take on Christian principles of punishment, detailed above in Chapter 3, is his insistence that it was Sabinianus’ place of penance, a monastery that had particular potency in ensuring his return to favour. Sabinianus of Zara was not the only sixth-century sinner undergoing a period of monastic penance. By the time of Gregory the Great it was a widespread phenomenon, affecting clerics, lay individuals and ascetics alike. As we shall see in this chapter, monastic penance was a measure that could be adapted to a variety of situations. In the case of Sabinianus of Zara, whose withdrawal to a monastery Gregory represented as voluntary, but who had of course been pressurised by the ecclesiastical penalty of excommunication, it cleared a path for his social reintegration. Yet, bishops also imposed or tried to impose a more repressive form of confinement in monasteries to neutralise troublesome offenders, to remove a source of conflict and shame for the Church or for victims of mismeanor, or to facilitate penance of those considered most in need of pastoral care.2 Monastic confinement could, under these circumstances, be presented as superior to a public penalty, as more in tune with the principles of Christian emendatio. Yet, it was also a way to straddle the purposes of ecclesiastical and public jurisdiction, which in the sixth century increasingly came to be concentrated in the hands of local bishops. It is therefore important to start this part of our study, on the origins of the public penalty of monastic confinement, with an analysis of its role in ecclesiastical justice, which, as we shall see in the next chapter, would have a considerable influence on its transformation into a public penalty.

2

Part of this chapter draws on Hillner (2011), although it attempts to put Gregory into the context of other bishops’ uses of monastic confinement more comprehensively.

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Hospices, monasteries and ecclesiastical forms of confinement As we have seen in Chapter 3, Christian tradition had long claimed the right of bishops to judge each other, their subordinate clerics, the ascetics and the laity in their diocese on ‘ecclesiastical matters’, correct discipline and doctrinal orthodoxy. The acceptance of this right by the late Roman state cemented the authority of the bishop as a judge (or a bishops’ council if a culprit was a bishop himself). ‘Ecclesiastical matters’, however, was a flexible term that overlapped with ‘sin’ and in practice also led to bishops trying cases involving public crimes, in particular where they concerned sexual misconduct or violence committed by or against clerics. While these had been in theory excluded from their jurisdiction, Justinian allowed bishops to conduct criminal trials as long as they collaborated with public judges regarding the imposition of penalties. Yet, the success of ecclesiastical jurisdiction was not only aided by official recognition, but also by bishops’ access to and control of spaces that could be used for preventive custody of the accused on the one hand and for the administration of punishment on the other. Acknowledged judicial competences of the bishop regarding the moral conduct of his clerics and his growing role as a civic leader meant that a further type was added to the variety of legally allowed ‘private’ confinement (vincula privata) in the late Roman world that we discussed in Chapter 6. In this context, we observe bishops integrating spaces of religious institutions into their administration of justice. Particularly in the fourth century, a bishop’s attempt to imprison subordinate clerics or religious opponents was usually represented as collaboration with the state, where victims were either placed in public prisons or guarded in house arrest by sympathetic state officials.3 While such depictions often served, as we have seen in Chapter 8, to emphasise the wickedness of such actions and the disregard for the Christian past and of the obligation of charity, they also reflect bishops’ lack of their own spaces and personnel to effectively and routinely enforce custody at this time without the help of state authorities. To be sure, some bishops imprisoned on their own accord (or were accused of doing so), such as Antoninus of Fussala, who some time before 421 had ordered his estate steward to put a man in custodia privata to enforce the sale of the man’s farm, which he later claimed as custody for the sake of investigating a crime (an action that he

3

See above Chapter 8.

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clearly thought would be accepted as lawful).4 Such incidents were, however, down to an individual bishop’s access to the appropriate means of incarceration (buildings that could be isolated, dependents who could act as guards), as a result of their personal resources or power, rather than their office. Soon, however, more systematic tools emerged, relative to bishops’ growing influences in civic, ecclesiastical and monastic life and the expansion of church hierarchy and wealth. At times, we encounter episodes of imprisonment that occurred in a bishop’s residence.5 More often, however, and particularly in the Eastern Mediterranean from the fifth century on, institutions for the care of the poor (diaconiae, xenodochia, nosokomeia, gerokomeia) appear as places of preventive or coercive custody ordered by a bishop. For example, the two Constantinopolitan monks Basilius and Thalassius complained in a petition to Theodosius II that the bishop Nestorius had commanded ‘the faithful’, those who opposed his contentious teaching on the nature of Christ, to be confined and beaten in a dekanikon of the city.6 This place, whose name derived from the Greek term for ‘to serve’ (diakonein), probably referred to one of the many charitable institutions in the city providing food, shelter, bathing facilities, healthcare and burial.7 Dekanika were also used as places of detention and coercion during the campaign by the patriarch of Constantinople John Scholastikos against the Miaphysites in the 570s, as reported by John of Ephesus. In particular, John mentioned the hospice of Eubulus, which had been founded under Justin I near the Hagia Sophia, probably by an aristocratic patron of the same name.8 At the Council of Chalcedon in 451, the Alexandrian deacon Ischirion brought a charge against his bishop Dioscorus for having confined him at a hospice 4

5

6 7 8

Augustine, ep. 20* (CSEL 88:110). See also the story of Arsenius, the Meletian bishop of Hypsele, who was allegedly imprisoned in a hut on order by Athanasius (from which he, however, managed to flee): Sozomen, Ecclesiastical History 2.25 (SC 306:340); and the catholic bishop of Hippo Diarrhytus, who apparently had kept a Donatist rival in jail for years: Coll. Carth. 1.142 (PL 11:1318A). John of Ephesus, Ecclesiastical History 3.1.14; 3.2.7; 3.2.42 (CSCO 105, 106:14, 9; 65, 46; 109, 89): John Scholastikos imprisoned in his palace; Gregory the Great, epp. 3.6 and 3.7 (592; CC140:151–152, 154): the bishops of Prima Iustiniana and of Larissa held a colleague, Hadrian of Thebes, charged for embezzlement, first at the house (domus) of the former, and than of the latter. Sometimes writers were unspecific about place, see John Moschus, pratum spirituale 108 (PG 87.3:2969): a cleric from Samos was accused for calumny against his bishop and put in the prison (ἐν τῆ̣ ϕυλακῆ̣ ) ‘where the bishop usually includes and guards guilty clerics’ (ὅπου εἰώθασιν οἱ πταίοντεϛ κληρικοὶ ἐγκλείεσθαι καὶ ϕύλάττεσθαι). ACO 1.1.5:8: ἐν τῶ̣ δεκανικῶ̣ τυπτηθέντοϛ. On diaconiae in Constantinople see Janin (1969) 551–552; Magdalino (1990) 178–188. John of Ephesus, Ecclesiastical History 3.2.4 (CSCO 105, 106:58, 41). For the possible identity of Eubulus see PLRE iiib, Eubulus, 454. On John’s actions against Miaphysites, supported by emperor Justin II see further below Chapter 10.

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(xenon) for lepers without charge and for no other reason than having been loyal to Dioscorus’ predecessor Cyril.9 He also complained that he had been maltreated by a band of thuggish ‘ecclesiastics’, which may be a reference to the infamous parabalani, hospital attendants who were enrolled in the clergy of the church of Alexandria and frequently doubled as the bishop’s bodyguard and agents, as did the dekani for the bishops of Constantinople, or the fossores for the bishops of Rome (literally ‘grave diggers’, but connected to the bishop’s charitable enterprises and entrusted with transporting the bodies of the sick and dead).10 In Ischirion’s case, the reference was to an institution designed for the care of the sick, as it was, probably, in a deed of surety from mid-sixth century Oxyrhynchus, which promised to return a freedman of the church of Oxyrhynchus, who had stolen gold from the church, into the custody of its nosokomeion.11 Even though this is not clearly spelled out, one of the charges levelled at John Chrysostom at the Synod of the Oak in 403 may also have been connected to the use of an infirmary as a place of imprisonment, for John was accused of having imprisoned a monk in his entourage ‘along with the possessed’.12 Other bishops, such as the banished Philoxenus of Hierapolis’ host at Gangra or Philippopolis in 519, used xenodochia, hospices for strangers, as places of detention.13 From the surviving evidence of such establishments it is not entirely clear how and if the various types attested differed from each other, either in the format of assistance they offered or in their administration. There is some reason to believe that xenodochia and nosokomeia were loosely considered synonymous (both provided hospitality and medical aid for individuals without other patronage opportunities) and that diaconiae or dekanika emerged as an umbrella term for institutions dedicated to the care of the poor from the fifth century on.14 While many of these centres of assistance had lay or monastic origins, bishops seem, on the whole have been able to centralise control over them over the course of the fifth and 9 10

11 12 13 14

ACO 2.1.2:19. On the parabalani, whose name derived from the phrase ‘those who risk their lives [nursing the sick]’, and who existed elsewhere in Egypt, e.g. at Oxyrhynchus see Haas (1997) 235–238. On the fossores and dekani as ecclesiastical bodyguards see Jones, A. H. M. (1964) 911. P.Oxy XIX 2238 (551). For comment see also above Chapter 6. SC 342:102: καὶ ἐσύρη καὶ μετὰ τῶν δαιμονώντων ἐσιδηροϕόρησει. Philoxenus, Letter to the Monks at Senoum (CSCO 232. Scrpt. Syr. 99:76, 77–78). See CJ 1.2.15 (Zeno, without year): τὰ δἑ αὐτὰ καὶ ἐπὶ ταῖϛ τῶν καλουμένων ξενοδοχείων ἤ νοσοκομείων ἤ πτωχείων οἰκοδομεῖσθαι. For the difficulty to distinguish between the functions of xenodochia and nosokomeia see also Crislip (2005) 102; Mayer (2009) 92–96. On diaconia as an umbrella-term for the service to the poor and increasingly the according institutions and their buildings (first in the East, later on in the West), see Marrou (1940) 132–136; Dey (2008) 403, 416.

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sixth centuries.15 At times, this was the result of direct intervention. John Chrysostom established a number of nosokomeia as bishop of Constantinople, with salaried workers and allocated priests, perhaps as a direct attempt to wrestle control over such institutions from urban monks.16 At the Council of Chalcedon, it was stipulated that all urban beggars had to register with their bishop, thus effectively placing their care and associated institutions under episcopal authority, which was confirmed by imperial laws prescribing the bishop’s oversight of and consent to foundations.17 More important than these legal frameworks were, however, socio-economic developments which left the late Roman bishop as the predominant patron of the urban poor, even though, as we shall see further below, monks continued to be involved in charitable institutions.18 They also gave bishops access to facilities which, by all accounts, had the quality of prisons. We know very little of late Roman hospices in archaeological terms, but their use as places of custody and coercion suggests that they were considered safe and controllable, which, most probably, was in the main part a result of the financial and social dependency of their staff on the local bishop.19 Although diaconiae, particularly with reference to Constantinople, have sometimes been called ‘church prisons’, it needs to be stressed that this was not their only, or indeed predominant, purpose.20 Similar to many other contexts of both public and private imprisonment in the late Roman world, bishops used pre-existing spaces, and their power to imprison as well as the forms of imprisonment changed once appropriate spaces became available to them. When bishops incorporated hospices and their staff into the church hierarchy or founded such institutions themselves, 15

16

17

18

19 20

Particularly in Egypt hospices had monastic beginnings, see Crislip (2005) 138 and passim; in the West they seem to have been predominantly lay aristocratic foundations, see Stasolla (1998) 5–46. Palladius, Life of John 5 (SC 341:122); see Mayer (2009) 95; on John’s motivations see Caner (2002) 197. Another bishop who busied himself in this regard was Basil of Caesarea, who may have been John’s model, see Hiltbrunner, Gorce, Wehr (1972) 110–112; Crislip (2005) 103–120; Rapp (2005) 225. Council of Chalcedon (451), c. 11 (ACO 2.2.2:36); CJ 1.2.15 (Zeno, without year); see Caner (2002) 239. See Dey (2008) 339–400 with reference to the Roman church. In Constantinople one of the most ancient hospices, founded by the monk Sampson in the fourth century, by the sixth century was firmly under church control. The patriarch Menas, elected in 536, was a former xenodochos of this institution; see Miller (1990) 101–136. On the recruitment of the parabalani from the urban poor see Haas (1997) 237. The use of the term ‘church prisons’ is particularly prevalent in older literature (inspired by a late nineteenth-century idea of the Christian Church as a humanitarian force in the development of modern prisons), see e.g. Kober (1877) 32–33; Krauß (1895) 259–261; but see also Krause (1996) 54. We do not see, yet, a widespread use of routinely purpose-built prisons in or adjunct to bishop’s palaces, as we do in the later Middle Ages; on these see Dunbabin (2002) 144–158; Geltner (2008a) 89.

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they did so as an act of charity for the poor, rather than with an eye on the role they could play in the administration of ecclesiastical justice (although the latter might also be styled as ‘love for the poor’21). Yet, the subsequent use in particular of infirmaries as places of imprisonment could serve ideological purposes, in a similar way as the prescription of the infirmary as a place of segregation of an unruly brother in the Rule of Pachomius did.22 We should not forget that many late antique bishops, like John Chrysostom, where intrinsically familiar with monastic traditions. Sending a culprit to the infirmary sent out a message about the offender’s sinfulness, disease, humiliation and healing, and could therefore be framed as charity itself. Even when bishops began to purpose-build prisons for their use, they foregrounded the act of charity. In 539, Paul, the bishop of Gerasa, constructed a prison out of church funds, with a distinct space for the accused (ὑπαίτιοϛ), called ϕρουρά, and one for the condemned (κατάδικοϛ), called ϕυλακή, and praised it in an inscription as a benefit to the city.23 The building was probably to the east of the cathedral, which, intriguingly, corresponds to the place where in later medieval monasteries often both the monastic infirmary and the monastic prison were located, visibly expressing the link between disease and sin and capitalising on an ancient spiritual association of the east with healing.24 It is therefore possible, and would fit the remaining evidence, that Paul’s construction was built into a larger charitable complex that also included facilities for the care of the poor. The hospice of Eubulus in Constantinople, built to the north-east of the Hagia Sophia, at least contained a section that could clearly be cordoned of as a detention centre in the later sixth century.25 Again a space of a different function pragmatically doubled as a prison, but its use also gave meaning to the imprisonment. Paul of Gerasa’s inscription reminds us that by the mid-sixth century, as confirmed in Justinian’s legislation, bishops were fully-fledged judges.26 They did not just provide charity for prisoners anymore, but they were effectively running the judicial system in some places. What this means is that Paul felt confident to use terms that traditionally had a negative connotation in classical and Christian discourses on the abuse of power (ϕρουρά, ϕυλακή) and to turn them into an expression of humanity. Complaints about abusive imprisonment by a bishop, which still arose in this period, did not so much question the lawfulness of bishops’ prisons, as 21

22 25

See for the versatility of the phrase, apt to encompass and justify any late antique episcopal activity, Brown (2012) 481–502. 24 See above Chapter 6. 23 Gatier (1985) 300–305. Cassidy-Welch (2001) 40–41. John of Ephesus, Ecclesiastical History 2.4 (CSCO 105, 106:58, 41). 26 Brown (1992) 153.

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the lawfulness of the act of imprisonment in individual cases, where it affected the innocent, orthodox or people deemed of honour. In such cases, emphasis was put on the parallels of their experience with that of inmates in the public prison or worse. When John of Ephesus described his stay in a cell at the hospice of Eubulus in the 570s, he lamented frost, thirst, illness and isolation, which even separated him from those who could have helped him. In addition to these rather conventional forms of agony, John elaborated on a detail that drew on the character of his actual surroundings. He was, indeed, tormented by lice, fleas, flies and mice, which the filthiness and smell of the hospital and the presence of the sick attracted, a peculiar affliction that would have been absent (at least to this extent) in the public prison. Nonetheless, like Job John faced these plagues with steadfastness of mind and humility and was rewarded with the grace of divine vision.27 John’s account, such as that of many confined Christian writers before described in the previous chapter, served to discredit the legitimacy of a religious opponent and to underline John’s ascetic credentials, but it also gives us a unique, albeit larger-than-life insight into this form of imprisonment. It should not mislead us to assume, however, that John would not have supported confinement in hospices, and imprisonment in general, in contexts where to his mind Christian justice was better served. During Justinian’s pagan persecution in Asia minor in 542, whose orchestrator John had been, ‘hospitals of the sick’ (τῶν ἀρόστων ξενȏ[ν]α) were used as places to temporarily send obstinate non-believers, as an inscription from Sardis attests. It is tempting to bring these into connection with the churches and monasteries that John allegedly ordered to be built in the course of this enterprise.28 The same attitude towards the usefulness of imprisonment applies to any other Christian authority in this period, although we can note that the terms carcer or δεσμωτήριον were never used with reference to bishops’ places of imprisonment. A distinction continued to be made with the public prison, either for practical reasons, because it of course still existed (so the bishop’s prison could only be ϕυλακή, a private form of confinement), or to stress the superiority of ecclesiastical justice over the inadequacy of public justice, whose most emblematic sign the public prison was.29 27 28

29

John of Ephesus, Ecclesiastical History 2.4–2.6 (CSCO 105, 106:58–65, 41–46). Sardis. Greek and Latin Inscriptions, vol. 7.1, n. 19 (eds. W. H. Buckler, D. M. Robinson (Leiden: Brill, 1932), 43–44). For comment on the inscription see Schneider (1966) 284–289; for John’s involvement in Justinian’s anti-pagan campaigns see Ashbrook Harvey (1990) 99–100. See e.g. Gregory the Great who, even though as we shall see below imposed imprisonment, called the public prison nefas: ep. 1.59 to Gennadius, patrician and exarch of Africa (CC 140:70).

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Assuming that his building was part of a hospice, Paul of Gerasa’s inscription also raises a further question about the function of such establishments not only to provide preventive or coercive custody, but also as a punitive space for the ‘condemned’. Most of the sources we have examined so far described the former. Where we hear of punitive confinement following a bishop’s or synod’s sentence, it usually, as we shall see in more detail below, concerned confinement in a monastery, which was also included in ecclesiastical law. Yet, it would be too rash to conclude two neat stages in ecclesiastical criminal procedure of preventive custody in a hospice, followed by punitive confinement in a monastery. To begin with, hospices are attested as places of punishment as well, in the context of the pagan persecutions at Sardis, as we have just seen, and in a further law by Justinian.30 In the former case, Carl Schneider has argued that the procedure was designed to increase the staffing levels of such charitable institutions in Sardis and elsewhere, which, due to their great number, may have suffered from recruitment shortages.31 Perhaps alongside such practical considerations, however, the penalty was intended to underline the separation of a convict from the ‘pure’ community in line with the Christian rhetoric of the time. Its temporary nature suggests that it was also hoped the period of internment and service to the sick would compel the convict to return to society ‘healed’ and converted. Furthermore, where sources talked about confinement in a monastery, it can not be excluded that assignment to a charitable institution such as a xenodochium was meant. The modern distinction between charitable institutions and monasteries may indeed often be artificial and driven by modern views of the late antique and medieval monastery as an essentially contemplative community. As Henrik Dey has shown recently for early medieval Rome, the monasteries of this city at least were heavily involved in the care of the poor during this period, to the extent that the terms diaconiae, xenodochia and monasteria came to be used as synonyms by the seventh century.32 Even if this cannot be translated equally to other contexts – in sixth-century Constantinople charitable institutions seem to have been more tightly connected to the urban clergy – hospital staff’s ascetic lifestyle was also emphasised elsewhere.33 30

31 33

NJust 79.3 (539) allowed bishops to punish executores (a judge’s messengers) who compelled ascetics to appear before public court with confinement in their decanica. 32 Schneider (1966) 284–289. Dey (2008) 411–422. John Chrysostom’s personnel at the hospices he founded were to be celibate, see Palladius, Life of John 5 (SC 341:122). On the involvement of monasteries with the hospices of Constantinople see Hatlie (2007) 147, who argues that it was a particular strategy of the Miaphysite monks that flooded the city under Justinian to turn their attention to the care of the urban poor, while the established Chalcedonian houses had neglected this aspect of monastic life.

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Yet, even where we can postulate blurred institutional lines between ascetic communities and xenodochia, there is reason to believe that assignment to a hospice proper may have been limited to offenders of lower rank. When the magister militum Amantius came to Antioch in 555 to coerce orthodox Christianity in the city, he sent some people condemned of heresy to serve in xenodochia, some he placed into monasteries and some he sent into exile. Internment in monasteries, ‘for education’, was reserved for ‘those who called themselves clerics’, the heretical leaders, as the Life of Symeon Stylites reporting the episode explained.34 Proximity to the poor and sick was deemed dangerous and disreputable, which may have been considered unfit for those of higher rank (which these ‘heretical’ clerics may well have been), as can be seen from what we know about the social origins of late Roman hospital attendants mentioned above. While the episode described a public government action (although no doubt inspired by contemporary ecclesiastical practices), such class-based distinctions may well have also underpinned choices of punitive spaces by late Roman bishops. Confinement in the more enclosed and contemplative part of a stable monastery certainly started out as a measure to treat higher ranking individuals and particularly clerics deemed in need of penance. Monastic confinement as a penalty for clerics was laid down in church council legislation for the first time in 506 at the Council of Agde, in southern Gaul, presided over by Caesarius of Arles.35 The council stipulated that a bishop, priest or deacon who had committed a capital crime, perjury or falsified a document be deposed and placed in a monastery, where he was to receive communio peregrina for the rest of his life, possibly a form of Eucharist to be received at a distance from the rest of the (monastic) community.36 The canon (but not the detail about communio 34

35

36

Life of Symeon Stylites 164 (ed. P. van de Ven (Brussels: Société des Bollandistes, 1962) 146): καὶ ἄλλουϛ κληρικοὺϛ δῆθεν ἑαυτοὺϛ ὀνομάζονταϛ ἐν μοναστηρίοιϛ κατηχηθῆναι παραδέδωκεν. On the council see Klingshirn (1994) 97–104; Halfond (2010) 42. There are a number of allegedly earlier papal stipulations of monastic confinement for deposed bishops (Boniface I, Decreta c. 6 (PL 20:790)), priests who committed fornication with nuns (Coelestinus, Gratiani Decretum 30.1.9) and heretics in Rome (Siricius and Innocent; LP i:216, 220). The first two are regarded as later decretal forgeries, which, nonetheless, attest to the attractiveness of the penalty during the Middle Ages. See on both: Jasper, Fuhrmann (2001) 40–41, with fns. 170–171. In the case of the entries in the Liber pontificalis, the sixth-century author probably projected a common penalty of his own time to late fourth-century Rome, which, in reality, did probably not yet have the monastic landscape, or papal control over it, envisaged here (on the haphazard origins of monasticism in fourth-century Rome see Jenal (1995) 28–93; the first male communities date to the mid-fifth century). Both Siricius and Innocent likely had the heretics expelled from the city with the help of the public authorities. On the meaning of this term see Mathisen (2006) 49–54.

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peregrina) was taken up by the Council of Épaone held in the newly constituted kingdom of Burgundy in 517 and amended with the additions of adultery at the Frankish Council of Orléans in 538 and conspiracy against superiors at the Visigothic Council of Narbonne.37 Another Frankish council at Macon added that widows of subdeacons, acolytes or exorcists who dared to remarry should also be sent to monasteries for life.38 These canons used the term retrudere to denote the act of consignment to a monastery, drawing on the conventional legal terminology of exile or imprisonment that stressed physical separation from society. This was hence a form of punishment, akin to excommunication (although not always technically so). At the same time, all canons stressed that the purpose of monastic confinement was the performance of penance.39 It is perhaps not a coincidence that the first ecclesiastical legislation for monastic confinement of criminal clerics (and their families) originated from an area where Roman rule had collapsed in the course of the fifth century and bishops in consequence had assumed extensive administrative and judicial roles.40 This development strengthened bishops’ claims to deal with the transgressions of their personnel and to integrate the monastery into the administration of episcopal control. Although some of the offences the Gallic church councils dealt with were also public crimes, the lay rulers who monitored and in some instances convened these councils seem to have accepted monastic confinement as a just redress, at least where the wrongdoings had been committed by clerics.41 Yet, the Council of Agde did not single-handedly create the penalty. Rather, it ratified a practice common in Southern Gaul, and already mentioned in one of the earliest monastic rules from the region, the fifth-century Rule of the Four Fathers, which may have been produced for or by the monastic community on the island of Lérins off the coast of Cannes, one of the driving forces of coenobitic monasticism in the West.42 The rule stipulated that clerics were not to live in the monastery unless they came there ‘to be healed

37

38 39 40 41

42

Council of Agde (506) c. 50 (CC 148:225, but see also the editor’s reservation on the authenticity of the passage); Council of Épaone (517) c. 22 (SC 353:112); Council of Orléans III (538) c. 8 (SC 353:238); Council of Narbonne (589), c. 5 (Vives 147). Council of Macon II (581–583), c. 16 (SC 354:476). For the legal origins of the terms retrudere and detrudere see above Chapter 7. For bishops’ jurisdiction in post-Roman Gaul see James (2003) 25–46. On the involvement of post-Roman rulers with sixth-century Gallic church councils in their territory see Halfond (2010) 17. On the rule and the location of its production at or under the influence of Lérins see Dunn (2003) 85–90 (who also deals with objections).

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[from their sin] by the medicine of humility’.43 From the fifth century on, the development of the church in southern Gaul was closely influenced by Lérins and its monastic principles, from where many of the higher ranks of the clergy originated, including Caesarius of Arles.44 While his ascetic instincts may have had a role to play in the transformation of a penitential practice of clerics into an ecclesiastical norm, we can assume that the practice was something that many bishops attending the council at Agde were familiar with.45 Also in the Eastern Mediterranean we find prescriptions of clerics’ monastic confinement in contexts of tight connection between higher clerics and the monastic milieu, for example in the socalled Canons of Rabbula, bishop of Edessa (411–435) and a former monk. Rabbula was an advocate of coenobitic monasticism in Syria and a reformer of his clergy along ascetic principles. His instructions included sending the Bnay or Bnat Qyama, a rank of clerics who had taken a vow of celibacy and fulfilled choir duties and care for the poor to a monastery if they had sinned, for penance, as long as it was deemed right.46 Overall, bishops with a monastic background may have had both access to monastic space and an appreciation for its possibilities regarding the administration of clerical discipline, even before the Council of Chalcedon established the legal subordination of the monastery (particularly regarding monastic property, choice of abbot and consecrations) to the local bishop. Nonetheless the latter gave an increased legitimacy to the practice of clerical monastic confinement.47 Before the Council of Agde, written regulations of ecclesiastical penalties had amounted to, in the case of clerics, deposition, and, in the case of lay people, excommunication.48 Official stipulation of confinement in a monastery, particularly for higher ranking clergy, was a significant development, even if it just normalised established practices. Essentially a custodial penalty, it deviated from both traditionally Roman and Christian objections against forms of punishment that affected the body 43

44 45

46

47

48

Rule of the Four Fathers 4.14 (SC 297:202): Nulli permittatur clerico in monasterio habitare, nisi ei tantum quem lapsus peccati ad humilitatem deduxit et est vulneratus, et in monasterio humilitatis medicina sanetur. Dunn (2003) 82–83; on Caesarius’ relationship with Lérins see Klingshirn (1994) 23–32. This is also suggested by the case of Contumeliosus of Riez in 532, who willingly agreed to retreat to a monastery for penance. On this case see further below. Vööbus (1988) 73 (canon 29). On the Bnay or Bnat Qyama see also Bowersock, Brown, Grabar (1999) 344. Council of Chalcedon (451), c. 4; 8; 24 (ACO 2.2.2:34, 35, 39). For the effect of Chalcedon on monasticism in the West see Ueding (1953) 569–676; Rosenwein (1999) 36; Dunn (2003) 96–97. On the range of ecclesiastical penalties in the fourth and fifth centuries see Saint-Roch (1991) 96–100; Dossey (2001) 100. See also above Chapter 3.

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of elite offenders. Its appeal must therefore have lain in the potential of monastic confinement to fulfil expectations of Christian justice, quite beyond the simple fact that bishops increasingly had access to monastic space. We will now turn to an analysis of these expectations.

Monastic confinement as an ecclesiastical penalty: neutralisation, protection and salvation Some of the most detailed evidence for the ecclesiastical use of monastic confinement comes from sixth-century Italy and the Roman see, especially from the pontificate of Pelagius I (556–561) and Gregory (later called ‘the Great’ (590–604)), who frequently either ordered monastic confinement themselves or instructed a fellow bishop to do so, mostly a subordinate one in Italia suburbicaria. Both bishops, as is well known, also had ascetic interests. Pelagius, as we have seen in Chapter 8, had prepared a translation of the Apophthegmata while still a deacon, providing the Roman church with a treasure of Eastern ascetic exempla, which Gregory indeed may have taken as inspiration for his Dialogues celebrating the lives of Italian holy men.49 Gregory, of course, was also the first Roman bishop previously to have led an ascetic life and an avid founder of monasteries in both Rome and Sicily.50 We should not assume, however, that either Pelagius or Gregory imposed monastic confinement more frequently than previous or contemporary bishops. Both bishops, and particularly Gregory, left us unusually large letter collections, which we simply do not have for other contexts. Some of Gregory’s letters mention the use of monastic confinement by other Italian bishops, and the ecclesiastical legislation on monastic confinement discussed above shows that the penalty was well established already at the beginning of the sixth century.51 To be sure, in contrast to earlier bishops, and probably also to some of their contemporaries elsewhere in the West, Pelagius and certainly Gregory could base their use of monastic confinement not only on custom and previous church council canons, but also on the incorporation of monastic exile as a penalty into imperial law under Justinian, which we will discuss in the next chapter.52 By the time of Gregory Justinian’s Novels were circulating widely in Italy 49 51

52

Straw (1988) 14. 50 Richards (1980) 32; Markus (1997) 10. Leo of Catania: Gregory, ep. 4.34 (CC 140:254); John of Ravenna: ep. 5.19 (CC 140:287–88); John of Syracuse: ep. 11.24 (CC 140A:895). On the transmission of Justinian’s Novels to the West and its slower dispersion beyond the Alps due to the Three-Chapter-Controversy see Kroll (1912) v–xviii. On the Novels detailing monastic exile see in detail below Chapter 10.

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and Gregory seems to have known this legislation well.53 As we shall see, however, knowledge of imperial law did not mean that either Pelagius or Gregory always adhered to it faithfully. Rather, both applied or disregarded it according to circumstances and whether it fitted the agenda of ecclesiastical justice.54 This means that imperial laws on monastic exile did not create the penalty for the bishops of Rome, but gave bishops an additional justification of the validity of their jurisdiction and the sentences they customarily pronounced. It is therefore legitimate to draw on the cases handled by Pelagius and Gregory as a window into the ecclesiastical practice of monastic confinement in the sixth century on the whole, even though, as we shall see, particularly Gregory shaped it in significant ways. The extant evidence suggests that both Pelagius and Gregory employed the penalty of monastic confinement flexibly, either to neutralise the spread of undesired doctrine, to protect from public law, to safeguard the honour of those involved in sinful behaviour or to satisfy victims of social misconduct. It could hence be used to express severity or leniency, depending on the circumstances. To begin with, Pelagius recognised the potential monastic confinement provided for the solution of religious conflict. He deposed a schismatic bishop, Paul of Forum Sempronii (Fossombrone in Umbria), and sentenced him to monastic confinement on an (unnamed) island for his refusal to subscribe to the condemnation of the Three Chapters decided at the Council of Constantinople in 553 and conspiring with further bishops under Pelagius’ jurisdiction.55 To emphasise the severity and legality of the measure, the bishop of Rome used the technical legal term relegatio. Paul was to be taken to the island clad in iron (ferro vinctum). Yet, monastic confinement could also be used to restore church order in a discreet way, an important issue for Pelagius, keen to re-establish trust among Italian bishops after his own controversial subscription to the Council of Constantinople and subsequent appointment to the Roman see.56 In a letter to the bishop of Chiusi, whose deacon had formed an illicit relationship with a household slave including the fathering of children, he advised his colleague to transfer (tradatur) the woman, called Micina, into 53

54 55

56

On Gregory’s knowledge of public law see Damizia (1948) 195–226, in part. 223–224. Justinian’s Novel on bishop’s criminal jurisdiction over clergy and monastic exile of clerics (Novel 123) is one of the most directly or indirectly quoted of Justinian’s laws in Gregory’s Registrum. On Gregory’s views of the compatibility of public and ecclesiastical law see Arnaldi (1995) 70–71. Pelagius, ep. 35 (Gassò and Batlle:96–101); on the same case also epp. 60, 69, 71 (Gassò and Batlle:159–160, 178–179, 182). See also Pelagius, ep. 92 (Gassò and Batlle:219–220) on the monastic confinement of schismatic monks. On the background of Pelagius’ election see Richards (1980) 157–159.

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a monastery of his choice where she could ‘exercise chastity’.57 The measure was no doubt meant to remove a source of shame from the deacon’s household, who himself was also to be punished only lightly, without deposing him, which would have meant public humiliation (also for his bishop) and, as Kristina Sessa has shown, would have reduced the numbers of an already depleted contingent of clergy in post-war Italy.58 Furthermore, in addition to quietly disposing of the troublesome woman and simultaneously strengthening her spiritual wellbeing, monastic confinement would provide her with sustenance (we do not know what happened to her children). In 559, Pelagius also handled an adultery case in the same manner. He had been alerted by his subdeacon Melleus, in charge of the Roman church’s patrimony in Bruttium of the illicit relationship of one Benedict, possibly a cleric, to a married woman. He ordered Benedict to retire to a monastery in Apulia. The woman, in turn, was to be returned to her husband, or, if he refused to take her, to be sent to a ‘place where she will not be allowed to live an unchaste life’, most probably also a monastery.59 Again, therefore, monastic confinement provided both material maintenance and the preservation of honour, in this case also of the woman’s husband. A similar wish to subtly get rid of a potential source of conflict for his church may have underpinned the decision by Leo, bishop of Catania, some time before 594, to send Honorata, the widow of a former subdeacon of the church of Catania, to a monastery for having remarried. Remarriage, in conventional Christian teaching, was akin to adultery, as it infringed on the sacred principle of the single, lifelong marriage bond.60 The sexual morals of clerical womenfolk came increasingly under scrutiny in the course of the sixth century, as they reflected the purity and spiritual superiority of the clergy and the quality of a bishop’s leadership overall.61 Leo’s action, in fact, echoed the earlier ruling at a church council held at Macon in the early 580s mentioned above, although it is unclear whether Leo was aware of it. In any case, Leo’s judgement was reversed by Gregory the Great, who apparently had been approached by Honorata’s new husband, explaining that the rules of chastity did not apply in her case, as her first husband had renounced his clerical office before his death. In 57

58 59 60 61

Pelagius, ep. 47 (Gassò and Batlle:127–128): cuicumque monasterio continentiam professura tua dispositione tradatur. Sessa (2012) 186. Pelagius, ep. 64 (Gassò and Batlle:167–168): in alium quendam locum in quo non ei liceat male vivere. Gregory, ep. 4.34 (CC 140:254). On remarriage in Christian teaching see Arjava (1996) 167–172. Sessa (2012) 178.

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this instance, then, Gregory felt that the monastic confinement of the woman had led to more rather than less upheaval and unwanted publicity for the church of Catania. Elsewhere, Pelagius and Gregory explained that monastic confinement offered the opportunity to avoid a harsher, public penalty. As Pelagius wrote to his defensor (papal agent) Constantine some time before March 559, he had ordered a cleric from the church of Teano (today’s Caserta) to be ‘thrown’ (retrusus) into a monastery in the city of Rome. Constantine was to make sure that this cleric did not escape and return to Campania, where he would undoubtedly suffer the penalty of exile, which ‘now had been softened by ecclesiastical moderation’.62 Apparently, the cleric was to face accusation in a public court by the family of the woman, but he himself was not willing to give the relationship up. In this case, then, Pelagius did not accept the authority of public law. Pelagius’ strategy to keep a dependant of the church safe from public punishment through seeking the protection of a monastery had a long tradition in the Roman church. As early as the late fourth century, we hear in one of Jerome’s letters of the case of the Italian deacon Sabinianus. After having committed many crimes of a sexual nature, Sabinianus had entered a monastery in Bethlehem with a letter of recommendation from his bishop (probably Anastasius of Rome) to escape a persecution for adultery in Italy.63 Nonetheless, Pelagius’ choice of language stressed that monastic confinement was a form of punishment. The contrast drawn between a public penalty and the penalty of monastic confinement, which allowed to escape the former, was, however, often more rhetorical than real. A particularly illuminating case concerned Felix, the nephew or grandson of the bishop of Sipontum, in Apulia, also named Felix, which Gregory handled in 593.64 Felix jr. had seduced the unmarried daughter of a local deacon, Evangelus, a case of stuprum, an offence for which a public charge could be brought. Evangelus, however, rather than addressing a public judge, at first approached Felix sr, his bishop and probably also the young man’s paterfamilias, and subsequently, after Felix had apparently not taken steps to discipline his relative, travelled to Rome to seek justice with Felix’ metropolitan bishop. Gregory now ruled 62

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Pelagius, ep. 54 (Gassò and Batlle:143–144): poenam, quae nunc ecclesiastica moderatione temperata est, subeat, et indubitanter patiatur exilium. Jerome, ep. 147.11 (Labourt, vol. 8:131). For a more detailed analysis of this case see Hillner (2011) 456–462 and Sessa (2012) 188–190, who stresses Gregory’s decision for leniency as a way to express his moral authority over subordinate bishops.

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that Felix jr. was to marry the girl, or, failing that, he was to be flogged, excommunicated and thrown (retrudatur) into a monastery, ‘even though by law (lege) he should be submitted to grave punishment’, as Gregory explained to Felix sr.65 The sentence Felix jr. would have faced under Roman law for stuprum was the death penalty and any union developed with the girl after the act would have been regarded as illegitimate. The boy, therefore, got off lightly.66 Gregory’s ruling and its phrasing recalled an earlier order by Pelagius. In 559 Pelagius had written to the bishop of Vibo Valentina in Bruttium (today’s Calabria), congratulating him on having deposed a priest who had assaulted and lacerated the eye of a fellow deacon. In addition, the Roman bishop now explained to his colleague, he should send (retrudas) the former priest to a monastery, ‘even though he should be submitted to a graver punishment for such digression’.67 Although we know less about this case than that involving Felix of Sipontum, it is reasonable to conclude that Pelagius had also been approached by the victim of the crime, unhappy with the, in his (now literally affected) view too lenient, response by his immediate superior. Unlike the incident concerning the cleric from Teano mentioned above, therefore, it is doubtful whether Felix jr. or the priest from Vibo Valentina faced any charges at a public court, which the Roman bishops tried to protect them from. In the case of Felix jr., judging from Gregory’s response to the complaint, the accuser Evangelus was interested in a more inconspicuous solution to the problem, through marriage of Felix jr and his daughter, in order to save the girl’s honour. Evangelus’ address to Gregory, therefore, reflected an informed choice of the judge who could best support his interests.68 The same may be true for the adultery case Pelagius dealt with mentioned above, which may well have been brought to the attention of Pelagius’ subdeacon by the woman’s husband himself, keen on shielding his disreputable wife from the public eye. What we see at play here is, therefore, the scenario described in Chapter 3, where those seeking justice at the bishop’s court were either from the orbit of the clergy or, particularly if the issues concerned female sexuality, were interested in forms of justice that deflected shame from their family, or both. The attractiveness and predominance of ecclesiastical jurisdiction may, however, have increased in 65

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Gregory, ep. 3.40 (CC 140:185–186) (to his deacon, who was to supervise this process); Gregory, ep. 3.42 (CC 140:185–186) (to Felix sr): quamvis gravi esset de lege poena plectendus. CJ 9.13.1 (533) and NJust 143 (= NJust 150) (563). Pelagius, ep. 34 (Gassò and Batlle:93–95): quamvis huiuscemodi excessus graviori esset poena plectendus. See above Chapter 3 for such considerations frequently underlying address to bishops in the case of sexual crimes.

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sixth-century Italy, where bishops like Pelagius and Gregory came to be seen as the head of a clerical household that not only encompassed subordinate clergy, but also their families and other Church’s dependants, such as the tenants on ecclesiastical domains, an expanding category of people.69 Furthermore, due to the political instability of an Italy that had only recently been re-integrated into the Eastern Roman empire, bishops may have been increasingly recognised as in charge of maintaining public order, at the expense of state authorities.70 How, then, do we have to interpret Gregory’s and Pelagius’ references to the public penalty that was ‘harsher’ than monastic confinement and that the bishop of Sipontum’s grandson and the cleric at Vibo Valentina should have been submitted to? In both cases, they were dealing with subordinate bishops, whose response to offences among their dependents was inadequate in their eyes and also, more importantly, in the eyes of the victims who had complained to the Roman bishop as the higher authority. To prompt their colleagues into action, both Gregory and Pelagius used the threat of public law to ensure the desired form of justice. This was a convincing strategy, as by law bishops who tried cases of a criminal nature were required to transfer those sentenced to a public judge for the imposition of a public penalty.71 Neither Gregory nor Pelagius probably had any intention to do so, also because it would have been against the interest of the crimes’ victims. Yet, they made sure to let their addressees know about this possibility and about their power to disregard it in case of compliance or, failing this, to commute the penalty into monastic confinement, based on their confidence that they were, in fact, acting in loco of a public judge, as the law after Justinian allowed. The proposed penalty of monastic confinement, and also, in the case of Felix jr., of corporal punishment, was still a form of punishment, able to satisfy a victim, to restore honour and to purify a community, but one that was more salutary than the penalty envisaged by public law.72 Monastic confinement as a superior form of penance Monastic confinement was more salutary than a public penalty not just because it was non-lethal, but also because it forced the convict to perform 69

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For an excellent analysis of this process see Sessa (2012) 174–207. See also Arnaldi (1995) 69, on the increasing tendency in sixth-century Italy to subsume family members of clerics, and also dependents on the Church’s domain, into the familia ecclesiastica. 71 See on this development Brown (1984) 8–9, 116, 176–177. See above Chapter 3. See also Dossey (2001) 108 and passim on the bishops’ representation of corporal punishment as a more lenient option compared to public penalties.

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penance (ad agendam paenitentiam), as invariably stressed by both Pelagius and Gregory. The connection between monastic confinement and penance was of course present from its inception in ecclesiastical discourse, as we have already seen. Yet, the meaning of this type of penance and its participants changed considerably over the course of the sixth century, and perhaps in particular in the West in its interpretation by Gregory the Great. As becomes clear in the early sixth-century church council legislation, penance passed in a monastery was a practice connected originally to members of the higher clergy formally condemned for a grave sin. Such clerics were at first encouraged and then by council canon also required to retire to a monastery as a response to the ancient principle that condemned clerics were to be deposed but not submitted to performing penance publicly in church. Initially, this may have been designed to shield clerics against the shame of liturgical penance.73 Yet, in an age where, as mentioned in Chapter 3, the call for penance became increasingly more urgent, to the extent that it transcended the status of condemned sinners to encompass all society, the ancient prescriptions oddly excluded clerics from the opportunity and spaces to perform structured penance and to demonstrate, in the eyes of God and men, a sufficient level of compunction.74 Quite beyond the possibilities residence in a monastery provided in terms of sustenance of deposed clerics, protection from public law, retribution for victims or incapacitation to cause disturbance at their former communities, monastic penance was a way to allow clerics to become penitents without public humiliation and to acquire the benefits of contrition in the most compelling way. The monastic community, based, as we have seen in Chapter 8, on the notion of conversio from a sinful life and daily repentance of inherent sinfulness, increasingly provided the most emblematic penitential model for the world. Around the same time as clerical monastic penance became incorporated into ecclesiastical practices, we also observe ecclesiastical writers in Southern Gaul encouraging lay sinners, including those who had committed capitalia et mortalia peccata (but, we must assume, had not been publicly charged with such crimes in either a public or ecclesiastical court) to voluntarily take up an ascetic lifestyle. Again, this was represented as a way to avoid excommunication and the publicity of liturgical penance, but also as a more spiritual option.75 73 74

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De Jong (1997) 871. For the problems the urgency of penance created for clerics ‘in need of mercy’ see Uhalde (2007) 111–114. Gennadius, de ecclesiasticis dogmatibus 53 (PL 58:994); see also Ps-Faustus of Riez, serm. 3 (PL 58:875); Poschmann (1928) 128–142.

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Monastic penance was special and imposing monastic penance hence served bishops to fulfil their responsibility as the guardian of their community’s salvation. As Gregory the Great argued, penance in the monastery helped to ‘reform’ (emendare) sinful behaviour, strengthened the penitential performance and increased the power of a sinner’s tears, necessary to wash away, like a second baptism, the stain of sin and to prove his worth in front of the final judge.76 Monastic penance was special, but its success was closely linked to a particular type of monastery. Gregory was preoccupied that penitents were placed in monasteries that followed a rule (regularia monasteria). Even though regula does not have to mean a written rule in the sixth century, this demonstrates Gregory’s view that a monastery suitable for monastic penance submitted to the idea of stability, strict daily routines, obedience to the authority of an abbot or an abbess and a certain degree of withdrawal from the world.77 Furthermore, the value of monastic penance came with participation in monastic rituals, in particular prayers and fasting.78 This may be a reflection of Gregory’s own ideals of monastic life centred on seclusion and contemplation, the loss of which he lamented frequently upon his access to clerical office.79 Yet, his views on the enclosed, regulated community as the most suitable place of penance were probably shared by many bishops. It was the type of monastery that had become the ideal standard to adhere to over the course of the sixth century, particularly in the West, as the most supporting framework for a life in continuous reflection upon sin.80 Therefore, it is also doubtful 76

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Gregory, ep. 3.27 (CC 140:172): ‘He should be thrown into a monastery, where he should perform penance, so that he may have the strength to purge the stains of his crime in front of the eternal judge through suitable lamentation’ (in monasterio, ubi paenitentiam agere debeat, retrudatur, ut criminis sui maculas convenienti valeat apud aeternum iudicem lamentatione purgare); see also Gregory, ep. 12.10 (CC 140A:982–984) on Paul of Doclea: quatenus perpetrari sceleris maculas dignis discat fletibus emendare, quas magis in interitu animae suae nequiter augere desiderat; ep. 4.24 (CC 140:243): ‘so that he may be able to wash away with continual tears the earthly filth of sin, which he is said to have contracted by wicked works’ (quatenus (. . .) terrenas peccatorum sordes, quas pravis contraxisse fertur operibus, lacrimarum possit assiduitate diluere.). Cf. ep. 3.27 (CC 140:172); ep. 4.9 (CC 140:226); ep. 9.25 (CC 140A:585–586). For the metaphor of tears removing the stain of sin also see Gregory, ep. 1.66 (CC 140:76); and Gregory, Pastoral Rule 3.29 (SC 382:468–476). Gregory, ep. 1.42 (CC 140:54): regularia monasteria . . ., quae secundum Deum vivere sciunt; also cf. ep. 4.9 (CC 140:226): in alio districtiori virginum monasterio. On the meaning of regula in the sixth century cf. Jenal (1995) 309–310; Markus (1997) 69; Diem (2005) 134–137. Gregory, ep. 4.9 (CC 140:226): ut illic orationibus atque ieiuniis et sibi paenitendo proficiat; ep. 9.25 (CC 140A:585–586): ut letaniis et orationibus operam dent et peccati quam contraxerunt maculam flendo detergant. On this feature of monastic penance see also LP i:216 ut ieiuniis et orationibus maceratus and Epp. Arelat. 35 (MGH Epp. iii:50): orandi et plangendi. On Gregory’s view of monastic life see Markus (1997) 68–70 and 8–14 on Gregory’s own experiences as a monk turned bishop. Leyser (2000) 33–61, stressing the influence of John Cassian; Diem (2005) 323–331, and see above Chapter 8.

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whether work in a (monastery’s) hospice would have been seen as a suitable penitential alternative, at least for higher clerics. Over time, penance performed in the confinement of a monastery also opened the possibility for clerics to eventually resume their offices with honour, even after they had committed a grave sin. The case of Sabinianus, the bishop of Zara in Illyria mentioned at the beginning of this chapter, shows that by the end of the sixth century monastic penance was a customary way to iron out clerical misbehaviour and to allow a return to duty. It is clear from the way in which Gregory phrased the outcome of this penance that Sabinianus did not retain any social stigma from having undergone penance; on the contrary, he now could appear to his flock as an ‘example of salvation’ (salutis exemplum), inspiring them to a similar change of heart.81 Roman bishops had not always viewed clerical monastic penance in this way. About sixty years before, Caesarius of Arles had asked Gregory’s predecessor John to settle the contentious case of Contumeliosus of Riez.82 A council held at Marseilles had charged this aptly named unruly bishop with fornication and alienation of church property in 533 and he submitted to a period of penance in a monastery (and to restoration of the property). The council could not agree, however, whether Contumeliosus was to stay in the monastery for life, which was Caesarius’ position, or whether he could return to his see after an appropriate length of penance, which seems to have been the view of most of Caesarius’ suffragan bishops. Clearly, therefore, return to clerical office after monastic penance had precedents already at this point in time. It was a way to circumvent the traditional prescriptions on the exclusion of former penitents from clerical office, the rigidness of which for some time had caused headache for ecclesiastical authorities, concerned about the numbers and morale of their clergy.83 While it not only avoided the publicity of liturgical penance, performance of penance in an ascetic environment was a powerful statement of humility that increased a penitent’s spiritual authority for a lifetime. Monastic penance, in short, made for better clerics, whilst liturgical penance humiliated. The Roman bishop, however, took Caesarius’ side, arranging for an administrator of the church of Riez until elections for a new bishop would be held, and issuing the bishop of Arles with a long list of ancient council canons prohibiting return to clerical office after 81 83

Gregory, ep. 8.11 (CC 140A:529). 82 On the case see Klingshirn (1994) 247–250. See e.g. the council of Gerona in 517, which made the public confession of a mortal sin, rather than the performance of penance, the essential criterium for the end of a clerical career: Council of Gerona (517), cs. 9–9bis (Vives 41); see also De Jong (1997) 873; Uhalde (2007) 113. For the traditional prescription see above Chapter 3.

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penance. Caesarius circulated these to his colleagues and added his own list, which also included the canon from the Council of Épaone (at this time apparently unknown to the Roman bishop), arguing that the consequences of penance in a monastery were no different from other forms of penance and equally life-long and to allow Contumeliosus’ return would contribute to his divine condemnation.84 Yet, Caesarius was to lose this battle. After two years, Contumeliosus returned from the monastery, resumed his see at Riez (where no elections had been held) and appealed to the new bishop of Rome, Agapitus, who had succeeded John in 535. Agapitus ordered a retrial.85 We are not informed about its outcome, but clearly support by the Roman bishop had shifted from Caesarius to Contumeliosus. To be sure, Agapitus did not restore Contumeliosus to his see on the strength of his monastic penance, but the bishop had to prove his innocence. Still, the case shows that those arguing from ancient regulations about clerical penance may have had a more difficult task in the sixth century, than those trying to make these regulations fit a complex contemporary reality with the help of monastic penance. It is unclear whether Caesarius or John were just traditionally minded or whether there were political considerations at play that made them reject short-term monastic penance in Contumeliosus’ case (but perhaps not in others), which seems more likely. In any case, penance in a monastery as a route to return to clerical office was too good a thing to let go. By the second half of the sixth century, it was well established also in Gaul. In fact, in 579, a council at Chalon was able to present a bishop’s return to his see after penance in a monastery as a sacred ecclesiastical principle. The council was concerned with the case of two bishops, Sagittarius of Gap and Salunius of Embrum, a most reckless pair of villains if we are to believe Gregory of Tours. They had been sent to a monastery by the Frankish king Guntram, who now urged the council to depose them. The bishops present, however, maintained that the two could not be deposed for crimes for which they had already atoned through monastic penance. As Mayke De Jong has shrewdly commented, the bishops most probably resented a king’s interference in the ecclesiastical business of jurisdiction over clerics, reminding him of their right to give a verdict and establish the outcome of penance. That the outcome they proposed had been controversial only a

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Epp. Arelat. 35 (MGH Epp. iii:53): ‘How can conscience allow him who has been invited to perform penance in a monastery and hence cannot be called anything else than penitent to return to office?’; see also John’s other letters to the Gallic bishops: Epp. Arelat. 32–33 (MGH Epp. iii:45–47). Epp. Arelat. 37 (MGH Epp. iii:56–57)

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generation before, did not, apparently, matter.86 By the time of Gregory of Tours a bishop’s short-term monastic penance and return to his see was so honourable that it gave material to his anachronistic tale of the mythical second bishop Urbicus of Clermont (early fourth century), who allegedly had atoned for sexual intercourse with his wife in a monastery before resuming his office.87 Penance in a monastery hence paved the way for social re-integration of clerics also from some bishops’ point of view. By the end of the sixth-century, however, forced penance in a monastery was not reserved for higher clerics anymore, if it had ever been at all. Pelagius’ and particularly Gregory the Great’s prescription of monastic confinement extended down the social scale, all the way to slaves, as we have seen, and peasants on the Church’s estates. This was also of course partly a result of the more expansive social authority of Italian bishops in this period. Yet, Gregory, in addition, developed a unique and comprehensive vision of the penalty, even though we must always bear in mind that he was only able to impose this vision in an unsystematic way, in the random selection of cases that were brought to his attention.88 In Gregory’s mind, forced monastic penance was not only to preserve the spiritual well-being of the clerical elite and an automatic consequence of serious sin by clerics, as suggested by the council legislation. It was also not a measure only to be applied where it helped to affirm the authority of the Roman see or preserve social order (in particular with a view to women’s sexual behaviour), as it seems to often have done for his predecessor Pelagius. Rather, it was a way to safeguard the penitential performance of stubborn and evasive offenders, whether clerical, lay or ascetic. We have already observed Gregory’s principle of reserving monastic confinement for persistence of sinful behaviour in the case of Felix of Sipontum, who was first offered a chance to re-establish good relations with those he had harmed. Only if he refused to do so and as such demonstrated a predilection for sin, Felix was to be excommunicated and sent to a monastery. Gregory recommended a similar course of action with Paul, a bishop of Doclea in Dalmatia deposed for alienation of church property who was to be sent to a monastery for life only if he refused to return the property.89 A letter to bishop Constantius of Milan is 86

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Gregory of Tours, Histories 5.20 and 5.27 (MGH, SRM, 1.1:228, 233); De Jong (2000) 211. The pair was eventually deposed for other crimes. Gregory of Tours, Histories 1.44 (MGH SRM 1.1:29). On the reactive nature of Gregory’s rulings as a Roman bishop and the danger to see them as a reflection of a ‘grand strategy’ of power by the Roman bishop see Pitz (1997) 340–341. Gregory, ep. 12.10 (CC 140A:982–984), to John, archbishop of Prima Iustiniana.

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particularly telling about Gregory’s choice of monastic penance in case of non-compliance with ecclesiastical justice. Constantius had consulted Gregory on the treatment of a number of misbehaving clerics, probably all from the diocese of Luni. In his response, Gregory recommended a range of measures: Some of these clerics were merely to be deposed and one was to receive a new post on the island of Gorgona as a steward of convents. Only one, called Vitalianus, was to be sent to a monastery to undergo penance. Constantius had told Gregory that this presbyter had to be guarded closely (de quo scribitis ut districte debeat custodiri), which may mean that Vitalianus had managed to continue his misbehaviour.90 Another case of a sinner being directed to a monastery if he continued in wickedness involved a lay man, the vir clarissimus Boniface, who had appealed to Gregory against his excommunication by the bishop of Palermo. Gregory ordered his agent to investigate the case, and if he had indeed been guilty of the crime he was accused of to send Boniface to a monastery to do penance. In this case, Gregory therefore suggested increasing the severity of the penalty, from excommunication to excommunication and monastic confinement, because if Boniface was guilty he would have made an appeal on false pretences and as such had neglected his penitential duties.91 At the other end of the social scale, Gregory recommended monastic penance for labourers on the Sardinian church’s estates who wilfully refused to give up paganism and ‘reform’ (emendare) themselves (although, it has to be noted, here he drew a line at slaves, who for the same offence were to be flogged).92 In all these instances, monastic penance was presented as the most severe form of penance, even more severe than liturgical penance, for it was the most rigorous. Overall, Gregory’s letters show his belief that at times sinners – ascetic, lay and clerical alike – needed to be forced into monastic penance when the particular circumstances of their moral failure called for education through a particular form of discipline. Monastic confinement could also be accompanied by excommunication, even in the case of clerics, to reflect the increased severity of the measure and ensure that penitents were further humiliated by having to take up a place at the bottom of the monastic hierarchy.93 In addition, monastic confinement could be customised by 90

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Gregory, ep. 5.18 (CC 140:286); cf. epp. 5.5 and 5.17 (CC 140:270, 284) to Venantius of Luni, for the regional location of these cases. Gregory, ep. 3.27 (CC 140:172). Gregory, ep. 9.205 (CC 140A:763–764), to Januarius, bishop of Cagliari. Excommunication of lay people: Gregory, epp. 3.27, 3.40, 3.42 (CCL 140:172, 185–186); excommunication of clerics: Gregory, epp. 9.25, 12.10, 13.46 (CC 140/140A:585–586, 982–984, 1052–1055);

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tailoring the length of their stays in the monastery to the moral level of the penitent. The aforementioned bishop of Doclea, for example, was to be handed over to a monastery ‘until the day of his death.’94 Yet, in the case of two Spanish bishops who had been (in Gregory’s eyes) unlawfully ordained, they and those who had ordained them were only to be sent to a monastery for six months.95 The length of their penance matched their relatively light sin, although Gregory’s intention may also have been to remove these bishops for a time until new elections had been held. He added, however, that the time of their penance could be shortened and its form softened. In another case, concerning the abuse of Church property in Malta, he left it to the local bishop to determine the length of penance, and therefore, presumably also the stay in the monastery.96 In the case of Felix, the wretched grandson of the bishop of Sipontum, Gregory himself planned to check on the success of his penance and the possibility for him to leave the monastery.97 In each of these cases, then, the penitential performance and its effect on the morality of the sinner was to be closely monitored and stay in the monastery could potentially be terminated. More than any other late antique bishop who applied the penalty of monastic confinement Gregory incorporated it into an ideal pastoral programme. A good pastor, as Gregory argued in his Pastoral Rule, was a physician of the soul and hence would apply discretion and adopt an approach that best fitted the moral progress of an offender.98 Monastic confinement was not to be applied after specific crimes, but only if the disposition of the offender demanded it. As such, Gregory showed a striking understanding of the convergence of pastoral and juridical functions of episcopal authority as demanded by the normative literature discussed in Chapter 3. We will probably never know how unique Gregory was as a late sixth-century bishop, or to what extent his uniqueness is just an impression generated by the disproportional survival of his writings. Yet, it has been noted that Gregory’s actions cannot be easily understood without continuous reference to the eschatological imminence

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clerics, however, seem also to have been just deposed and returned to ‘lay communion’ cf. ep. 4.9 (CC 140:226). Gregory, ep. 12.10 (CC 140A:982–984): usque ad diem obitus sui. Gregory, ep. 13.46 (CC 140A:1052–1055). Gregory, ep 9.25 (CC 140/140A). In this case the clerics may also have been allowed to return to their office. Gregory, ep. 3.40 (CC 140:185–186): ita ut nulla exinde ei sit quoquomodo egrediendi licentia, nisi hoc nostra permiserit fortasse praeceptio. Gregory, Pastoral Rule, 2.9–2.10 (SC 381:236–252); on Gregory’s view on the correction of souls as represented in his Pastoral Rule see Leyser (2000) 160–171; Demacopoulos (2007) 135–136.

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that pervaded his thinking, which, in turn, cannot be understood without continuous reference to the immensely unstable world he lived in.99 Gregory’s prime concern was to establish a framework of pastoral duty that would create order in earthly society in preparation for the end of time. The incidents of monastic confinement in Gregory’s letters may betray this sense for eschatological imminence which called for the refusal of complacency, also of those with pastoral duties, and the in-gathering of all, even the most stubborn, in penitential preparation for the coming of the judge. The difference between Gregory and other sixth-century bishops therefore was not that he used monastic confinement to a larger extent. Yet, he may have been innovating on its meaning, in the sense that he had a different vision of its spiritual benefits.

Enforcement Monastic confinement was not easily implemented at the hands of a bishop. We do not hear much about its success in Gregory’s or Pelagius’ letters, which were usually concerned with ordering its imposition rather than describing the practice, but there is some indication that it did not always go smoothly. In the spring of 559, Pelagius wrote several letters to the magister militum John to solicit help in locating the deposed schismatic bishop Paul of Forum Sempronii and to bring him to Rome under military escort so he could be sent to the monastery that Pelagius had chosen for him. Yet, Paul had high-ranking friends. Among these were Narses, Justinian’s supreme commander in Italy himself, but also two viri illustres (men of senatorial rank), Viator and Pancratius. To these Pelagius wrote expressing his stupor (valde mirati sumus) about their support of a schismatic bishop. He ended the letter by pointing out that Paul had ‘absolutely promised’ to take himself to the monastery.100 We do not know, however, whether he ever did so. Narses, Viator and Pancratius were not the only powerful lay men protecting those destined for monastic penance. In 594, Gregory wrote to the exarch Romanus to complain about the protection (tuitio) the imperial official had bestowed on the ex-presbyter Speciosus, helping 99 100

Markus (1997) 53–54. Pelagius, ep. 69 (to John); 71 (to John); 35 (to Viator and Pancratius): qui absolute se ambulaturum esse promisit (Gassò and Batlle:178–179, 182, 96–101); on Paul’s protection by Narses see Pelagius ep. 60 (Gassò and Batlle:159). On Paul see PCBE 2:1667; on John see PLRE iiib, Ioannes 72, 670 and PCBE 2:1096–1097; on Viator and Pancratius see PCBE 2:1583 and Pancratius 4, 2269; PLRE iiib, Pancratius 1, 963 and Viator 1, 1371.

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him to leave the monastery to which he had been relegated by archbishop John of Ravenna.101 This rather shadowy case, the exact circumstances of which cannot be reconstructed, stands as an example of the difficulties not only to move penitents to monasteries, but also to keep them there without public support.102 Some bishops, of course, as we have seen above, had no shortage of strong-armed supporters and by the sixth century, at least Roman bishops had an established group of clerical agents (defensores, usually sub-deacons of the Roman church) they could delegate the execution of legal orders in areas under their control.103 We see these agents frequently entrusted with the task of transferring a condemned person to a monastery for penance. For example, in the case of Felix of Sipontum, Gregory’s agent, the notary Pantaleon was to investigate the case, and if he found it as the accuser Evangelus had described it, make sure that Felix jr. married the girl he had dishonoured, or, if Felix refused, to flog, excommunicate and assign him to the monastery.104 However, it was not just state officials that could potentially create problems for the enforcement of monastic confinement but also church personnel’s failure to comply with a bishop’s orders. In 601, Gregory wrote an angry letter to the Church’s estate steward (rector) in Sicily, Romanus, who had released a number of clerics from their place of penance, most probably a monastery, without consulting their bishop, John of Syracuse.105 In this letter, Gregory also rebuked Romanus for having judged a dispute between two clerics rather than referring it to their bishop, which would have been the correct procedure. The circumstances of these cases again are unclear, but it seems that Romanus had been approached by a number of clerics for a form of legal patronage that in Gregory’s eyes jeopardised the purposes of their penance. In another letter to bishop Theodore of Lilybaeum in Western Sicily, Gregory had to stress that he intended a penitent bishop, who had alienated church property, to stay in the monastery he had been assigned to, which shows that there was 101 102

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Gregory, ep. 5.19 (CC 140:287–288). See on the relationship between Ravenna and Rome, and between Gregory and Romanus, with a short reference to the case of Speciosus Markus (1997) 147–156. On the defensores of the Roman church see Martyn (2003) 1–7. Gregory, ep. 3.40 (CC 140:185–186): et si ita reppereris, eam quam stupravit aut uxorem, factis nuptialibus instrumentis, accipiat, aut corporaliter castigatum in monasterio eum privatum communione, ubi paenitentiam peragat, dare festinabis, ita ut nulla exinde ei sit quoquomodo egrediendi licentia, nisi hoc nostra permiserit fortasse praeceptio. Other incidents involving the assistance of defensores in the context of monastic confinement are recorded in: Pelagius epp. 54, 64, 70, 92 (Gassò and Batlle:143–144, 167–168, 180–181, 219–220); Gregory, epp. 1.42, 1.66, 3.27, 4.6, 5.25, 8.8, 9.22, 13.46 (CC 140:54, 75–76, 292–293, 172, 223, CC140A:525–526, 582, 1052–1055). Gregory, ep. 11.24 (CC 140A:894–895).

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considerable confusion about the nature of this penance and its usual length on the part of those in charge of its administration.106 This case is reminiscent of that of Contumeliosus of Riez, discussed above, where, as we have seen, Caesarius of Arles ultimately failed to convince his suffragan bishops that Contumeliosus had to be kept in the monastery he had been sent to. Furthermore, there was the monastery itself to reckon with. In the case of Contumeliosus, Caesarius was doubtful whether he had in fact been submitted to the required routines of prayer, lament, fasting and reading.107 Bishops attending the Council of Narbonne in 589 complained about abbots’ extravagant hospitality for their criminal guests, reminding them that the purpose of sending someone to monastic confinement was ‘so that he may improve (emendet), not that he may be randomly filled with mess of a different sort’.108 Particular the last incident shows that the Chalcedonian vision of episcopal control, even though it must have fuelled a momentary sense of hierarchy between sixth-century bishops and monasteries, was often wishful thinking, if not even positively resisted by some monasteries. What all of this means is that a bishop pronouncing a sentence of monastic confinement may at times not have been able to rely on cooperation with his subordinate bishops, the monasteries involved, or even his own agents. The success of monastic confinement as an ecclesiastical penalty, therefore, often depended less on tangible tools of enforcement than a range of other factors. This included, firstly, the penitential commitment of offenders. To be sure, some individuals, in particular those materially dependent on the Church or women separated from their families, such as the adulterous woman and the slave woman Pelagius dealt with, simply may not have had an alternative other than to stay in the monastery they were assigned to. Yet, the limits of a bishop’s power to restrict particularly a lay person’s self-determination were reflected in the fact that monastic confinement was not prescribed in church council legislation until the mid seventh century.109 This distinction between clerics and lay people with regard to monastic confinement was in principle also recognised by 106 108 109

Gregory, ep. 3.49 (CC 140:194–195). 107 Epp. Arelat. 35 (MGH Epp. iii:50). Council of Narbonne (589), c. 6 (Vives 147–148): ut emendet, non ut passim ferculis diversis saturetur. Council of Toledo IV (633) c. 55 (Vives 210). The Council of Narbonne (589), c. 6 (Vives 147–148) mentioned honorati de civitate sent to monasteries, but this did not lay down any ecclesiastical norm on the treatment of lay people, and also most likely referred to Visigothic royal officials confining lay ringleaders during the Arian uprising in Narbonne after the conversion of Reccared, which bishops retrospectively supported; see Stocking (2000) 96–97.

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Gregory.110 Nonetheless, even offenders with more agency may have voluntarily submitted to penance in a monastery, either, if their wrongdoing was also a public crime, in order to avoid a public trial and more retributive punishment, or because they recognised its spiritual benefits, if only as a way to gain reconciliation with the Christian community. Contumeliosus of Riez and Sabinianus of Zara agreed to monastic penance (albeit only a short one) surely because they calculated that it would win them their respective see back and bolster their authority as a church leader. Other bishops, however, such as Paul of Forum Sempronii, were not convinced, which conveys a great deal of Pelagius of Rome’s powerlessness among Italian bishops. His case shows that there may have been little to be done for bishops or a bishops’ council other than exerting moral pressure on a penitent and his supporters when the former chose not to comply. Secondly, monastic confinement of penitents required certain compliance from the monastic community in question, both to take penitents in and to keep them from leaving. To ensure such collaboration we see bishops pragmatically exploiting their monastic networks. They sought to safeguard the implementation of monastic confinement by placing penitents into monastic institutions they trusted and where they believed they could exercise a certain degree of control. For example, when Pelagius wished the cleric at Teano to be removed from an illicit relationship with a local woman, he ordered him to be taken to a monastery in Rome, where he was additionally to be guarded by a defensor.111 While we know surprisingly little about the monastic landscape in sixth-century Rome, the extant sources suggest tight dependency on papal patronage before the influx of Greek monks from the seventh century on disturbed this balance.112 Yet, it was not only spatial proximity that made for a bishop’s control over a monastery but also and more importantly personal relationships. For example, Gregory instructed his notary Castorius to place an unruly monk at Ravenna into the monastery of Sts John and Stephen in Classe and to keep him there, perhaps in resistance to exarch Romanus’ patronage for fugitive monks. The monastery had a close relationship with Rome and its abbot Claudius was Gregory’s personal friend.113 Significantly, Sts John 110

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Gregory, ep. 4.9 (CC 140:226) advised Januarius of Cagliari to sent clerics to a monastery for the abduction of nuns, but to ‘just’ excommunicate lay men for the same offence. Pelagius, ep. 54 (Gassò and Batlle:143–144). Costambeys, Leyser (2007) 262–272. All foundations of male communities prior to the sixth century were papal ones, according to our only source, the mid-sixth century Liber pontificalis, although this perhaps reflects the ideological tendencies of this text: on these see Jenal (1995) 91–93. Gregory, ep. 5.25 (CC 140:293); see Markus (1981) 576 on this monastery and the case in question.

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and Stephen was the only monastery on which Gregory ever conferred special rights of papal protection.114 When we examine the case of the vir clarissimus Boniface in Palermo, we can see that Gregory applied a similar strategy. He entrusted the investigation into Boniface’s complaint against the bishop of Palermo to his friend, the abbot Marinianus. The community Boniface was eventually to be sent to was probably that of abbot Marinianus and a foundation by Gregory himself on his Sicilian properties.115 Clearly, therefore, Gregory wanted to make sure that Boniface could be persuaded to perform monastic penance in the first place but also that subsequently this performance would be properly supervised. One of Gregory’s own monasteries can also be imagined as the place of incapacitation for the ex-presbyter Vitalianus, whom he ordered to be sent from Luni to Sicily. In this way, Gregory explained, Vitalianus would no longer be able to escape from his penitential duties. Certainly Gregory sought to improve the success of this monastic confinement by removing the penitent from Lombard-ruled territory to territory under authority of the Roman church.116 In addition to making use of individual monastic contacts, Gregory took a number of steps to turn the hosting of penitents into an advantage for monastic communities by strengthening, where he could, the economic framework of monasteries to facilitate this function. This can be seen most clearly in the assignment of a clerical offender’s property to the monastic institution destined to hold him. The benefits of this in terms of incapacitation were two-fold. On the one hand, of course, the loss of their property to the monastic community meant that penitents had little choice other than to stay in their assigned places. On the other hand, it created a financial incentive for monasteries.117 In a letter of general instruction, Gregory explained to his sub-deacon Peter, a steward of the Roman church’s patrimony in Sicily, that monasteries should receive the property of those clerics who had been destined to lifelong monastic penance ‘in 114

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Gregory, ep. 8.17 (CC 140A:536–538). On Gregory and monastic immunity see Markus (1997) 70–72; Rosenwein (1999) 47; Jenal (2004) 226–227. It is also in Ravenna where Gregory reminded the bishop to make sure that monasteries were kept clear of the interference of clerics and lay people: ep. 5.1 (CC 140:266). Jenal (1995) 292–293. Gregory, epp. 3.27 (Boniface), 5.18 (Vitalianus) (CC 140:172, 286): ‘so that, being deprived of all hope of escape, he may then at least constrain himself to penitential bewailing’ (ut spe discedendi sublata, in paenitentiae se saltem tunc lamenta constringat). See also Gregory, ep. 8.8 (CC 140A:525–526) where Gregory orders strictly to guard a nun within a monastery (in monasterio, ubi omnino districte valeat custodiri, detrudere). See Geltner (2008a) 99.

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order that those who have the care of their correction may have assistance from their property’.118 Yet, if the penitent clerics had relatives (parentes), he instructed Peter, they should receive all the property, but out of this property a stipend (stipendium) should be set aside to maintain the family member in the monastery. Especially if the relatives were tenants on the domains of the Roman church (or as Gregory puts it, if they were members of the familia ecclesiastica), the property was to go to them, so that the Church could continue to claim the rents.119 André Guillou has seen this order as proof that monastic confinement was predominantly linked to economic considerations. Monastic confinement of offenders, and related pressure to renounce property, facilitated handing over property to institutions that were contributing to the Church’s patrimony to a larger degree than any other ecclesiastical or public penalty could have done.120 While this may have been on Gregory’s mind, it should be remembered that such control over the property of penitents and their relatives was only fully possible in the case of clerical families. Where lay penitents were concerned, financial arrangements concerning monastic penance, by contrast, were not always properly arranged, as in the case of one Marcellus, who perhaps voluntarily had retired to the monastery of St. Adrian in Palermo, where he subsequently was in want of food and clothing. Gregory instructed his steward Peter to assign to him an annual stipend, presumably out of the income from the ecclesiastical domains in Sicily, keeping a record of this in his accounts, to provide him with food, clothes, bedding and a servant (a peculiar, but not unparalleled provision for sixth-century monastic penitents).121 Elsewhere, Gregory ordered to transfer a church donation that a female penitent had made previously to the monastery she now had been 118

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Gregory, ep. 1.42 (CC 140:54): quatenus ipsi ex rebus illorum subsidium habeant, qui de correptione eorum sollicitudinem gerunt; quatenus ipse locus . . . rerum eius stipendia habeat, qui eius sollicitudinis labores portat. Gregory, ep. 1.42 (CC 140:54): ‘so that their property may not be withdrawn from the right of the Church’ (sed res eorum ecclesiastico iuri non subtrahi). Guillou (1983) 79–86. Gregory, ep. 1.18 (CC 140:17): ‘therefore we think it is necessary to instruct you by this present order to get active, so that you assign to him as much as you may see is needed annually for food, clothing, bedding and his servant’ (pro qua re necesse habemus strenuitate tuae praesenti iussione praecipere ut ipsi pro victu ac vestimento stratoque vel continentiam pueroque eius annam, quantum prospexeris sat esse, constituas, ut inopia nuditasque eius tali providentia possint habere consultum, ut ea quae eidem viro deputaveris tuis postmodum possint rationibus imputari). PCBE 2:1378–1379 argues that it was Marcellus’ son who should have received an annual stipend, but the term puer more likely refers to a servant. On servants of monastic penitents see Gregory of Tours, Historiae 5.20 (MGH, SRM 1.1:228), on the case of Sagittarius and Salunius mentioned above, who were allowed to keep one servant each.

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placed in as a stipend (stipendium) for the sake of her sustenance.122 Gregory’s dealings with the case of Marcellus, left in dire straits in the monastery in which he was to perform penance, probably demonstrates a genuine inability of the community to provide for Marcellus. It reflects the fact that most Western monasticism was of a low-key nature and many Italian monasteries were poor.123 The success of monastic confinement therefore also required that such financial deficiencies be overcome and Gregory was even prepared to invest church money for this purpose. At the same time, it could be argued that Gregory expected particularly poor monastic communities to agree to accommodate penitents due to the financial benefits that came with it. While not denying the economic benefits that at times arose from such arrangements for the Roman church, Gregory’s interest in the financial details of monastic confinement also need to be seen as a strategy to create allegiance of the monastic communities in question. Ultimately, however, the success of monastic confinement often relied on the power of words and the ability of a bishop to display spiritual authority. For the magister militum John’s support in capturing the obstinate Paul of Forum Sempronii, for example, Pelagius invoked the prospect of heavenly reward.124 With the viri illustres Vitalis and Pancratius, Pelagius adopted a different tone, lecturing them at length and in a fairly patronising tone about the spiritual implications of schism and the impossibility that they would ever be able to benefit from the sacrifice of Christ’s body supporting disunity.125 As we have seen above in the case of Felix of Sipontum, the letter the accuser Evangelus was to take back to Felix was also rhetorically geared to strengthen Gregory’s judgement and make Felix accept and support either marriage of Felix jr or his assignment to a monastery. It showcased Gregory’s expertise, both on the legal consequences of Felix jr’s behaviour and on the spiritual ones. Not only did Gregory threaten with transferring the case to a public court and hence potentially the death penalty, but, as a last argument to prompt Felix sr. into action, Gregory reminded him that, even if Felix jr. managed to escape either from his obligations towards the girl and her father, or from his 122 123 124

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Gregory, ep. 1.42 (CC 140:55). On the poverty of Italian monasteries and Gregory’s strategies to alleviate it see Jenal (2004) 225. Pelagius, ep. 69 (Gassò and Batlle:93–95): is per quem ad nos deductus fuerit, dignam pro labore suo recipient Deo propitiante mercedem. Pelagius, ep. 35 (Gassò and Batlle:96–101): scisma siquidem ipsum, quod graecum nomen est, scissuram sonat; sed in unitate scissura esse non potest . . . Quibus omnibus illud efficitur, ut quia in unitate unum non sunt, ut quia in parte esse voluerunt, ut quia Spiritum non habent, corpus Christi sacrificium habere non possint.

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penitential duties, he would be in danger (periculum) when the final judgement came. This danger would have extended to Felix sr. himself for his pastoral error of having neglected his duties.126 This rhetorical strategy shows that Gregory could not even expect his suffragan bishops to simply follow his directives. Rather he had to strengthen the case of the person who had approached him for help, and who took back his help in form of a letter, by making the letter as persuasive as he could. Pelagius’ and Gregory’s standard instructions to bishops or defensores, usually in the briefest words, to put clerical or lay penitents into a monastery or to transfer lapsed monks or nuns between monasteries, also need to be seen as such rhetorical strategy.127 Rather than demonstrating that they could be sure that their own metropolitan jurisdiction over Italia suburbicaria and, in turn, their subordinate bishops’ jurisdiction over their diocese was so accepted that everyone obeyed their authority, they served to style the Roman bishop as the one in charge. Ultimately, the decision whether monastic confinement pronounced by a bishop was implemented was taken on the ground. On some occasions, those addressed may have followed a bishop’s order to monastic confinement as they accepted on the strength of his rhetorical vigour that by virtue of his office he either represented a higher moral order or at least was supported by the letter of the law (ecclesiastical or public). On other occasions, and perhaps more frequently, they may have heeded his advice because they were his friends. It may be the case therefore that where monastic confinement was successfully imposed on an unwilling penitent, this happened due to personal allegiance to a bishop: of the monastic community, of the bishop’s agents, of the ecclesiastical personnel administering the penance, and, finally, of state authorities. It is to the embracement of monastic confinement in public legal practices and norms that we will now turn. 126

127

The reference to periculum awaiting those who would not comply with his orders at the end of time is a standard expression in many of Gregory’s letters: cf. ep. 2.10 (CC 140:97); ep. 3.36 (CC 140:182); ep. 9.129 (CC 140A:679); see also Pitz (1997) 324–325. See e.g. Pelagius, ep. 34 (Gassò and Batlle:93–95); in aliquo eum monasterio retrudas; Gregory, ep. 3.40 (CC 140:185–186) to Pantaleon notarius: in monasterio eum . . . dare festinabis; ep. 5.4 (CC 140:270) to Victor, bishop of Palermo: in monasterio alio dari volumus; ep. 9.25 (CC 140A:585–586) to John of Syracuse: in monasteriis . . . deputentur.

chapter 10

Monastic confinement and imperial justice

During the reign of Justinian, the penalty of confinement in a monastery was introduced into public law in a number of the emperor’s so-called Novels, issued between 542 and 556.1 These laws dealt with a wide range of issues. In 546, the emperor introduced lifelong monastic confinement, to be spent in a monastery outside his former diocese, for any bishop who had been deposed and exiled but was unwilling to give up his see or to remain at his place of banishment.2 In the same year and the same legal promulgation, Novel 123, Justinian prescribed monastic confinement for a number of offences of subordinate clergy. Among these were any clerics’ attendance of public games and gambling, clerics’ perjury in civil disputes (although not in criminal processes) and the abduction of deaconesses, a clerical office open to women. In accordance with the time-honoured principle that abducted women were complicit in the crime, a deaconess was to be punished with permanent retirement to a monastery, while the former two offences by male clerics merited only a three-year-long residence.3 In the previous year, Justinian had ordered that clerical stewards who had sold church property to heretics, Jews or Samaritans be excommunicated and sent to a monastery for a year.4 While the emperor legislated on the penalty of monastic confinement to address problems of church unity and church discipline, he also, in addition, introduced it in the context of marital offences. In 542, Justinian 1

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The following chapter partly draws on Hillner (2007), although it considerably develops the argument advanced in this article through a study of the social contexts of the public penalty of monastic confinement. NJust 123.11.2. NJust 123.10.1; NJust 123.20 (referring to bishops, priests and deacons); NJust 123.30 and 123.43. On the late antique office of deaconess see Elm (1994) 137–183. On abduction (raptus) as a legal crime see Evans Grubbs (1995) 184–185; Evans Grubbs (2001). Roman law did not make a distinction between abduction against the woman’s will (with, possibly, rape) and abduction with the woman’s consent. NJust 131.14. The stewards in question were the so-called oikonomoi, which the council of Chalcedon in 451 had prescribed each bishop’s church to employ. The oikonomos was to be selected from the clergy of the bishop’s church: Chalcedon (451) can. 26 (ACO 2.2.2:40).

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ordered a wife who had sent notice of divorce to her husband without sufficient reason (henceforth called ‘unilateral divorce’) to a monastery for the rest of her life. The monastery was also to receive part of her property. Six years later, he extended the same penalty to husbands and eventually, in 556, also to couples who had divorced by mutual consent, unless they decided to reunite.5 In the same law of 556, Justinian also stipulated that a woman convicted of adultery receive ‘customary punishment’, perhaps referring to a fine to the equivalent of a third of the dowry paid to the husband, and in addition be sent to a monastery.6 Yet, the adulteress’ stay in the monastery could be temporary as her husband could take her back after two years, if he so wished. If he did not, the monastery was to receive part of the woman’s property according to the same ratios established in the laws on unilateral divorce. In the case of adultery, Justinian explicitly stated that the details on the punishment in his law followed those laid down by Constantine, which had been a form of exile, deportatio with loss of citizenship, or at least Justinian interpreted it in this way.7 It is reasonable to assume that Justinian also followed Constantine’s statutory penalty (relegatio with loss of property) in his divorce law.8 Both laws, hence, extended a traditional penalty of exile to forced residence in a monastery. Justinian’s legislation established a legal penalty of educative confinement for the first time in Roman law, both in the spiritual sense, for individual moral improvement, and in the social sense, in the case of temporary stays in the monastery that included release back into society. At that point, the traditional concept of non-lethal, neutralising and reformative punishment in Roman legal thought described in the first part of this study, entertained in imperial paternalistic discourse since classical times and enhanced by the concept of the Christian emperor as a guarantor of salvation, met with an institution that at least in theory offered an infrastructure to realise such expectations also for elite offenders and in the case of serious crime. Yet, the penalty was only introduced for a small number of crimes and criminals, whose variety at first sight is bewildering for the historian in search for a coherent strategy behind 5

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NJust 117.13; NJust 127.4 (548); NJust 134.11. Monastic confinement even for couples who divorced by mutual consent was not a successful attempt, as this law was abolished already in 566: NJust ii 140. On Justinian’s divorce law see Noonan (1968) 41–96. NJust 134.10. The law ordered simply poinai; Goria (1974) 74 suspects it prescribed corporal punishment, but it is more reasonable to conclude that the fine also mentioned in NJust 117.8 as punishment for adultery was meant. See above Chapter 7. Noethlichs (1994) 34; also note Mommsen (1899) 973–975 on this particular law and its connection with exile.

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Justinian’s actions. What we have to bear in mind, however, is that, as we have alluded to in the Introduction, Justinian’s laws on monastic exile, just as in most late Roman laws, were prompted by real-life scenarios and expectations brought to the emperor’s attention on a piecemeal basis, even though he responded with a characteristically programmatic attitude exceeding that of previous emperors. As we shall see in this chapter, Justinian did not create the penalty of monastic confinement but drew on previous uses of this type of punishment, including ecclesiastical uses as described in the previous chapter, which explains the diversity of situations in which it was introduced, from doctrinal conflict at the top of the Church to conflicts in the domestic sphere. At the same time, however, it can be argued that Justinian’s choice to turn monastic confinement into a statutory penalty was inspired by his belief that ecclesiastical jurisdiction, penance and the monastic institution had a role to play in ordering the Christian empire.

Monastic confinement of banished clerics Justinian legislated on monastic confinement of banished bishops, who were perceived as troublesome, because, in effect, monasteries had been used for this purpose for decades during the religious controversies of the fifth and early sixth centuries.9 The very origins of this government measure can be connected to the increase in stable monastic communities over the course of the fifth century and the monastic background particularly of many Eastern bishops involved in theological dispute.10 Many deposed and banished bishops in fact sought out friendly monasteries as places to reside in, not only because they allowed a life of religious orthodoxy, but also because they provided a social network, material sustenance and safety from state interference. For example, Timothy of Alexandria (nicknamed ‘Salophakiolus’) retreated to his former monastery of Canopus near Alexandria, which shared his loyalties to the teachings of the Council of Chalcedon, after the usurper Basiliscus had re-installed his Miaphysite rival Timothy Aelurus in 476.11 On occasion, such monastic retreats happened to escape imperial arrest. After his deposition in 518 and subsequent banishment by Justinian’s uncle and predecessor Justin, the Miaphysite leader Severus of Antioch fled to the monastery of Enaton 9 11

10 On the following see also Vallejo Girvés (2004) 511–524. On the latter see Sterk (2004). Evagrius, Ecclesiastical History 3.11 (SC 542:412); Liberatus, Breviarium 16 (ACO 2.5:125); Theophanes AM 5967 (de Boor 121).

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outside Alexandria, a city that, as we have seen in Chapter 7, became a focal point for Miaphysite refugees during this time, causing local state authorities much headache.12 As we have also observed in Chapter 8, monasteries came to be seen as sacred spaces over the course of the fifth and early sixth centuries, strictly divided from the outside world by inviolable boundaries, which may have significantly aided their perceptions as places of refuge from public justice, even though, unlike churches, this was not yet acknowledged by law.13 Often, however, monastic retreats of banished church leaders were endorsed by the emperor as a gesture of magnanimity. In 431 Theodosius II explicitly allowed Nestorius of Constantinople to live in his former monastery outside Antioch after his deposition at the Council of Ephesus. He did the same to the archimandrite Eutyches, condemned as a heretic at Chalcedon, but permitted (at first) to retire to his own monastery, and to Theodoret of Cyrus who seems to have returned by his own request to his old monastery near Apamea after having been deposed at the Council of Ephesus in 449.14 Allowing such men to pass the time of their banishment at their former monasteries or in a friendly community was perceived as similar to house arrest, to ensure a life in relative comfort of the banished, which also, conveniently, relieved the emperor from providing for their sustenance. It also simultaneously upheld an image of imperial clemency and the heretic’s removal from society. At times, emperors may have come to subsequently ratify a case of sanctuary as a penalty of exile, remotely guarding, as it were, a refugee to a monastery. For example, Peter the Fuller, the Miaphysite bishop of Antioch, whom Leo had banished to Oasis in 471 for having forcibly expelled his predecessor Martyrius, seems to have obtained subsequent permission from the emperor to instead reside at the Monastery of the Acoemetae (‘Sleepless Monks’, so called for their incessant prayer), whose motherhouse was on

12

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On Severus’ stay at Enaton, where he also met other equally banished bishops see Watts (2006) 247– 248. For an incident concerning a lay aristocrat fleeing to a monastery see Procopius, Secret History 3.29 (Loeb 40). See above Chapter 8 and on monasteries’ late antique beginnings as places of immunity see Rosenwein (1999) 41. On hospitality as a principle of Christian monasticism see Hiltbrunner, Gorce, Wehr (1972) 1115. A fundamental text was Life of Antony 17 (PG 26:869B); see also Rule of Benedict 53 (SC 182:610–617), which claimed that hospitality was an original part of monasticism, and served for the perfection of monks. On church asylum and its connection with exile in late antiquity see above Chapter 7. Eutyches: Evagrius, Ecclesiastical History 1.7 (SC 542:124–140); Leo, ep. 84 (ACO 2.4:44); Theodoret: Theodoret, ep. 119 (SC 111:80), which articulates the request and ep. 146 (SC 111:172–200), which situates him in the monastery in 451.

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the southern side of the Bosporus outside Constantinople.15 In another version of this story, however, reported by the early ninth-century chronicler Theophanes, Peter ‘hid’ in the monastery to avoid his unpleasant place of banishment. The Acoemetae may have been Peter’s original community, which could explain why the monks, renowned for their fierce endorsement of Chalcedon, welcomed him, a doctrinal rival.16 They also had a strong commitment to aid refugees from public justice. Lay people took advantage of this opportunity as well. In 478, Leontia, the wife of the usurper Marcian, hid in the monastery of the Acoemetae, which induced the emperor Zeno to treat her like an exile and confiscate her property.17 It is therefore possible that some incidents, which for the sake of dramatisation of an exile’s story later on became described as ‘banishment’ to a monastery, began as sanctuary offered by a monastic community, similar to the incidents of forced clerical ordination described in Chapter 7. Alongside such retrospective regulations of individual exiles’ behaviour, however, monasteries were also explicitly chosen by state authorities, with encouragement and collaboration by sympathetic bishops and monastic leaders, as institutions that could assist in monitoring and manipulating deposed clerics and unruly ascetics seen as in need of control. We have already observed such motivations in the preceding chapter in the case of Pelagius of Rome, who sought to rally state authorities behind his attempt to confine a schismatic bishop in a monastery, conveniently located on an island.18 Such lobbying had a long tradition and at times met with more success. For instance, in the wake of the Council of Chalcedon and emperor Marcian’s quest to submit the Eastern Church to unanimous acceptance of its decisions, Theodosius of Jerusalem, who sternly resisted subscription to the council, was arrested at Antioch and sent to the Chalcedonian monastery of Dios in Constantinople.19 According to his biographer, John Rufus (a Miaphysite bishop of Maiouma in Palestine in the early sixth century), this happened on request by the monastery’s abbot who promised to win Theodosius over to his faith. John Rufus’ story is an 15 16

17

18

Liberatus, Breviarum 17 (ACO 2.5:130). Theophanes, AM 5967 (de Boor 121): κρυπτόμενον. On Peter the Fuller’s relationship to the Acoemetae see Hatlie (2007) 112. On the doctrinal position of the community see Hatlie at 110–111. John of Antioch, frgm. 234.4 (Mariev:430); Evagrius, Ecclesiastical History 3.26 (SC 542:454) in turn knew that Marcian himself hooked up with some monks in Caesarea. On the Acoemetae’s customary aid for refugees from justice see Hatlie (2007) 103. John of Antioch, frgm. 234.2 (Mariev:426–427) reported that also the empress Verina was made a nun, at Tarsus, during the reign of Zeno. Both Leontia and Verina seem to have been later removed from these monasteries to the fortress of Papirius. See above Chapter 7. 19 See above Chapter 9. On the monastery of Dios after Chalcedon see Hatlie (2007) 117.

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idealising account of Theodosius’ suffering, but this does not exclude the possibility that he described the emperor’s and the abbot’s motivations accurately.20 In 455, in a similar vein, Marcian removed two influential monks, Carosus and Dorotheus, supporters of the condemned archimandrite Eutyches, from their monasteries at Constantinople to monasteries in support of Chalcedon, to terminate their unremitting lobbying for Eutyches in the capital, as noted with satisfaction by Leo of Rome. Leo may in fact have petitioned the emperor to this effect.21 Under Justinian, episodes of the infliction of monastic confinement to coerce correct religious behaviour intensified and also became more proactively pursued by the emperor himself. Among the prominent individuals who suffered such treatment were the senior clerics who refused to subscribe to the condemnation of the Three Chapters, which they saw as undermining the principles of Chalcedon. These included Pelagius, at this point still a Roman deacon, held ‘in exile’ at various monasteries at Constantinople after the Council of Constantinople in 553, who eventually gave in, which paved his way to becoming bishop of Rome in 556.22 Remarkably, this experience did not deter Pelagius from suggesting monastic confinement for a religious opponent when bishop himself, which attests to the general consensus among ecclesiastical and public authorities about the social and spiritual benefits of such measures in the sixth century. Another monastic exile at Constantinople in the early 550s, Primasius of Hadrumetum also recanted his opposition to Justinian’s policies and returned not only to his see, but to the primacy of Byzacena.23 For this volte-de-face and promotion he was heavily rebuked by his fellow African exile Victor of Tunnuna, who had already spent a period of banishment in 544 at, among other places, the monastery of Mandracium in Carthage, probably pronounced by the Praetorian Prefect of Africa or the governor of Africa proconsularis, after rejecting Justinian’s edict condemning the Three Chapters. In 555, Victor was to start, together with Theodore of Cebarsussi, another exile odyssey, which took them first to Alexandria. Initially they were held at the carcer of the Praetorium in Alexandria and then at the castellum Diocletiani, but were eventually allowed to reside (like Timothy Salophakiolus a few decades earlier) at the monastery called Metanoia at Canopus. This was a community famous for its support of 20 21 22

23

John Rufus, On the Death of Theodosius 5 (CSCO 7, Script. Syr. 7:23). Leo, epp. 81 (ACO 2.4:90), 86 (ACO 2.4:95) For the place of his exile see Pelagius, ep. 80.2 (Gassò and Batlle:197); Pelagius, In defensione trium capitulorum 4 and 6 (Studi e Testi 57:32, 67, 68). See also PCBE 2:1710–1716. Victor of Tunnuna, Chronicle 552.2 (MGH AA 11.2:203).

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Chalcedon and hence likely to be sympathetic to Victor’s views. In any case, stay at their monastery was certainly more comfortable and dignified than Victor and Theodore’s previous places of confinement. It may hence be possible that the African bishops’ transferral to the monastery was the result of negotiations between the monks and the civil authorities (or military authorities if the castellum Diocletiani refers to a military fort). At Canopus, the monastery had probably inherited, at least in cultural perception, the privilege to grant asylum from the ancient pagan sanctuary, on which territory it had been erected in 391.24 Nonetheless, this did not prevent Victor and Theodore from being moved eventually, in 565, to a series of monasteries in Constantinople.25 Further African bishops were interned in the city’s monasteries during this time, and some, who had previously been banished to Egypt were also transferred closer to Constantinople, and possibly to monasteries. The frequency at which this happened suggests that the emperor strategically hoped to be able to influence their views in this way.26 While Justinian hence had prohibited the confinement of troublesome exiles in 529 in any kind of ϕυλακή, as we have seen in Chapter 7, he not only afterwards ordered such confinement himself on a grand scale, but also officially prescribed it in 546 in the form of monastic exile. While it is unclear whether the emperor himself drew a connection between prohibited forms of confinement, which had included fortress banishment, and confinement in a monastery, affected exiles certainly may have done as we shall see. For the emperor, however, the benefits of monastic confinement were unambiguous. It provided scope for control of movement and religious coercion, but also helped to maintain an imperial image of clemency and Christian virtue. The banishment of the patriarch of Constantinople Eutychius, who refused to accept the ageing Justinian’s aphthartodocetist edict in 565 (supporting the view of Julian of Halicarnassus that Jesus’ body had been incorruptible from conception), tells a tale of such alternating expressions of coercion and clemency through the medium of monastic exile. Eutychius was first sent to the (otherwise unknown) monastery of Choracudis in Constantinople, where he seems to have suffered some abuse. Later he was moved to the more lenient monastery of Osias near Chalcedon. As a result, he was able to refuse Justinian’s summons to court, which suggests that the emperor respected the monastery’s power of protection. 24

25 26

On the monastery’s Chalcedonian credentials, perhaps not as strong in the sixth century as before, and its rights of immunity (mentioned in ACO 2.1:217) see Gascou (1991) 1608–1611. Victor of Tunnuna, Chronicle 555.2, 556.2, 565 (MGH AA 11.2:204, 205). See above Chapter 7 and Appendix III.

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Once he was formally deposed, Eutychius was banished to the island of Principus, where he was held under military guard, possibly at the local copper quarries, and finally was allowed to reside in his original monastery at Amasea in Pontus.27 This was a classic carrot-and-stick strategy employed by the emperor to make Eutychius toe the line, which characteristically ended in a magnanimous order to, essentially, retire home to monastic penance, conveniently located at the margins of the empire.28 The appeal religious dissidents’ monastic exile had for Justinian is shown most succinctly by the events ensuing after the synod held at Constantinople in 536. On instigation of Agapitus of Rome, who was visiting the imperial city, the synod had deposed the bishop Anthimus of Constantinople, of Miaphysite leanings, who was duly banished by Justinian, together with other Miaphysite leaders, including Severus of Antioch and Peter of Apamea (who once again returned to Egypt). Yet, rather than being expelled from the city, Anthimus was subsequently hosted by the imperial couple in the so-called palace of Hormisdas, which adjoined the Great Palace.29 In the following years, the palace was turned into a monastery for up to 500 Miaphysite clerics and monks, many of whom came to escape public prosecution. Theodosius of Alexandria and John of Hephaistopolis, who at first had been sent to a fortress in Thrace as we have seen in Chapter 7, later were also transferred to the palace of Hormisdas, and eventually were allowed to live in the suburb of Sykai, which housed a number of Miaphysite monasteries founded in this period on imperial land.30 John of Ephesus, who came to reside at the palace of Hormisdas himself for a period of time after 542, described the situation squarely as a result of Theodora’s patronage and her Miaphysite sympathies. Yet, John also made it clear that Justinian supported the initiative, curiously offering asylum from his own jurisdiction. At the same time, the installation of a community of Miaphysite clerics or monks in the imperial palace was not only meant for protection, but, since the banished were held on the emperor’s own territory, was an ingenious method to control movement and curtail the Miaphysite leaders’ activities.31 27

28 29 30

31

Life of the Patriarch Eutychius 38, 40 (PG 86:2317–2320, 2321); Theophanes, AM 6057 (de Boor 240). On Choracudis see Janin (1969) 541. Eutychius was later recalled under Justinian’s successor, Justin II. John of Ephesos, Lives 47 (PO 18:680–681). John of Ephesus, Life of Z’ura (PO 17:27); Life of John of Hephaistopolis (PO 18:537); Victor of Tunnuna, Chronicle 540 (MGH AA 11.2:199). On both the monastery in the palace of Hormisdas and the monasteries at Sykai see Hatlie (2007) 144–145. See Ashbrook Harvey (1990) 81: she calls it a ‘house prison’; for analysis of the emperor’s motivations see also Evans (2002) xii–xiii; 74.

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Public law, monastic confinement, and the social benefits of penance While Justinian’s law on monastic exile of banished bishops can be directly connected to the emperor’s and his predecessors’ pursuit of Christian unity in doctrine, his laws that introduced monastic confinement for cases of inappropriate clerical conduct and marital offences, in turn, reflect the emperor’s keen interest in two issues integral, to his mind, to Christian order on earth, the daily moral integrity of the clergy and the chastity of lay marriage. The emperor here, again, may have been responding to and capitalising on already existing judicial practices, particularly in the case of misbehaving clerics, but he gave the practice a distinctively universalising aspect that connected it to a contemporary understanding of both the spiritual and the social benefits of penance. Judging from the introduction of monastic confinement for a rather random selection of clerical misconduct, Justinian’s transformation of wayward clerics’ monastic confinement into a public penalty may have partly arisen in order to address concrete cases of confusion about public and ecclesiastical competences in the case of church order. Some of these offences were of a type for which a charge at a public court could be brought and on which previous emperors had already legislated. For example, both Leo in 470, and Anastasius in 511, had prohibited the sale of church lands to heretics and imposed fines on any stewards undertaking such negotiations.32 Also clerics committing perjury in civil disputes were to be submitted to public prosecution in earlier imperial law.33 Other offences for which Justinian prescribed monastic confinement had traditionally been strictly seen as church business, such as the issue of clerics gambling or attending the public games, which was a topic dear to church council legislation but before Justinian had not been addressed in public law.34 The customary separation prior to Justinian of church affairs and public affairs can best be exemplified by the regulation of the issue of the abduction or seduction of consecrated women, including deaconesses, in previous public law. While earlier imperial laws had ordered harsh punishment for the abductor, a penalty for the woman herself had never been specified, other than loss of her property to either the monastery, in the 32 34

CJ 1.2.14 (470); CJ 1.5.9 (511). 33 CTh 11.29.10 (385/386); CJ 4.20.12 (486). Council of Elvira (306), c. 79 (Vives 15); Council of Laodicea (363–364) c. 54 (NPNF 2.14:157); Apostolic Canons 42 (= Apostolic Constitutions 8.47; Funk 576–578); Council of Hippo (393) ser. 2 c. 11 (CC 149:37), on sons of clerics. On clerics gambling Justinian had already legislated in 534, but at this time had ordered only a period of suspension without specifying where it was to be spent: CJ 1.4.34.7 (534).

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case of nuns, or the church, in the case of deaconesses.35 Church councils, in turn, frequently prescribed excommunication of lapsed consecrated women, to be followed by periods of penance of varying length, including lifelong penance.36 Justinian now also officially equipped public judges to deal with such issues and enforce penance. This understanding of church business as a state affair concisely reflects Justinian’s wider sense of duty to keep the Church in shape, as part of his care for the empire. As he explained elsewhere, it was the greatest matter of concern to the emperor that clerics’ dignity be preserved, in order to ensure the purity of their prayers to God.37 Public law had to be made fit to shoulder this task. At the same time, however, Justinian also incorporated into public law a penalty customary for clerics tried in ecclesiastical courts, monastic confinement, which anticipated a public judge to involve a bishop in the penal process. What the emperor envisaged, therefore, was cooperation between bishops and public judges when it came to clerical misconduct by aligning penal procedures. Significantly, many of Justinian’s prescriptions of monastic confinement were contained in his Novel 123, a long legal promulgation that sought, as the emperor said in its grand opening, to give a comprehensive take on imperial legislation on church business, and in the process endorsed an overlap of public and ecclesiastical criminal procedure, as we have discussed at length in Chapter 3.38 Justinian’s laws that introduced monastic confinement for divorce and adultery, in turn, needs to be seen in the context of the emperor’s and the imperial couple’s support for the institution of Christian marriage, a concern whose intensity was also a subject of contemporary comment, especially by the emperor’s most vocal critic, Procopius.39 In both laws, we can observe a complete reversal of previous legislation on these marital offences, including in Justinian’s own earlier legal promulgations on the issues. In his law on adultery, monastic confinement replaced the death penalty for adultery, which the emperor himself had still referenced as the 35

36

37 38 39

Laws on abduction of consecrated women before Justinian: CTh 9.25.1 (354); 2 (364); 3 (420) = Sirm. 10, NMaj 6.4 (458). Justinian’s earlier laws on raptus of consecrated women: CJ 9.13.1 (528); CJ 1.2.41; CJ 1.3.53 (533); see also Arjava (1996) 39. Councils of Elvira (306) c. 13 (Vives 4); Ancyra (314) c. 19 (NPNF 2.14:71); Rome (402) c. 1 and 2 (see Hefele (1984) 429); Arles ii (442–506) c. 52 (CC 168:124); Chalcedon (451) c. 16 (ACO 2.2.2:37); Vennes (461–491) c. 4 (CC 168:152); Orléans (538) c. 19 (SC 353:246). NJust 6 pr. (535). See on this attitude also Browning (1971) 61; Leppin (2011) 109. NJust 123 pr (546). On the motivations behind the law see also Leppin (2011) 279. On Justinian’s and Theodora’s interest in marriage and Procopius’ scorn see Fisher (1984) 305; Moorhead (1994) 100; Evans (2002) 33, 111.

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statutory penalty a few years earlier.40 In the case of divorce, Justinian’s introduction of monastic confinement precluded the right of the ‘guilty’ divorcee to remarry, which, despite the criminalisation of unilateral divorce under Constantine, had a long tradition in Eastern Roman divorce law, also during Justinian’s earlier reign.41 Furthermore, the laws also factored in the reconciliation of husband and wife. In the case of adultery, this was a striking innovation, since hitherto Roman law had stipulated that dissolution of marriage had to follow a conviction for adultery. A husband who did not divorce his wife could have faced a charge of procuring (lenocinium).42 Now, Justinian explained, husband and wife could get back together ‘without fear’ of such an accusation and without damage to the marriage, if the husband so wished. It is in particular in this last provision that we can observe the social context of Justinian’s marriage law. Reconciliation after adultery responded to the Christian rejection of the death penalty and notions of the indissolubility of marriage.43 Yet, it may also have been often in the interest of a woman’s family, either of blood or marriage. Novel 134 was explicitly concerned with ordering provincial administration, including criminal jurisdiction of provincial governors. Already since the time of Constantine the right to bring an accusation for adultery had been restricted to husbands in the first instance and a woman’s agnate relatives (her paterfamilias and his other descendants). This allowed a woman’s family, in practice, to settle a case of sexual misbehaviour at home or through mediation, which often, in a provincial context, may have been performed by the local bishop, as we have discussed in Chapter 3. Constantine’s legislation probably responded to the long-standing resistance of families to bring their most intimate affairs to court, and the same may apply to Justinian’s.44 Justinian’s interest in strengthening the role of families, and in particular husbands, in the redress of female deviance is also reflected elsewhere in his legislation. For example, contrary to earlier legislation, he permitted an aggrieved husband to kill his wife’s lover (but not his wife) even on suspicion if he found the two in incriminating 40 41

42 43

44

Justinian, Institutes 4.18.4 (CIC iii:55). On the development of late Roman divorce legislation, and the differences between East and West see Kaser (1975) 174–179; Evans Grubbs (1995) 226–242; Arjava (1996) 177–183; and see also above Chapter 6. See CJ 5.17.10 and 17.11 (528); NJust 22.6 and 22.18 (536); 53.6 (537); 74.5 (538) on Justinian’s earlier divorce legislation. McGinn (1998) 171–194. On Christian attitudes to divorce after adultery, which were however often ambiguous, see Arjava (1996) 183–184. On Constantine’s motivations see Evans Grubbs (1995) 212.

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circumstances and had given warning three times to the alleged adulterer.45 In Novel 134, Justinian even integrated the husband into public punitive processes, should he wish to bring a public accusation. He conferred on him the power to either take his wife back after a period of two years, which also may have been designed to allow for an eventual pregnancy and the baby’s weaning, or to consign her to the monastery permanently. In either case, his family honour and his Christian conduct were safeguarded through this spiritually enhanced domestic seclusion. In the previous chapter we have seen a bishop, Pelagius of Rome, suggesting a similar course of action in a case of adultery brought to his attention.46 While this case postdates Justinian’s adultery law by two years, it nonetheless provides an example of the kind of collaboration between bishops and husbands that may have prompted the emperor’s legislation. Even where reconciliation between husband and wife did not happen, monastic confinement of adulteresses and divorcees provided a further social benefit beyond the preservation of family honour. According to Justinian’s law, if a husband did not take an adulterous wife back, her monastic confinement opened up the possibility for him to divorce her, to keep the dowry and pre-nuptial donation and to remarry, for in 531 and in 536 Justinian had already established monastic conversion of one spouse as a legitimate reason for divorce. This, of course, also meant that unilateral divorce, to be punished equally with monastic confinement, allowed the ‘innocent’ spouse to keep the dowry and remarry.47 Justinian, hence, in a traditional Roman way, did not adhere to an absolute notion of indissolubility of marriage. For the emperor, continuity of marriage did not necessarily mean one lifelong marriage, but continuity of the married status, which would ensure the production of heirs, the transfer of property within the family and an outlet for sexual desire.48 Procopius again provides us with a commentary on these views when he maliciously reported on Theodora’s campaigns for the institution of marriage among the aristocratic families of Constantinople, obliging everybody around her to get married or remarried, even widows who she accused of living ‘unchaste lives’.49 The law on monastic confinement came to play a role in this campaign for marriage, criminalising unilateral divorce, but at the same time freeing one spouse to resume married status elsewhere. While this was certainly in the interest of the latter, for some Church authorities, divorce, 45 47 48 49

46 NJust 117.15 (542). Pelagius, ep. 64 (Gassò and Batlle:167–168). See above Chapter 9. CJ 1.3.52.15 (531); NJust 22.5 (536). On this loophole see Noonan (1968) 58, 68, 89. For Justinian’s interest in the continuity of the family see also Krumpholz (1992) 159, 203. Procopius, Secret History 17.7–17.15, 28–37 (Loeb 200–202, 206–208).

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and hence remarriage, even after one spouse had entered the monastic life, was controversial, for it violated the sacredness of Christian marriage. A few decades after Justinian’s death, Gregory the Great, called in to adjudicate the case of a woman whose husband had entered a monastery in Sicily against her will, explained that either she also had to adopt the monastic state or her husband should return to her, but certainly the marriage had not been dissolved, even if public law said so.50 Justinian, however, did not perceive a conflict between his divorce legislation and the views of Church authorities.51 On the contrary, he entrusted the local bishop with transferring a woman ‘guilty’ of unilateral divorce to monasteries under his jurisdiction.52 Bishops were to be part of the emperor’s scheme to restore marital order by withdrawing those who did not comply from civil life. Perhaps this reflects that, in practice, bishops were in fact often instrumental in encouraging such withdrawals. As we have seen in the previous chapter, there were certainly bishops, such as Pelagius, who valued the potential that monastic retreats, in particular of women, had for the maintenance of domestic peace. Yet, it would be wrong to see the emperor’s adoption of monastic confinement into public law only as a pragmatic move, to integrate ecclesiastical justice into public government or to underline a bishop’s or husband’s authority in the described circumstances. Its promulgation was also, and perhaps more importantly, a way to advance Justinian’s vision of his rule. It is probably no coincidence that Justinian’s laws on monastic confinement nearly all date from the time after the year 542, a watershed in his reign.53 Due to his own illness during the plague that hit Constantinople in this year and almost took Justinian’s own life, the deterioration of the war in Italy and a series of further natural disasters around the Eastern Mediterranean during the 540s, the emperor became ever more focussed on ordering Christian society and ensuring his subjects’ spiritual worth. The latter half of his reign was, of course, dominated by Justinian’s attempt to heal the doctrinal conflicts within the Christian church, a plan that spectacularly failed during the Three-ChapterControversy. Yet, it also saw a high degree of attempts to improve dayto-day clerical and lay Christian morality, which surpassed the activity of

50

51 53

Gregory the Great, ep. 6.49 (CC 140:422); ep. 11.30 (CC 140A:918–919). On a similar perspective see Basil, Moralia, Rule 73.1 (PG 31:849–851). A point also noted by Noonan (1968) 76–77. 52 NJust 117.13 (542). On the role of the year 542 and the latter part of Justinian’s reign see Meier (2002) 277–299; Leppin (2011) 251–315.

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any other emperor before.54 The more proactive incorporation of monastic space into the administration of punishment in this period was part of this new direction of imperial rule. Where the laws on monastic confinement spoke of ‘penance’ (μετάνοια) of those submitted to it, and as a chance to ‘correct’ (διορθώσηται), this was no empty lip service or simple repetition of ecclesiastical norms.55 Justinian’s laws on monastic confinement, in fact, reflected an urgent understanding of the monastery as penitential space that, as we have already seen in previous chapters, was widespread in sixth-century monastic discourse. In the East, the Christian ascetics’ acceptance of perpetual human sinfulness led to the endorsement of a system of mutual control and assistance between monks to ensure the penitential performance of each individual member. For example, Basil of Caesarea suggested closely watching and caring for those monks who had sinned or were in danger of sinning.56 Basil’s defence of the coenobitic lifestyle, as opposed to a solitary or less reglemented life, in his Long Rule was based on the advantage that monks could educate each other when needed.57 In fact, it has been argued that for Basil the very function of the ascetic community was its programme of consultation, encouragement, advice and correction, which worked vertically, flowing from a spiritual father, and horizontally, among monks.58 Between 535 and 539 Justinian issued two laws that tried to regulate the life of monks (and in 539 also nuns) along these lines. Both laws were addressed to the patriarch of Constantinople, and hence perhaps inspired by him, and made specific references to monastic life in the city, so it can be assumed that their primary aim was to bring order to the institutions of the emperor’s capital.59 The two laws pre-date his legislation on monastic exile. We should certainly not assume that Justinian sought to create, through these laws, monasteries as government institutions purely for the administration of the public penalty of monastic confinement. Yet, we could assume that for the execution of the penalty of monastic confinement the emperor had a monastery in mind that would comply with the standards he set out in these laws. In many ways, they were an imperial endorsement 54 55 56

57 59

Meyendorff (1983) 82; Gallagher (2002) 30–31. NJust 123.10.1 (546); NJust 123.11.2 (546). Basil, Short Rule 20 (PG 31:1096): ‘those who are known to be in sin must be more closely watched’ (Τοὺϛ δὲ ἐν ἀμαρτίαιϛ ἐξετασθένταϛ καὶ πλέον ἀκριβεύεσθαι χρή). See also Short Rule 19 (PG 31:1096). 58 Basil, Long Rule 7 (PG 31:929). Rousseau (1994) 219. NJust 5 (535); NJust 133 (539). On Justinian’s monastic legislation see Frazee (1982) 263–279; Hatlie (2007) 45–50.

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of the monastic principles promulgated at the Council of Chalcedon in 451 ad. As is well known, the Council of Chalcedon was also an attempt by the attending bishops to restrain the power of the often violent ascetic partisans that had dominated the Christological controversies of the earlier fifth century by preferring monks resident in stable communities over wandering holy men and putting monasteries under the control of the local bishop.60 Yet, Justinian developed these principles further by delineating the role he wished monasteries to play for the state. As he explained in the law issued in 539, he expected monks and nuns to pray for the well-being of the empire, which made their life choice not only useful for themselves, but for society as a whole.61 For Justinian, monks were able to provide intercessory prayer for human sinners, because, as he explained in his laudatory preface to the law issued in 535, monastic life, if properly conducted, cleansed from human sin. Life in common in particular, he continued, ensured that monks would assist with the penance of each other. They were to ‘witness one another’s honour and chastity, . . . and may only reflect upon what is good.’62 Accordingly, Justinian set out to create the framework to facilitate such mutual control and to protect it from being disturbed by pollution from the outside world. Justinian tried to establish monasteries as robust institutions by granting them ownership over the property of people who entered the monastery (NJust 5.4–5.7). Furthermore, he stressed the authority of the bishop in monastic activities, such as foundation, building, alienation of property, confirmation of abbot election and most importantly relationships with the outside world. The bishop was to appoint an ecclesiastical agent for each monastery (NJust 5.1, 9; 133.4).63 Finally, the emperor regulated the minute details of daily monastic life. He strongly adhered to the ideals of a coenobitic lifestyle, which should be reflected in monastic architecture and the patriarch was to demolish all monastic edifices that did not comply with these standards. All ascetics were to live in buildings with only one or two guarded gates and surrounded by walls (NJust 133.1). Leaving the monastery was allowed for church visit only, and exchange 60 61

62

63

Caner (2002) 206–241. NJust 133pr. (539); on Justinian’s understanding of the purpose of monasteries see also Moorhead (1994) 118–119; Humfress (2005) 179. NJust 5pr; NJust 5.3 (535): ὥστε μάρτυρας τῆς ἀλλήλων γíνεσθαι κοσμιότητός τε καì σωϕροσύνης, καì μηδὲ τὸν ὕπνον αὐτὸν ῥάθυμον ἔχειν, αλλὰ μελετῶντα τὴν εὐκοσμíαν διὰ τὴν τῶν ὀψομένων ἐπιτíμƞσιν. See also NJust 67 (538?), ordering that all monasteries must first receive episcopal permission to be built, and in addition it stipulated that the bishop must be assured that they have sufficient endowment for their upkeep.

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even with family members was restricted (NJust 133.2–133.3). Within the walls, however, there should not be any private rooms, except for the most spiritually advanced members of the community. Everyone should study, work, eat and sleep together (NJust 5.3; 133.1). Monastic space was hence to have clear boundaries to the outside sinful world, but at the same time make transparent and visible all sinful behaviour within these boundaries. The similarity between Justinian’s regulations and contemporary sixthcentury Western rules is striking and reflects a rising cross-Mediterranean understanding of entire monastic communities as both penitential and thereby holy. While individual holy men had been traditionally seen as mediators between God and man the concept of monastic communities’ collective intercessory prayer, which would characterise religious life throughout the Middle Ages, was beginning to emerge in the sixth century. The difference between Eastern and Western developments in this period was, however, that in the East it was a lay monarch dictating the rules and as such partly driving the change.64 A previous sinful life and monastic membership, therefore, did not exclude each other, but, on the contrary, embracing the ascetic lifestyle was the most visible expression of repenting one’s sins for Justinian. When, in 535, the emperor dealt with the apparently frequent occurrence of slaves who had stolen from their master and subsequently entered a monastery, he ordered that these should not be returned to their masters after having completed a three-year noviciate. Still, the Council of Chalcedon had ruled that all slaves were to be returned to their master.65 Yet, as Justinian now explained, ‘even though [the slave] committed some offence in his previous life – for human nature is commonly prone towards offences – the three years’ witness [of his faith] shall suffice for a proper purging of sins and for having become more virtuous’.66 Justinian’s idea of the monastery as a community of purified sinners, protected against further sin through collective prayer and strict enclosure, also becomes apparent in a remarkable enterprise of the emperor and his wife Theodora that is closely related to his introduction of monastic confinement as a public penalty. According 64

65 66

On contemporary western provisions see above Chapter 8 regarding walls, and, regarding innermonastic space see e.g. Rule of the Master 11, 108–121 (SC 106:30–32); Rule of Benedict 22 (SC 182.2:540); Rule of Aurelian to the Monks 8; 35; Rule of Aurelian to the Nuns 6 (PL 68:389, 391, 401); Rule of Ferreolus 16, 33 (PL 66:965, 971); see also De Vogüé (1965) 39–62; Gradowicz-Pancer (1999) 182–186. On the similarity between Justinian’s provisions and the Rule of Benedict see Jenal (1995) 812–815. On the Western development of monasteries’ intercessory prayer see De Jong (1995) 647–651. Council of Chalcedon (451), c. 4 (ACO 2.1:355). NJust 5.2 (535): ἀλλ’οὗν ἀρκεῖ πρòς μετρíαν κάθαρσιν τῶν ἡμαρτημένων καì πρὸς ἀρετῆς ἐπíδοσιν ἡ τοῦ τριετοῦς χρόνου μαρτυρíα.

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to Procopius, the imperial couple set out to rescue the prostitutes of Constantinople by sending them into a purpose-built monastery to undergo penance. In his panegyric on the building programme of Justinian, written around the year 555, Procopius related: The Emperor Justinian and the Empress Theodora . . . cleansed the state of the pollution of the brothels, banishing the very name of brothel-keepers, and they set free from a licentiousness fit only for slaves the women who were struggling with extreme poverty, providing them with independent maintenance, and setting virtue free. This they accomplished as follows. Near that shore of the strait which is on the right as one sails toward the Sea called Euxine, they made what had formerly been a palace into an imposing convent designed to serve as a refuge for women who repented of their past lives, so that there through the occupation which their minds would have with the worship of God and with piety they might be able to cleanse away the sins of their lives in the brothel. Therefore they call this domicile of such women ‘Penance’ (Μετάνοιαν) in keeping with its purpose.67

The foundation of this monastery in an imperial palace at the Dardanelles cannot be precisely dated, but may be connected to Justinian’s expulsion of procurers from Constantinople and closure of the city’s brothels in 535.68 It was certainly inspired by the strong tradition of the repentant prostitute in Eastern hagiography. Stories such as the Life of Pelagia or the Life of Mary of Egypt, prostitutes who embarked on a life of ascetic self-mortification, circulated in sixth-century Constantinople and may have been particularly dear to Theodora, a former actress who thrived on the image of being a purified sinner.69 Procopius’ account succinctly captured the imperial couple’s understanding of monastic space’s potential to both protect the sexual morals of society and reform even the most depraved sinner (in addition to, pragmatically, providing material maintenance). Monastic confinement of adulteresses was part of the same imperial concern, and it equally tapped into more traditional and Christian cultures of stigmatisation. It subverted the age-old Roman association of the adulteress with the sexual impurity of the prostitute, which in previous centuries could even have led to her assignment to a brothel, by enclosing her within a community trained in moral correction and hence capable of aiding her return to a state of chastity. As such, once again, monastic 67 68 69

Procopius, Buildings, 1.9.8 (Loeb 77; slightly modified). For Justinian’s legislation against pimps see NJust 14 (535). See also above Chapter 7. While the textual transmission of the Life of Pelagia and the Life of Mary cannot be dated to earlier than the seventh century, the written versions drew on earlier oral tradition. On both and the hagiographical topos of the repentant harlot in general see Ward (1987) 26–75; Coon (1997) 77–94; Cox Miller (2003) 419–435. On Theodora’s relationship with her past see Garland, L. (1999) 11–12.

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confinement of the adulteress reflected the image of the repentant harlot.70 In one of the most powerful developments of this hagiographical motif, the Life of Theodora of Alexandria, dating from the fifth or sixth century, the heroine was an adulteress who, dressed as a man, sought out a male monastery to atone for her sin.71 While we cannot be sure, also due to uncertainties of dating, whether Justinian knew this Life, it succinctly reflects the resilient link between female sexuality, sinfulness and monastic penance made in contemporary imagination. Significantly, however, it was only for adulteresses (and divorcees) that forced penance in a monastery became legally prescribed, while penance of prostitutes only made it into imperial practice. The lack of legal interaction for the latter was perhaps due to the principle of Roman law that a prostitute, while being sexually promiscuous, nonetheless did not commit a public crime.72 In the Life of Theodora, the wife-monk refused to return to her husband, even on the promise of forgiveness. When they met, he did not recognise her due to her male disguise. The couple were only united after her death, when a divine vision brought the husband to the monastery and he decided to also enter the ascetic life.73 This turn of the story corresponds to its monastic and devotional agenda, representing the prospect of reconciliation (which would also have meant re-acceptance of her female body) as just another temptation for the saint to endure. Yet, the literary strength of the temptation lies in the fact that the wish for reconciliation after adultery often must have been real for late antique couples. This is what Justinian’s law acknowledged, which, as we have seen above, allowed the adulterous woman to return to her husband and to resume her marital duty. Tellingly, however, this was only allowed after the adulteress – any adulteress, not just pregnant ones – had passed a period of penance in the monastery. What this means is firstly that the emperor viewed adultery not only as a public crime and a threat to family continuity, but also as Christian sin warranting penance, and secondly that he believed the period of penance, and particularly penance spent in a monastery, paved the way for social re-integration. This was not entirely in accordance with ecclesiastical 70

71 72

73

On the link between the convicted adulteress and the prostitute in Roman law see above Chapter 7. On the symbolism behind Justinian’s ‘reconfiguration’ of adulteresses as nuns, rather than prostitutes see McGinn (1997), 114–115; McGinn (1998) 171. Life of Theodora of Alexandria (fifth to sixth century) (AASS Sept. 3:788–797; BHG 1727–1730). Unilateral divorce and adultery could be legally charged through public accusation, while intercourse with a prostitute could not: Rousselle (1988) 84–85. Life of Theodora of Alexandria (fifth to sixth century) (AASS Sept. 3:788–797; BHG 1727–1730).

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norms, which, as we have seen in Chapter 3, often prescribed ex-penitents’ sexual abstinence for life.74 We witness a similar perspective on monastic confinement as equipping a penitent to return to the world in Justinian’s laws on clerics who had violated church discipline. Both for clerics committing perjury in civil disputes and for clerics gambling, Justinian ordered a short-term suspension to be spent in a monastery and a subsequent return to the ministry. For the latter offence, which was considered of a less serious nature, the bishop was to closely monitor the penitential performance, and if it was ‘in proportion to his sins’ he could restore the cleric in question to his office before the prescribed period of time had elapsed.75 Similar to adulteresses, Justinian hence hoped that monastic confinement and its opportunity to perform a superior form of penance enabled a cleric to resume their duty with honour. Again the emperor’s understanding of the consequences of clerical penance differed significantly from ecclesiastical law, particularly in the case of perjury. As we have seen, a series of Gallic church councils held between 506 and 538 had declared that a bishop, deacon or priest deposed for adultery, fraud or perjury had to retire permanently to a monastery to perform penance.76 It is not unreasonable to assume that Justinian was familiar with this legislation. The 540s were, in fact, due to Justinian’s visions of re-conquest a time when the Mediterranean regions were drawn together in an unprecedented fashion. Justinian’s legislation on monastic confinement for clerics fell exactly in the years when contacts between Gaul and the imperial court in Constantinople intensified over the question of the Italian war. These diplomatic discussions used ecclesiastical routes of communication, which may well have transmitted knowledge about ecclesiastical norms.77 Yet, even if Justinian took into account such intelligence, he gave it a less rigid reading. As we have already seen in Chapter 4, Justinian was not only interested in the purpose of penance as preparation for final judgement, but also in its possibility to engineer Christian society. Penance spent in a monastery, aided by the public penalty of monastic confinement, ensured continuity of two important social institutions, the clergy, and the family. 74

75 76

77

See above Chapter 3. On ecclesiastical prescriptions on penance to redeem adultery, which differed in length and procedure from region to region, see Evans Grubbs (1995) 221–225. On Justinian’s deviance from ecclesiastical norms see also Lovato (2004) 85–91. NJust 123.10.1 (546): εὶ δὲ ἐν τῷ μέσῳ χρόνῳ δείξει ἀξíαν τοῦ ἰδίου πταíσματος μετάνοιαν. Councils of Agde (506) c. 50 (CC 148:225); Épaone (517) c. 22 (SC 353:112); Orléans III (538) c. 8 (SC 353:238). See above Chapter 9. Epp. Arelat. 43, 44 (MGH Epp. iii:63–66); see Ewig (1983) 15.

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The period of penance, in these cases, provided offenders with an opportunity to show their worth in front of God, but also to regain their honour in front of society. This view corresponded accurately to the more general cultural acceptance in the sixth century, described in the previous chapter, of the spiritual and social benefits that came with the uncanonical, yet highly respected, short-term format of monastic penance. In the East, such cultural acceptance may have been supported by what Claudia Rapp has called the concept of ‘vicarious penance’, a strong understanding of monks’ ability to shoulder sins of the less spiritually advanced, and to act as a guarantor and intercessor at final judgement.78 The integration of not only monasteries but also husbands and bishops into the public penalty of monastic confinement, as brokers of monastic penance, clearly shows that Justinian was operating within a context of cultural consensus. The emperor may have been in defiance of ecclesiastical norms, but he clearly was in tune with ecclesiastical and social practice.

From monastery to prison: realities and images of monastic confinement As with all legal evidence of the late Roman world, it is difficult to say how frequently Justinian’s laws on monastic confinement were applied by public judges and, if they were applied, how such confinement was organised. With the exception of the story of repentant prostitutes reported by Procopius, our most detailed evidence on actual cases of monastic confinement of lay individuals and subordinate clergy derives from bishops’ jurisdiction, discussed in the previous chapter, which is further confirmation that this was the primary context inspiring Justinian’s laws.79 These laws, both those on monastic confinement and those regulating monastic life, envisaged a strong hierarchical link between bishops and monasteries. In reality, as we have seen in the previous chapter, this was not always accomplished, but it must have been common enough to warrant the emperor’s confidence that if bishops had a role in the administration of the penalty it could be successfully implemented. Similarly to what we have observed regarding Gregory the Great’s administration of monastic confinement, the emperor also sought to strengthen 78

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Rapp (2007) 136–145. As Rapp shows, the term was originally coined in German (‘Bußübernahme’) by the early twentieth-century theologian J. Hörmann. In Constantinople, monasteries were frequently used as places of banishment for members of the imperial family in the mid-Byzantine period (eighth to tenth centuries), but it is unclear whether this happened on the basis of Justinian’s legislation, see Goria (1974) 73; Talbot (1985) 103–117.

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monasteries’ commitment to house divorcees and adulteresses by stipulating that institutions were to receive up to two thirds of such convicts’ property (or one third if they had any children).80 Again, the parameters of property confiscation were a remarkable development from previous imperial law. Under earlier exile legislation, such property would have been assigned to the imperial treasury or a city council.81 The provision relieved the imperial treasury of the moral obligation to support convicts, often expressed in the reward of a stipend, thereby also conveniently isolating them from any other outside patronage, but also acted as a way to integrate monasteries into the administration of public justice. Yet, despite such benefits and the fundamental principle of hospitality and charity for the oppressed that underpinned late antique monasticism, it cannot be excluded that some monasteries may have felt that enforced hospitality represented a burden and an undue interference with monastic life, particularly when it came to hosting lay sinners.82 The fact that Justinian and Theodora installed the community of repentant prostitutes mentioned above in one of their palaces may suggest that at times they felt a purpose-built monastery served their aims better and more comprehensively than a pre-existing institution. The monastery that housed the prostitutes also subsequently remained under tight imperial control, for it was probably here that the fiancée and the mother of the usurper Heracleius were confined by Phocas in 610.83 Loss of property may of course also have been designed to tie convicts to monasteries. The same can be said for taking monastic vows, which those convicted of sexual crimes or offences against church discipline seem to have been obliged to undergo unless their stay in a monastery was temporary (perhaps after a period of excommunication and penance, as suggested by the two-year penance of the adulterous woman).84 In addition, the walls of a monastery quite literally provided enclosure. Although we know little of the physical lay-out of monasteries Justinian founded in Constantinople or elsewhere, both archaeological remains and textual references show that the emperor’s vision of strong-walled buildings, which allowed high control of access, were at times adhered to. Justinian’s most famous foundation 80 82

83

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81 NJust 117.13 (542); NJust 134.10 (556). See above Chapter 7. On late antique Christian writers’ qualms about indiscriminate hospitality, particularly for heretics, see Constantelos (1968) 12–16. Theophanes, AM 6102 (de Boor 298): he mentions an ‘imperial’ (δεσποτικὸν) monastery called τῆϛ Νέαϛ Μετανοίαϛ. On its relationship with Justinian and Theodora’s foundation see Janin (1969) 332. See the specification in NJust 134.10 (556) that adulteresses were to ‘assume the monastic habit’: κελεύομεν κουρεύεσθαι αὐτὴν καὶ τὸ μοναχικὸν σχῆμα λαμβάνειν.

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outside Constantinople, the monastery on Mount Sinai, later dedicated to St. Catherine, turned a loose congregation of hermits into a spatially ordered and heavily fortified community.85 According to Procopius, the monastery of Mandracium that the emperor built at Carthage and which, incidentally, later housed the exiled Victor of Tunnuna, resembled a fortress.86 Yet, it should be noted that while the walls of a monastery, vows and the loss of property to the institution may have prevented escape or communication with the outside world, the focus of the laws was equally on segregation from the world and spiritual improvement as it was on security. The aim was integration into the community and enforcing a penitential lifestyle onto these offenders, ensured by the rigid monastic regime of work, vigil, fasting, prayers and the mutual control facilitated by the panoptic architecture Justinian envisaged and perhaps realised in those monasteries he supported. In the so-called palace of Hormisdas at Constantinople, at least, internal transparency seems to have been as important as external walls. The imperial couple turned a large hall into the dormitory for the Miaphyiste exiles according to the principle of visibility of behaviour also detailed in Justinian’s rules, while only the old and honoured received their own cells.87 We therefore do not have to assume that convicts to monastic confinement were supposed to be held in a special environment within the monastery.88 To best understand real circumstances of monastic confinement ordered by imperial authorities we must return to the evidence involving dissident clerics recorded in the context of religious conflicts. It should be noted, however, that they are not representative of the public penalty of monastic confinement in general. While after 546 banishing a deposed bishop to a monastery, particularly one who was deemed to be troublesome, may well have happened with reference to Justinian’s legislation, it is not always clear, as we have seen, whether banished clerics ending up in monasteries were sent there by government order, let alone a formal sentence, or whether monasteries had offered them hospitality. Furthermore, the aim of a government order for a banished cleric to reside at a particular monastery was often to persuade him to subscribe to a particular doctrinal view or to curb his influence. While this could be framed as penance (and 85

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See Forsyth (1968) 1–19. There is evidence that some Eastern monasteries changed architecturally to more enclosed complexes at the time of Justinian, but it is unclear whether this was a result of his monastic legislation, or more universal monastic culture in the sixth century see Hirschfeld (1992) 63–64. Procopius, Buildings 6.5.11 (Loeb 380). John of Ephesus, Lives of the Eastern Saints 47 (po 18:678). 88 Goria (1974) 55–76.

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in Justinian’s law on exiled bishops it indeed was), the conditions under which a dissident cleric had to live in a monastery were arguably organised differently in order to facilitate a change of mind or to control movement than those of adulteresses and divorcees would have been, particularly where the latter were expected to join the monastic community permanently. Such conditions of monastic confinement, finally, were often described from the perspective of those who had suffered them, or those sympathetic with their views, so we need to assume a certain degree of amplification of experiences. As we shall see, such elaborations, once again, included the comparison between monastic confinement and imprisonment, even where authorities were keen to minimize the connection. The significant rise of dissident clerics’ monastic confinement under Justinian may be explained by the fact that the emperor could rely on a range of monastic institutions to be used for such purposes, particularly in Constantinople. On ideological grounds, monasteries of Chalcedonian leanings, the majority of institutions in Constantinople, may well have relished the opportunity of hosting Miaphysite opponents (as argued vividly by John of Ephesus regarding events under Justinian’s successor, Justin II, to which we will return below), while they may also have happily welcomed or even solicited the stay of ultra-orthodox clerics, such as Victor of Tunnuna, the deacon Pelagius of Rome, and Primasius of Hadrumetum (held at the monastery of the Acoemetae).89 Yet, Justinian’s policies of monastic patronage may have created a landscape fertile for the imposition of his will in any case, even where previous emperors may have faced opposition.90 Peter Hatlie has shown succinctly how over the course of his reign Justinian developed a complex network of imperial patronage for the monasteries of the city that created tight dependencies of many of the city’s institutions on the imperial court. To start with, the emperor was an avid renovator of monasteries. A famous example is that of the female monastery in the southern porticus of the Hagia Sophia, founded by John Chrysostom’s patron Olympias, which Justinian restored after it had burnt down during the Nika revolt of 532. The emperor also encouraged monastic foundations by donating land, such as for the Miaphysite monasteries at Sykai, or by making endowments, such as for the monastery of Chora, founded by one Theodorus, later believed to have been Theodora’s uncle, which soon became one of the most important monastic establishments of 89

90

On motivations of monastic communities to agree on monastic confinement see also Hatlie (2007) 201–202. In Merovingian Gaul, monastic confinement of royal rivals and enemies also became more endemic once monasteries regularly received royal patronage, see De Jong (2001).

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the city. As a consequence of Justinian spreading his patronage equally to Miaphysite and Chalcedonian communities, the intense political activities of Constantinople’s monks that had characterised the aftermath of the Council of Chalcedon right up to the reign of Justinian’s uncle Justin markedly slowed down under this emperor.91 Justinian’s monastic laws, and particularly their strengthening of the office of the prior of the city’s monasteries, a sort of monastic inspector, might also have aided the emperor with gaining a unique opportunity to interfere with monastic affairs (NJust 133.4). While it is unclear how the prior came to be appointed, it is unlikely that this happened without the emperor’s consent.92 Outside Constantinople, Justinian’s ability to enlist monastic obedience is far more doubtful. To be sure, more than bishops, public magistrates imposing monastic confinement had recourse to military help to prevent a penitent from leaving the monastery.93 Yet, also in the provinces monasteries loyal to the emperor of course existed, such as the afore-mentioned monastery of Mandracium, where Victor of Tunnuna had been forced to reside in 544.94 Hosting a deposed bishop was no doubt a favour the emperor, or his provincial delegate, could ask of this community, as an obligation not dissimilar to that imposed on imperial officials hosting defendants under the custodia militaris, or trade corporations enlisting convicts into their workforce. In fact, in a different context, Justinian drew on monasteries to provide a form of preventive custody when he ordered a woman defendant to be held in female monasteries rather than in public prisons, ‘by whom she may be guarded chastely’.95 This last provision shows that, from the imperial perspective, forced residence in a monastery, whether in preventive custody or following a sentence, was not only considered secure, practical or spiritually becoming, but also honourable. However, if we are to believe their hagiographers, some of those who suffered monastic confinement in the context of religious conflict were not only detained by the walls of a monastery itself, 91

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Hatlie (2007) 150–171. On the monastery of Olympias see Janin (1969) 381 and for the monastery of Chora see Janin (1969) 531–539. On the office see Hatlie (2007) 153–154. Under Justinian it was held continuously by the abbot of the monastery of Dalmatos. We do not hear about military guard in the context of monastic confinement imposed by an emperor, but in the case of Sagittarius of Embrum and Salunius of Gap mentioned in the previous chapter Guntram had the monastery watched by soldiers: Gregory of Tours, Histories 5.20 (MGH, SRM 1.1:228). On the monastery and its possible location at the port of Carthage see Leone (2007) 174. CTh 9.3.1.pr. and 1 (320) = CJ 9.4.1.pr. and 1; CTh 9.3.5 (371); CTh 9.3.6 (380) = CJ 9.4.5; CTh 9.3.7 (409); Sirm. 13 (419); CJ 1.4.22 (529); women in the prison: CTh 9.3.3 (340); NJust 134.9 (556).

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but also further incarcerated, and stay in a monastery could be a disastrous experience. John of Ephesus is our most sure-footed guide to living conditions under such circumstances. His most colourful reports concerned the events following Justin II’s so-called second Henotikon of 571, another imperial attempt to conciliate opponents and supporters of the Council of Chalcedon by brushing over the council’s decision, developed in collaboration with the patriarch of Constantinople John Scholastikos. The rejection of this edict by leading Miaphysite clerics marked the end of the relative peace between Miaphysites and Chalcedonians that had prevailed under Justinian and the beginning of a persecution that would last until 577.96 In its course some Miaphysite bishops, and their clerical, lay and monastic supporters in Constantinople, were interned in monasteries loyal to the emperor or the patriarch at a frequency that may have been fuelled by Justinian’s recent legislation on the practice. Himself a victim of this persecution, John of Ephesus’ stories are a firework of abuse and maltreatment. Some clerics were put into cells without any ventilation or made to drink acid wine. They were tortured with lances, spied on constantly and prevented from writing and receiving visitors. The results were disease and malnourishment. Eliseus of Sardis, who fell seriously ill at the monastery of the Abrahamites, was at least allowed to go to the baths, but only under strict guard. Two noble ladies swept up in the persecution were dealt with slightly differently: they were tonsured and dressed in black habits and then put to work in a monastery’s kitchen and latrines (they duly recanted and were restored to their former rank).97 The fate of the latter may be an index to the life of women sent to monasteries to atone for their sexual crimes. Yet, even John had to concede that not everyone was treated badly. The priest Sergius, sent to the monastery of Raboula with its Miaphysite sympathies, was welcomed with kindness and respect. We do not know the reason for this hospitality or whether it was administered in defiance of official orders.98 It seems, then, that the quality of life in monastic confinement, unsurprisingly, often depended on the doctrinal perspectives of the hosting community. John of Ephesus was neither the first nor the only writer to point the finger at the dark side of monastic confinement. According to his 96 97

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On the second Henotikon see Haldon (1997) 298. John of Ephesus, Ecclesiastical History 3.1.8, 3.1.15, 3.1.17, 3.2.2, 3.2.9, 3.2.12, 3.2.14, 3.2.38 (CSCO 105, 106:8, 4; 15, 10; 18–19, 12–13; 55, 39; 70, 50; 74, 53; 76, 55; 103, 75). See also Ecclesiastical History 3.3.20, relating to a later incident under Eutychius (CSCO 105, 106:147, 109). On the monastery of Raboula, founded with the support of emperor Anastasius, of Miaphysite leanings, see Janin (1969) 445.

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biographer, Eutychius of Constantinople, whom Justinian deposed in 565, was led ‘naked’ and stripped of his property to the monastery of Choracudis, where he had to endure further insult by the monks.99 John Rufus, narrating in the early sixth century the fate of Theodosius of Jerusalem after the Council of Chalcedon, explained how the abbot of the monastery of Dios, after having fruitlessly tried all sorts of persuasion, had put the bishop into a narrow cell, which was not only unheated, but also full of quicklime, causing him to develop severe illness, exacerbated by beating and malnourishment. Another commentator of this event, Zacharias Rhetor (later possibly bishop of Mytilene, writing in the sixth century), while also reporting the presence of quicklime in his cell, pointed out, however, that Theodosius had been able to stage doctrinal debates with many people during his time at the monastery.100 The historian pondering the different accounts is left with the conclusion that, while Theodosius may have been held in confinement at the monastery, both writers followed a particular agenda in their representation of this event. Zacharias was keen to stress Theodosius’ continued influence and intellectual superiority, John Rufus his likeness to a persecuted martyr, his rightful status as a Christian bishop and his ascetic rigour. Especially for the latter argument, as we have seen in detail in Chapter 8, drawing a comparison between the hero’s experiences and the customary features of the public prison (hunger, frost, torture, isolation, illness, darkness, foulness of air) was the surest way of making the point. John of Ephesus understood this as well. The protagonists of his stories were endlessly dragged from one form of imprisonment (clearly labelled as such) to another, from the patriarch’s palace, to hospices, to watch-towers, to prisons, to praetoria, to monasteries, to islands and back again, and little distinction was made between these with regard to living conditions, treatment and purpose of confinement.101 For John, monastic confinement, at least in the form demanded by his doctrinal opponents, did not stand out as more charitable than confinement in any of the other places. On the contrary, with reference to the Syrian holy man Sergius, who had been held and allegedly maltreated at a Chalcedonian monastery in Armenia in 518 for stirring up anti-Chalcedonian resistance, John 99 100

101

Life of the Patriarch Eutychius 38, 40 (PG 86:2317–2320, 2321). John Rufus, On the Death of Theodosius, 5 (CSCO 7, Script. Syr. 7:23); Zacharias, Ecclesiastical History, 3.9 (CSCO 83:162–163; 87:111–112). For various consecutive imprisonment see the references in John of Ephesus, Ecclesiastical History as detailed above in n. 97 and 3.1.29, 3.2.2 (CSCO 105, 106:39, 27; 121, 89). For diaconiae as places of imprisonment see above Chapter 9.

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complained bitterly that for ‘a Christian’ (meaning ‘orthodox Christian’) even being in ‘the lowest dungeon in a prison’ would have been far better than in this monastery for anyone who was sent there was thenceforth reduced to utter despair, on account of the boundless severity of sufferings which they used to inflict on the man who was sent to them; since they were very zealous for the tenets of the heresy, and they used to reckon it as an act of justice to torture believers; and accordingly they would stand over them like executioners not just one or two or a hundred, but each of them would pull him from his side and torture him (for they were about three hundred); and accordingly those who used to send to that place were confident that their purpose would be accomplished.102

Nonetheless, Sergius managed to flee from a third-floor window of the monastery, so the extent to which his movements were restricted in the way John described is doubtful. John’s stories hence capitalised on the image of prison that we have traced in the preceding chapters in the same way as earlier exiles in confinement had done. The surroundings and conditions of confinement were different, but, despite its monastic character, the arguments on their unlawfulness remained the same. Crucially, the comparison between monastic confinement and imprisonment was not only made in the context of Christian conflict and religious coercion, but also in circumstances where the official line openly stressed the aims of imperial clemency, Christian charity, penance and salvation. Procopius of Caesarea, to whom we owe the information about Justinian and Theodora’s foundation of a monastery for prostitutes mentioned above, also narrated the same story in his counter-tale of the Justinianic Age, the Secret History, written with the agenda to turn almost everything that could be said in praise of the imperial couple in the historian’s official works on its head: Theodora also devoted considerable attention to the punishment of women caught in carnal sin. She picked up more than five hundred harlots in the Forum, who earned a miserable living by selling themselves there for three obols, and sent them to the opposite mainland, where they were locked up (καθεîρξε) in the monastery called Penance (Μετάνοια) to force them to change their way of life. Some of them, however, threw themselves from the parapets at night and thus freed themselves from an undesired salvation.103

102 103

John of Ephesus, Lives of Simeon and Sergius 2.82 (PO 17:104–105). Procopius, Secret History 17.5.6 (Loeb 198; slightly modified).

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In the Secret History, not only did Theodora get all the credit for the ill-informed enterprise (as usual), but also was the monastery set up for the former prostitutes transformed from a place of salvation and refuge into a prison and its inmates into jailbirds longing for freedom rather than virtue. Procopius was neither interested in turning the prostitutes into martyrs nor in defending their honour. In fact, the imperial couple’