Religion and loyalty, the second part, or, The history of the concurrence of the imperial and ecclesiastical jurisdiction in the government of the church from the beginning of the reign of Jovian to the end of the reign of Justinian / by Samuel Parker ...

§. XIII. But beside these, there were divers others enacted either to abet the Discipline of the Church, by removing Abuses that were crept in upon its anci∣ent Constitutions, or by backing its pre∣sent Decrees with the Imperial Authori∣ty. Or else to set in order such Matters of Religion, that though they related to the Church, were yet without its Juris∣diction, i. e. those Laws that concern Jews. Heathens and Apostates, in all which they followed the example of their Royal Father Theodosius. And first they take care of the due and regular Ordinati∣on of the Clergy. Constantine the Great

had been forced to forbid his Officers both Civil and Military to be admitted into Holy Orders, and the same Decree was frequently renewed by his Succes∣sors, with alterations and limitations as the Prince thought most convenient for the present time, that the State might not be defrauded or indamaged by too much bounty to the Church, and when Men flockt so fast into it, it was but re∣quisite to lock its doors upon such as were already useful to the Common-Wealth. Which Constantine did with a peremptory and universal Law, but Va∣lentinian the first with this limitation, That any Person, who had an Office in the State, might be admitted into the Church, so that he provided an able Per∣son to supply his former Office. But be∣fore this time the Priviledg of Clergy had taken place, and the Bishop was impowr'd to redeem any Criminal from Justice, or Debtor from Goal, if he judg∣ed him qualified for doing Service in the Church, that was grown into such an abuse, that the Monks took them away by force and tumult, to the hindrance of Publick Justice, and the subversion of private Mens rights. For when they were once enter'd into a Monastery or into Orders, their Crimes were cancel'd and their Debts paid, to redress which a∣buse

Arcadius enacts a severe Law in the year 398, as his Father Theodosius had done before him, against these vio∣lent interpositions of the Monks, and threatens the Bishops that if any such Riots were made by the Monks under their Jurisdictions, and not punisht by them, the fault should lye at their Doors, and commands them for the time to come, that whenever they wanted Clerks, they should take them from the Colledges of Monks, if they found them clear of all Debts both Publick and Pri∣vate, otherwise as they ought not to have been admitted into the Monaste∣ries, so he now commands that they shall not be adm••tted into Orders. And this Law was but agreeable to the Constitu∣tion of things in those Times, when the Monasteries, as now our Universities, were the proper Seminaries of the Church. These Laws, viz l. 16 de paenis, and l. 32. de Episcopis, were at first but one, however they came afterward to be di∣stracted, and placed under such distant Titles, and therefore the first breaks off with an &c. where the second begins, thus. Ex quor••m [Monachorum] numero rectius, si quos sortè sibi deesse arbitran∣tur, Clericos ordinabunt, &c. With which Words the second Law begins, and then adds, non obnoxios publicis privatisque

rationibus cum invidiâ teneant, sed habe∣ant jam probatos. Now both Laws be∣ing join'd together, their history and their use are very apparent, but when separated, it is difficult to find out their meaning, especially of the latter, that was only made in pursuance of the former. To both which ought to be added the third Law in the Title de his qui ad Ec∣clesias confugiunt, by which the Privi∣ledg of Protection by the right of Eccle∣siastical Immunity is utterly stopt up to all Persons ingaged in publick or private Debts, which I think was as necessary a piece of Reformation, as the former part of the Law against the Tumults of the Monks. For what can be a greater dis∣honor to the Church, than to be turn'd into a Sanctuary against Common Ju∣stice? Though most Men are very much offended at the unkindness of the Law, and the Historians remark an unlucky Judgment upon the Author of it, Eutro∣pius, at that time in high favor with the Emperor, but soon after falling into dis∣grace, he was the first Man upon whom it was executed, flying for Sanctuary to the Church of Constantinople, and hi∣ding himself under the Communion Table, in which posture he was in an elegant, but I doubt, a very unseasonable Oration,

rated and upbraided by St. Chrysostom for his rudeness to the Church, and so is dragg'd out by the heels, and immedi∣ately hal'd to Execution, and as Sozomen adds, his Law was immediately abroga∣ted and erased out of the Publick Register. But that is one of his many dreams, when we find it carefully recorded and con∣firm'd for ever by the Emperor's Son in the Theodosian Code. And a Law not unlike this we find in the same Title made the year before against the Eccle∣siastical protection of Jews from their Creditors, upon their pretence of con∣version to the Christian Faith: which it seems was a common cheat at that time, for which reason there are divers Impe∣rial Laws to prevent it, and command the Clergy to receive no Converts, till they have clear'd themselves of all Crimes and Debts: a very good Rule, and an Example worthy the imitation of our Church. The next Rescript is of a pe∣culiar strein, and too strict out of his o∣ver-great care to prevent Confusion, viz. that wherever there are Churches in Vil∣lages, the Clerks that serve them, shall not be ordein'd from other Villages, but out of that Village where the Church is, in which they Officiate, lest thereby they rob their Neighbors. What parti∣cular

Reason he had to enact this Law at that time I know not, but it looks very odd and severe, that every Village must be supplied with a Pastor out of it self; and not very wise, when our Savi∣or's observation is so very true, That a Prophet has least honor in his own Coun∣try, and it is evident that every Preacher has least Authority in his native Place, where the Vices and the Follies of his youth are remembred. And therefore I cannot but think it would have been somewhat a wiser Law rather to have restrain'd all Men from accepting a Be∣nefice in the Place of their Nativi∣ty.

His next Rescripts are made in the particular case of St. Chrysostom, who being deposed from his Bishoprick of Constantinople by the Council sub quercu, and that as I have elsewhere proved, too justly for so good a Man; the sentence was ratified by the Emperor, and be∣cause the People raised Tumults upon it, he is banisht, and the very same day hap∣pens a great fire at Constantinople, that burnt down both the Cathedral and the Senate-house. This is laid to the Jo∣hannites, as they nick-named the follow∣ers of St. Chrysostom; and upon it many of the Clergy are imprison'd for suspici∣on

of the Fact, but no proof being found against them by the Prefect Studius, the Emperor directs a Rescript to him to set them at liberty, to give over all farther Inquisition after the fire, to prevent all Meetings and Conventicles of Chrysostom's Faction, and to banish all out lying or rather trespassing Bishops and Clerks from the City, who had in great num∣bers resorted thither from all Parts to join in with the Factions, and by that means the Tumults were raised to that height, that the Emperor was forced to command their expulsion for the preser∣vation of the Publick Peace. But though this seasonable Banishment of the forrein Clergy slaked, yet it broke not up the fury of the Tumults, that were partly kept up by the Inhabitants of the City, and partly by the expulsed Mutineers in other Parts of the Empire, and therefore it is followed with other Laws to sup∣press both. And first all Sword-men are forbidden to frequent the Conventicles of the Johannites under pain of cashier∣ing and Proscription of Goods, that sort of Men being most likely to ingage into Quarrels upon occasion of such Meetings. In the next place all Servants are re∣strain'd with a pecuniary Mulct upon their Masters, and the Bankers, and all

Members of the City-Companies, with a round Fine upon the Company that suf∣ferd such Members. And because the Cler∣gy that were banisht Constantinople, set up their Conventicles, especially in Thrace, Egypt, and the East (properly so called) a third Rescript is issued out, That all Persons should be expell'd all Churches, who refused to communicate with Arsa∣cius, Theophilus and Porphyrius, the three sovereign Bishops of those Diocesses, Ar∣sacius of Constantinople for Thrace, Theo∣philus of Alexandria for Egypt, and Por∣phyrius of Antioch for the East. Under the Title of Apostates we have but one Law in this Reign, and that was enact∣ed by Arcadius upon the punishment of Intestability, as was done by Theodosius the Great; but this Law of Arcadius was made with so many favourable concessi∣ons, that it seems to have been contri∣ved for no other end, than to take away the severity of the fo••mer Theodosian Law. For whereas that takes away all disposal of their Estates, this allows the settlement, if made upon Father or Mo∣ther, Son or Daughter, Brother or Si∣ster, Neece or Nephew, but no farther, and that was far enough, for Men were seldom without some of these Relations, and when they had them, they as seldom

cared to settle their Fortunes upon any o∣ther Persons.

But he was much more kind to the Jews, taking upon himself the Patronage of their old Priviledges and granting new ones. His first Law gives Authori∣ty to their Governors to set Market-pri∣zes upon their Goods, because the Chri∣stian Officers out of hatred to the Jews set their Prizes so low, that they took a∣way their lawful Gains. His next for∣bids all contumelious language in pub∣lick against their Patriarchs. His third commands all his Governors of Provin∣ces to protect them and their Synagogues from all violence of the People. His fourth restores and confirms to the Pa∣triarchs and Clergy, the Priviledg of Ex∣emption à Muneribus curialibus from Publick Offices, that had been granted by former Emperors, Constantine, Con∣stantius, Valentinian and Valens, but had been since taken away by Gratian and Valentinian the younger. In his fifth Law he renews the same, together with an addition of all those Priviledges that had been granted by his Royal Father. To which may be added his Grant to them impowring them to determine all their Law-suits by the arbitration of their Patriarchs, if both Parties consented to it,

enacted the same year, in which he gran∣ted the same Power to Christian Bi∣shops.

But as indulgent as Arcadius was to them in the East, they were at first treat∣ed ruggedly enough by Honorius in the West, who first of all forbid the payment of the Crown-gold to the Patriarch of the Jews and his Apostles, i. e. his Assessors, where he resided, and the Collectors of it in the several Provinces. This Tri∣bute had been ever paid from the destru∣ction of Jerusalem, though it is now in∣tercepted by Honorius with expressions of high displeasure: He calls it a cheat, and the Patriarch a Thief, and orders his A∣postles to be punisht by his Judges as Pick-pockets. But all this was done more out of spite to his Brother Arcadi∣us than to the Jews; for the two Bro∣thers had first by the instigation of Rufi∣nus, and afterward of Eutropius Consul this year, conceived a mortal hatred a∣gainst each other, and therefore because the Patriarch of the Jews resided in the Eastern Empire under the Government of Arcadius, Honorius thought it unworthy his Majesty (as he declares in his Re∣script) to suffer one of his Brothers Sub∣jects to exercise so high a Power over his Subjects as to impose Taxes and Tri∣butes

upon them. And for the same rea∣son when Arcadius granted the Jewish Clergy exemption from all Offices in the year 398, Honorius forbids the execution of that Law within his Dominions as preju∣dicial to his Government, and commands them, and all Men of whatsoever condi∣tion, to undergo their share of the pub∣lick Burthens. And therefore five years after, viz. in the year 404, when the Brothers were reconciled, Honorius in token of his Reconciliation cancels this Rescript, and restores them to this and all the other Priviledges, that had been granted them by any of his Predeces∣sors, and from this time forward he was the most indulgent of all the Emperors to the Jews. But his next Law is of a peculiar Nature, against a certain new Sect of Jews, that he calls Caelicolae in the year 409, commanding them, be∣cause they pretended to be Christians, to join Communion with the Catholick Church within a years time, otherwise to be obnoxious to all the Laws against Hereticks, and forbids them making any Converts for the time to come, as they would not incur the guilt of High-Trea∣son. Now what these Caelicolae were, or why so named, 'tis difficult to find, because we no where meet with any

mention of them but in this Emperor's time, nor any description of them, but in this Rescript, unless once in St. Au∣stin, as Gothofred observes, and though it is found in Justinian in the Law of Constantius against the Jews, yet as he observes, it must have been foisted in af∣terward from this Law, because we hear of no such Sect any where else till this time, and Honorius never mentions them but with the Title of a new up-start Sect. And as for the other two Laws in which they occurr, viz. 43d and 44th de Hae∣reticis, he only names them in the rout of other Hereticks, and therefore all that can be guessed at them, is from this Law, where they are described to be pretenders to Christianity, but Jews in reality. So that they seem'd to have been a sort of Mongrel Christians, such as the Nazarites were of old, confound∣ing both Religions together, and obser∣ving the Sacraments of both, i. e. they were both circumcised as Jews, and bap∣tised as Christians, being such another hotch-potch out of both Religions, as was afterward made by Mahumetanism. But how the name of Caelicolae came to be appropriated to them, I cannot find the least foot-step for a probable conjecture. How the Name came to be in former

Times given to the Jewish Nation in ge∣neral, I am pretty well satisfied, viz. not allowing any Images and Represen∣tations of the Deity, they were Sarcasti∣cally represented by the heathen Poets, as if they had address't all their Devotions to the Clouds and Sky. But how it came to be appropriated to this particular Sect as distinct from the other Jews, I be∣lieve is scarce capable of a guess, there being no other Record of them, than what I have mention'd, in which we on∣ly find the Name, but no reason of it, and as the Sect began, so it ended under this Reign; for we hear no more of it, whether it sunk by its own absurdity, or the severity of the Law against it.

His next Rescript to the Jews in the year 412 is a confirmation of all their an∣cient Priviledges, in the free use of their Sabboths, their Synagogues, their Festi∣vals, and all the other Rites of their Re∣ligion. Of the same nature and to the same purpose, is his third Law under the Title de feriis, and the eighth under the Title de Executoribus, and were no doubt but one and the same Law at first, as divers others were, though afterwards torn into several Parcels, to reduce them to their proper heads, by the Colle∣ctors of the Code. There remains but

one Law more of this Emperor under this Title enacted in the year 416, and that is to redress that common abuse of counterfeit Converts to Christianity from among the Jews, only to avoid their Crimes and their Debts, command∣ing all his Governors to seek out all such Impostors in all Places, and for the ho∣nor of Christianity, to turn them out of the Church, and return them back to their own Religion. And this was done at the request of the Jewish Governors, to whom the Rescript is directed, there∣by to give them Authority to demand the execution of it of his Officers in his name. Which was a much higher fa∣vor than if he had sent his Rescript im∣mediately to the Officers themselves, be∣cause by this means the execution of this Law was put into the Jews own hands. To all which Laws we may add one more under the next Title ne Christia∣num Mancipium Judaeus habeat, that is very singular, and shews this Emperor's great kindness to the Jews, and that is to give them the liberty of keeping Christi∣an Slaves and Servants, which was for∣bidden by all the Emperors both before and after him, and for that reason it is I suppose that Trebonian has wholly left it out of the Justinian Collection.

Under the Title de Paganis there are

three Laws of Arcadius, viz. 13, 14, 16, and five of Honorius, 15, 17, 18, 19, 20. The first Law of Arcadius was enacted at his first coming to the Empire in the year 395, and was only a Ratification of all his Royal Father's Laws both a∣gainst Pagans and Hereticks with very severe comminations upon his Officers, that neglected their speedy and vigorous Execution, no less than death it self, in supercapitali supplicio judicamus Officia [i. e. Officiales] coercenda quae statuta neg∣lexerint. By a second Rescript in the year following all Priviledges whatsoever heretofore granted to the Heathen Priests, are utterly abolisht. And by a Re∣script in the year 399 all their Temples still remaining in Villages in the Province of Syria Phaenice, are commanded to be pull'd down, but not without Tumult, many of the Monks, who were usually most busie at that Work, being wound∣ed and slain by the Country People. In the same year Honorius takes away their Sacrifices and Temples in France and Spain, but so as to preserve their pub∣lick Ornaments, after the example of his Father Theodosius in the eighth Law of this Title. And in the same year also he being petition'd by the African Fa∣thers in their fifth Council to remove all the Relicks of Idolatry, that as he had

already taken away their Sacrifices, so he would be pleased to abolish their pub∣lick Festivals, quae ab errore Gentili at∣tracta sunt, i. e. that were Customs at first derived from the old Heathenism, to this he returns a peremptory denyal, That though it was his Royal Pleasure that the prophane Rites should be taken away, yet he would not have the People depri∣ved of their Solemnities of mirth accord∣ing to ancient and immemorial Custom. And whereas the same Fathers moved, that the Heathen Temples still remain∣ing in Villages and more remote Parts of the Country might be destroyed, the Emperor denies that too, the Idols he will have removed, but not the Buildings themselves demolisht. But in the year 408 the Emperor is of another mind, be∣ing inflamed to it, by a particular Provo∣cation. For Stilic••o being slain that year, both the Heathens and the Donatists (as we have seen in their History) grow in∣solent, and give out that all the Laws that had been enacted against them were on∣ly Stilico's without the Emperor's Con∣sent, which being signifi••d to the Empe∣ror by the African Fathers with a repe∣tition of their former Requests, he upon it, grants all that they ask and more, and nothing less will serve his turn than the

utter extirpation of Paganism. Upon it he takes away all their Revenues, and settles them upon his Army, destroys their Images and their Altars, turns their publick Temples to other publick Uses, commands the private Chappels to be demolisht by the Owners, takes away the solemn Festivals, and imposes the execu∣tion of this Law upon his Officers under the Penalty of a very severe Fine. His last Rescript was enacted in the year 415, in which he permits the Heathen Games yearly exhibited by the Priests in their Metropoles or great Cities, upon conditi∣on that the Priests return home to their own Habitations as soon as the Solemni∣ty is ended. Secondly he sequesters all Revenues belonging to the Temples, to his own and to the Churches use. Third∣ly he removes all their Heathen Images from the Baths, and all other publick Places. And lastly he inflicts Capital Punishments upon the Ring-leaders in their Sacrifices and superstitious Processi∣ons. And thus by these several Penal Laws under these several Titles, and a∣gainst these several Factions, he so set∣tled the Peace of the Church and Em∣pire, that though he lived ten years af∣ter, for he died not till the year 425, he had no necessity of making any more

news Laws about these old Matters, for when things are once settled in their right Method, the World jogs on in good or∣der of its own accord. So that it was really this reign, that vanquisht all the inveterate disorders of the Church, that utterly rooted out the Schism of the Donatists, and broke the heart of the Heresie of the Arians, for it was at this time that it received its fatal blow, though afterward it made some weak Essays and fainting gaspings to recover life. Neither do I remember that after this time he had occasion of making a∣ny other Laws about Ecclesiastical Mat∣ters, but one Law of Discipline in the year 420, to recover the obsolete force of an Ecclesiastical Canon, strictly for∣bidding all Clergy-men to cohabit with any Women, unless their own Mothers, Sisters or Daughters, and commanding all that had been married before they entred into Orders, to retain their Wives after it. The first part of which Law was made in pursuance of the Nicene Canon, that had been frequently renew∣ed both by the Ecclesiastical and Civil Law, by reason of a common Abuse, that was crept into the Church, that Men professing Caelibacy took Women in∣to their Houses commonly call'd 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉

beloved Sisters to minister to their neces∣sities, and join with them in their Devo∣tions, by which odd kind of liberty they brought great and just Scandal upon the Church, and for that reason we meet with continual Complaints in all the An∣cients against them. The other part of the Law against the Clergies divorce up∣on pretence of stricter Sanctity, is ta∣ken from the sixth Apostolical Canon, so that it is evident from this Law that the Caelibacy of the Clergy was not at this time injoin'd, though afterward it crept into the Church by insensible de∣grees, till it was at length imposed ra∣ther by the Authority of Custom than Law.

Notes

• Lib. 9. Tit. 40. de pae∣••is. l. 16.
• Ibid l. 15.
• De Episco∣pis l. 32.
• Ibid. l. 2.
• De Episco∣pis l. 33.
• De Episco∣pis l. 37.
• De his qui ••uper religi∣one conten∣dunt l. 4.
• Ibid l. 5.
• De Aposta∣tis l. 7.
• De Judaeis l. 10.
• Ibid l. ••1.
• L. 12.
• L. 13.
• L. 15.
• Cod. 2. Tit. 1. de Ju∣••isdictione l. 10.
• De Judaeis l. 14.
• De Decuri∣onibus l. 158.
• De Judaeis l. 17.
• De Judaeis l. 19.
• De Judaeis l. 20.
• De Judaeis l. 23▪
• L. 3.
• L. 13.
• L. 14.
• L. 16.
• L. 15.
• L. 17,
• L. 18.
• L. 19.
• L. 20.
• De Epis∣copis l. 44.