Christians may not be slaves to Jews
For an introduction to the Life of Constantine, see the commentary on I.8.
This extract pertains to the issue of conversion of Christians to Judaism, by attempting to prevent Christians from being enslaved in a Jewish household where they might be pressured, or in theory, might choose to adopt the Jewish faith. While Constantine’s legislation against the Jews is presented to us here in Eusebius’s words, whose information we must always be mindful of course not to take completely at face value, the attitude he describes is reflected elsewhere. Guy Stroumsa has argued that Constantine’s attitude towards the Jews paved the way for harsher treatment of them by future emperors, where their rights would be further infringed and they would be tolerated only because of their relationship with the Old Testament (“Dynamics,” p. 151). Indeed, Constantine can be understood to be somewhat vitriolic in his descriptions of the Jewish people, referring to them in a letter to the churches following the Council of Nicaea (325 CE) as impious and detestable, whose guilt in the killing of Christ marks them out as a base people (Life of Constantine III.18-19).
Interesting in comparison with the present extract from Eusebius is the similar information recorded in the fifth century Theodosian Code and the Sirmondian Constitutions, the latter of which are a collection of imperial constitutions compiled during the fifth century, and expanded upon through the sixth century. It is possible that this collection, which also concerns itself with issues relating to religion, may have been produced in Gaul around the same time as the Theodosian Code was compiled, and some constitutions indeed appear in the latter in an abbreviated form. The Theodosian Code compiles Roman laws dating back to 312 CE, when Constantine converted to Christianity, and was commissioned by Theodosius II and his co-emperor Valentinian III in 429 CE. A decade later, the Code was operating in the eastern and western parts of the empire. Of the initial 3, 500 texts from the Code, 2,700 still survive today. One of the aims of compiling this collection of laws was to more firmly establish Christianity as the empire’s official religion (on the Theodosian Code, see John Matthews, Laying Down the Law, and for the authoritative translation, Clyde Pharr, Theodosian Code). Timothy Barnes notes the harsh attitude that Constantine took towards the Jews (Constantine and Eusebius, p. 252, 270; on the dates of the legislations, p. 392 n. 74), and this is reflected in chapter 16 of the Theodosian Code, which contains various legislations relating to Jews from Constantine’s day. Within Constantine’s laws gathered within this collection, the concern over conversion to Judaism is clearly important.
However, there is a significant difficulty for interpreting the evolution of this Constantinian legislation in that the dating of the constitutions themselves are sometimes corrupted. This has been particularly debated in relation to three constitutions which were all sent to the praetorian prefect Evagrius. Among these three constitutions, two of them, Theodosian Code XVI.8.6 and Theodosian Code XVI.9.2, must have initially been part of the same constitution. Some manuscripts date these two constitutions to 339 CE, but the dating has been corrected by some scholars who believe that they were initially part of a unique constitution promulgated on the 13th of August 329 CE (Porena, Le origini, p. 419-420, 582). In Theodosian Code XVI.8.6 the emperor recalls that Jews were not allowed to kidnap women who worked in the imperial weaving establishments or to have sexual intercourse with Christian slave women (see the discussion by Capucine Nemo-Pekelman). Most interestingly for our purposes, Theodosian Code XVI.9.2, also addressed to Evagrius, states that any Jew who buys a Christian slave or a slave of any other sect or nation will immediately have them removed from their custody and handed over to the fisc. It is also stated that if any Jewish master circumcises his purchased slave, he will be condemned to death. Finally, if the Jewish master is convicted of having circumcised a Christian slave, the sanction will be retroactive, and all the Christian slaves that he already owns will also be taken away (see the discussion by Capucine Nemo-Pekelman). If this law was indeed promulgated by Constantine, which is not at all certain, it would clearly echo Eusebius’s testimony here. In fact, Eusebius not only writes that Constantine prohibited circumcision of Christian slaves by Jews, but also prohibits Christian slaves from remaining in the custody of Jewish masters (the correspondence between the two texts is highlighted in Barnes, Constantine and Eusebius, p. 392 n. 74). There is, however, a discrepancy in that Eusebius states that the guilty Jewish master is punished by a fine, not by death, and the circumcised slave is set free. This seems to correspond to conditions appearing in a further later law from the end of Constantine’s reign, which we will discuss below.
Some scholars propose adding to these two constitutions Theodosian Code XVI.8.1, also addressed to Evagrius, and also with corrupt dating (see Barnes, Constantine and Eusebius, p. 392 n. 74; Delmaire and Rougé, Les lois religieuses, vol. I, p. 486-488; Porena, logically suggests however, that this constitution was a separate one promulgated in the same period. He suggests dating it to the 18th of October 329 CE, see Porena, Le origini, p. 419-420, 582). This constitution punishes with death by burning any Jews who kill – in this case by stoning – Jewish converts to Christianity. If we ignore whether this precise case of execution by stoning had been ordered by a Jewish tribunal or not, it is observable that the Roman legislator reacted severely, condemning the culprits to a harsh sentence. One aim of this constitution could have been to recall that no peregrine court could order the death penalty. It is interesting to note that a few years later – if we accept the correction of the dating of Theodosian Code XVI.8.1 in 329 CE –, Constantine promulgated another law restating the same prohibition, namely that Jews attempting to harass those who had converted from Judaism to Christianity had to be executed (Theodosian Code XVI.8.5, promulgated on the 21st of October 335; on this law see the discussion of Capucine Nemo-Pekelman; this constitution comes from Sirmondian Constitutions 4). In the second part of Theodosian Code XVI.8.1, the tone of the attack against Jews become more virulent, as it is stated that if anybody joins this “nefarious sect” or takes part in its assemblies, he will be condemned. The second part of the constitution is thus a clear condemnation of Jewish proselytism, which would be the first one promulgated by Roman power in such an explicit and general way. Actually, some scholars have stressed the fact that the virulence of the second part of this constitution is not consistent with the legislation related to Jews under Constantine. Thus, for these interpreters, this second part of the constitution may have been added at the time of the compilation of the Theodosian Code (see the comments of Capucine Nemo-Pekelman).
The final Constantinian constitution enacted in order to control Jewish religious practice that we know of is particularly interesting, as it deals with circumcision. This constitution had been addressed by Constantine to the praetorian prefect of Africa, Felix, and had been promulgated on the 21st of October 335 CE. We know this law in two versions, one from the Theodosian Code, preserved at XVI.9.1 (see the comments of Capucine Nemo-Pekelman), and the other preserved in the fourth Sirmondian Constitution. In this letter, the question of the forced circumcision of purchased slaves is mentioned first, followed by the question of the sanctions against Jews who attacked other Jews who converted to Christianity. The content of the two versions of this law promulgated on the 21st of October 335 CE is largely the same: it prohibited Jews from circumcising a purchased slave, be he Christian or from any other “sect.” If a Jewish master does so, it is ordered that the circumcised slave shall “obtain the privilege of freedom.” This law raises many questions when we try to connect it with Theodosian Code XVI.9.2 (according to the dating that one attributes to this law) and the present passage from the Life of Constantine presented here.
If we accept the hypothesis that Theodosian Code XVI.9.2 could have been promulgated in 329 CE, it would prove that Constantine previously enacted a law stating that Jewish masters were not only forbidden to circumcise a Christian slave or a slave of any other sect or nation, but also to own them. This point is confirmed by Eusebius’s text. So, the nature of the measure taken in Theodosian Code XVI.9.1 is clearly more lenient for convicted Jewish masters, as it is just circumcision which is condemned. Another major difference between the two texts is related to the treatment of the slaves who endured forced circumcision. In Theodosian Code XVI.9.2 they are vindicated to the fisc, whereas in Theodosian Code XVI.9.1 they are set free. This last option is retained by Eusebius, whereas the fact that the Jewish masters convicted of illegally circumcising on his slaves could only be punished by a fine – as stated by Eusebius – seems much more lenient than the usual penalties established since the second century CE for this kind of crime.
Constantine’s legislation on circumcision fits in with the legal framework already established during the preceding centuries to control the practice of circumcision. From the second century CE onwards, the practice of circumcising non-Jewish slaves was illegal. A rescript of Antoninus Pius states that Jews were only allowed to circumcise their own sons (see Digest XLVIII.8.11 (quotation of Modestinus, Legal Rules VI)). Moreover, the late-third century or early-fourth century legal sentence preserved in the Sentences of Pseudo-Paul, prescribes capital punishment for Jewish slave masters who circumcised their slaves, and punished with permanent exile Roman citizens who circumcised themselves or their slaves (Sentences V.22.3-4). This particular section of the Sentences takes a harder line than the earlier rescript of Antonius Pius on the issue of circumcision, by attempting to inhibit conversion to Judaism through prevention of circumcision. Catherine Hezser thus argues that it is possible that Constantine’s restating of this law in the fourth century was only necessary because it was not being observed already, and Jews were continuing to buy and circumcise non-Jewish slaves (Jewish Slavery, p. 41-42). We might also suggest that Constantine found it necessary to complement this legislation in order to highlight the cases of Christian slaves, but also to clarify what became of these slaves forced to be circumcised after the condemnation of their masters. To conclude, if we consider that Theodosian Code XVI.9.2 had been enacted before XVI.9.1, it would show that in 335 CE Constantine dealt with the issue of circumcision performed on non-Jews in a way which was slightly more lenient than the way he dealt with it in 329 CE. He did not attempt to forbid the buying and circumcising of non-Jewish slaves by Jewish masters, but simply the circumcision itself. The fact that Sirmondian Constitution 4 opens with “a long time ago was published the most salutary sanction of our law, which we renew...” has been interpreted by some scholars to mean that it is actually Theodosian Code XVI.9.2 (see Delmaire and Rougé, Les lois religieuses, vol. II, p. 484, n. 1).
If, on the contrary, we consider that Theodosian Code XVI.9.2 was enacted in 339 CE by Constantine II (as the other constitutions addressed to Evagrius, namely XVI.8.1 and 6), we could deduce that the legislation of his father on circumcision was more lenient. Moreover, by legislating that slaves who endured circumcision against their will are to be freed without a classic manumissio, Constantine created a contradiction with a fundamental principle of Roman law (the absence of manumissio led to the fact that the servus sine domino remained a slave; see the comments of Capucine Nemo-Pekelman). Thus, Constantine II may have wanted to put an end to this contradiction by stating that the non-Jewish slaves who had been taken away from their former Jewish masters had to be vindicated to the fisc. Thus, Eusebius’s allusion to the fact that Constantine ruled that the non-Jewish slaves be freed would echo the content of Theodosian Code XVI.9.1. Moreover, we could suggest that Eusebius’s mention of the fact that Jewish masters were not even allowed to own Christian slaves may be the result of the fact that Eusebius attributed to Constantine evolutions that were in the air after his death in 337 CE, during the time Eusebius composed the Life of Constantine (note that Eusebius’s death occurred between the second half of 339 CE or the beginning of 340 CE; in the Syrian martyrology his death occurred on the 30th of May, this leads Barnes to suggest that his death occurred on the 30th May 339 CE, see Barnes, Constantine and Eusebius, p. 263).
By Constantine’s time, Jews were not only prevented from circumcising their slaves, but could be executed for mistreating or attempting to win back those who had converted to Christianity from Judaism. The legislation in relation to conversion, then, becomes more specific, by not only trying to prevent conversion by prohibiting circumcision, but by attempting to protect those understood to be ‘liberated’ from Judaism from being reabsorbed into it. Moreover, as we have attempted to demonstrate by comparing this passage from the Life of Constantine and our knowledge of the legislation regulating circumcision in the first decades of the fourth century, Eusebius’s depiction of the conditions and sanctions fixed by Constantine in order to limit the practice of circumcision may be interpreted as an imprecise mix of various laws enacted during Constantine’s reign, and maybe slightly after his death. Eusebius wanted first and foremost to present Constantine as the emperor who intensively fought against conversions to Judaism by forbidding Jews to have Christian slaves at all. The final point to emphasise is that the issue of conversion to Judaism through slavery is also discussed by the rabbis in various contexts. For them, it raised the discussion of status within the Jewish community, which was relevant for issues such as marriage, inheritance, and the performance of certain rites (see, for instance, Jerusalem Talmud Yevamot 8:1, 8d (part 1) and Jerusalem Talmud Yevamot 8:1, 8d (part 2): there are further connections with other rabbinic sources which can be viewed within the commentaries on these texts).
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