Dedicated Widows in Codex Theodosianus 9.25?

Kevin W. Wilkinson

Journal of Early Christian Studies, Volume 20, Number 1, Spring 2012, pp. 141-166 (Article) Published by The Johns Hopkins University Press DOI: 10.1353/earl.2012.0008

For additional information about this article

http://muse.jhu.edu/journals/earl/summary/v020/20.1.wilkinson.html

Access provided by username 'treederwright' (2 Nov 2013 01:55 GMT)

Dedicated Widows in Codex Theodosianus 9.25?

KEVIN W. WILKINSON
Two fourth-century laws dealing with raptus, abduction, preserved in title 9.25 of the Codex Theodosianus, have traditionally been read as protections for Christian virgins and widows who had taken vows of continence. A careful examination of these laws suggests something quite different. C. Th. 9.25.1 appears merely to extend existing penalties for the abduction of unwed girls to cover the abduction of widows of any sort. C. Th. 9.25.2 is corrupt in our manuscripts. The version printed in the standard critical edition, which includes mention of dedicated widows, is poorly attested and almost certainly incorrect. In its original form, this law censured only the abduction or seduction of dedicated virgins. There is therefore no legislation in the Code that refers to a class of widow who was vowed to God. This is as expected, for canonical and legal recognition of the widows vow (as a binding oath that conferred a new status) only begins to emerge in the fth century, at a point roughly contemporary with the compilation of the Code.

I am grateful to John Matthews, Tim Barnes, and the anonymous referees for helpful comments on earlier incarnations of this paper; I alone am responsible for any remaining deciencies. Translations are mine unless otherwise noted. In addition to standard abbreviations, I have also employed the following: CCH = La coleccin cannica hispana, vols. 4 and 5, ed. G. Martnez Dez and F.Rodrguez, Monumenta Hispaniae Sacra, Serie cannica (Madrid: Consejo Superior de Investigaciones Cientcas, Instituto Enrique Flrez, 1984 and 1992). Jaff, Regesta2 = P. Jaff, Regesta ponticum romanorum, 2nd ed., vol. 1, ed. S.Lwenfeld, F. Kaltenbrunner, and P. Ewald (Leipzig: Veit, 1885; repr. Graz: Akademischen Druck- und Verlagsanstalt, 1956). Thiel = Epistolae romanorum ponticum genuinae et quae ad eos scriptae sunt a S. Hilaro usque ad Pelagium II, vol. 1, ed. A. Thiel (Braunsberg: E. Peter, 1867; repr. Hildesheim: G. Olms, 2004).
Journal of Early Christian Studies 20:1, 141166 2012 The Johns Hopkins University Press

142 JOURNAL OF EARLY CHRISTIAN STUDIES

On April 1, 326, Constantine issued a law dealing with the crime of raptus that has attracted a considerable amount of scholarly attention.1 Raptus does not correspond exactly to the modern notion of rape. Though the word could designate forcible sex with a person other than ones spouse or slave, a crime known more precisely in Roman law as stuprum per vim, the root concept was rather abduction.2 In fact, in the raptus legislation of the fourth century and beyond, the primary concern was not an isolated act of sexual violence, but rather abduction as a means of securing a marriage without formal betrothal.3 After abducting a woman, the perpetrator would attempt to gain the consent of his victim and her family, who might consider marriage the least shameful option under these circumstances. The crime even covered cases in which there was prior collusion between the two partieswhat we might call elopement.4 Constantine censured all such acts in the strongest terms: both raptor and rapta, if she was thought to be a willing participant, were threatened with a savage manner of death that is no longer specied in the constitution as it has come down to us; parents of the victim, if they were involved, faced the possibility of exile; complicit nurses were to have molten lead poured down their throats; co-operating slaves were to be burned alive. This piece of legislation was
1. C. Th. 9.24.1. On the date, which is problematic, see O. Seeck, Regesten der Kaiser und Ppste fr die Jhre 311 bis 476 n.Chr. (Stuttgart: J. B. Metzler, 1919; repr. Frankfurt am Main: Minerva Verlag, 1984), 61. On the content of the law, see especially D. Grodzynski, Ravies et coupables: Un essai dinterpretation de la loi IX.24.1 du Code Thodosien, Mlanges de lcole franaise de Rome: Antiquit 96 (1984): 697726; L. Desanti, Costantino, il ratto e il matrimonio riparatore, Studia et documenta historiae et iuris 52 (1986): 195217; J. Evans Grubbs, Abduction Marriage in Antiquity: A Law of Constantine (C. Th. IX.24.1) and Its Social Context, JRS 79 (1989): 5983; Evans Grubbs, Law and Family in Late Antiquity: The Emperor Constantines Marriage Legislation (Oxford: Oxford University Press, 1995), 18393; S. Puliatti, La dicotomia vir-mulier e la disciplina del ratto nelle fonti legislative tardo-imperiali, Studia et documenta historiae et iuris 61 (1995): 471529. 2. On raptus in Roman legal thought of the classical period, including the occasional use of this word as an equivalent for stuprum per vim, see D. C. Moses, Livys Lucretia and the Validity of Coerced Consent in Roman Law, in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, ed. A. E. Laiou (Washington, DC: Dumbarton Oaks Research Library and Collection, 1993), 3981, at 4954. On pre-fourth-century legislation relevant to raptus, see also Grodzynski, Ravies et coupables, 71923; Puliatti, La dicotomia vir-mulier, 47481. 3. See Evans Grubbs, Abduction Marriage; A. Arjava, Women and Law in Late Antiquity (Oxford: Oxford University Press, 1996), 3738. 4. For discussion of a fth-century case of this sort, see A. Koptev, The Raptor and the Disgraced Girl in Sidonius Apollinaris Epistula V 19, Ancient Society 34 (2004): 275304; C. Grey, Two Young Lovers: An Abduction Marriage and Its Consequences in Fifth-Century Gaul, CQ 58 (2008): 286302.

WILKINSON / DEDICATED WIDOWS143

so extreme that judges were reluctant to convict anyone of the crime. Or this, at least, was the justication offered two decades later when Constantius II reduced the penalty for raptus to mere (!) capital punishment.5 The next two laws (chronologically) to treat this subject are in fact contained in the subsequent title of the Code (9.25.12), which purportedly collects legislation dealing with offenses against a special class of victim: Christian virgins and widows who had taken vows of permanent celibacy. The rubric of this title is given in our manuscripts as de raptu vel matrimonio sanctimonialium virginum vel viduarum (on the abduction and/ or marriage of dedicated virgins and/or widows).6 This description of the contents is frequently, and not unreasonably, taken at face value in modern scholarship,7 but the appositeness of the rubrics should not be too readily accepted. They are the invention of those who undertook the task

5. C. Th. 9.24.2, dated November 12, 349 (ed. T. Mommsen and P. Meyer, Theodosiani libri XVI cum Constitutionibus Sirmondianis [Berlin: Weidmann, 1905], 477): Quamvis legis prioris extet auctoritas, qua inclytus pater noster contra raptores atrocissime iusserat vindicari, tamen nos tantummodo capitalem poenam constituimus, videlicet ne sub specie atrocioris iudicii aliqua in ulciscendo crimine dilatio nasceretur. In audaciam vero servilem dispari supplicio mensura legum inpendenda est, ut perurendi subiciantur ignibus, nisi a tanto facinore saltem poenarum acerbitate revocentur. 6. C. Th. 9.25.1 (Mommsen and Meyer 478). 7. For (mostly) passing references to these laws as pertaining to Christian virgins and widows who had pledged their continence to God, see, e.g., J. Gaudemet, Lglise dans lempire romain, IVeVe sicles (Paris: Sirey, 1958), 187; P. R. Coleman-Norton, Roman State and Christian Church: A Collection of Legal Documents to AD 535, 3 vols. (London: S.P.C.K., 1966), 1:23435, 299300; R. Gryson, Le ministre des femmes dans lglise ancienne (Gembloux: J. Duculot, 1972), 11920; P.-P. Joannou, La legislation imperiale et la christianisation de lempire romaine, 311476 (Rome: Ponticium Institutum Orientalium Studiorum, 1972), 7475; Grodzynski, Ravies et coupables, 71617; Evans Grubbs, Abduction Marriage, 77; R. Siola, Viduae e coetus viduarum nella chiesa primitiva e nella normazione dei primi imperatori cristiani, in Atti dellAccademia Romanistica Costantiniana VIII (Naples: Edizioni scientiche italiane, 1990), 366426, at 4045; J. Beaucamp, Le statut de la femme Byzance (4e7e sicle), 2 vols. (Paris: De Boccard, 19901992), 1:11819; Evans Grubbs, Law and Family, 193; G. Jenal, Italia ascetica atque monastica: Das Asketen- und Mnchtum in Italien von den Anfngen bis zur Zeit der Langobarden (ca. 150/250604), 2 vols. (Stuttgart: Hiersemann, 1995), 2:758; J. Bremmer, Pauper or Patroness: The Widow in the Early Christian Church, in Between Poverty and the Pyre: Moments in the History of Widowhood, ed. J. Bremmer and L. van den Bosch (London: Routledge, 1995), 3157, at 47; P. O. Cuneo, La legislazione di Costantino II, Costanzo II e Costante (337361), Materiali per una palingenesi delle costituzioni tardo-imperiali 2 (Milan: A. Giuffr, 1997), 251; J. Evans Grubbs, Virgins and Widows, Show-Girls and Whores: Late Roman Legislation on Women and Christianity, in Law, Society, and Authority in Late Antiquity, ed. R. W. Mathisen (Oxford: Oxford University Press, 2001), 22041, at 22324.

144 JOURNAL OF EARLY CHRISTIAN STUDIES

of compiling the Code in the 430s. These editors were commissioned to gather all laws of general applicability from Constantines reign down to their own day and to organize their material by subject matter and then date.8 Modern historians are much indebted to the labors of the ancient compilers, but the felicity of their organization and their headings cannot simply be assumed.9 One need look no further than C. Th. 9.24, which bears the rubric de raptu virginum vel viduarum in spite of the fact that none of its three laws mentions widows. The rubric accompanying title 9.25, I would suggest, is at least as misleading, but this can only be demonstrated by an analysis of these laws in their proper legal and historical context rather than in their current editorial context. DEDICATED WIDOWHOOD Prior to analysis of C. Th. 9.25.12, it may be useful to address three questions in order to clarify what is at issue. First of all, and most basically, what is dedicated widowhood? Simply put, for the purposes of this essay, a dedicated widow will designate any Christian woman who has pledged (in whatever manner) the preservation of her widowed state to God.10 This is a practice that seems to have begun quite early in Christian circles, though our evidence prior to late antiquity is rather thin. Increasingly in the fth century and beyond, it became common for dedicated widows to enter monastic houses, but throughout the medieval period it also remained common for such women to retain their property and to live in semi-retirement in their own homes.11 Two further points of clari8. On the process of compilation, see J. Matthews, Laying Down the Law: A Study of the Theodosian Code (New Haven, CT: Yale University Press, 2000), esp. 5584. The basics of editorial procedure are not in doubt, but there are modern disagreements over the editors sources. See, e.g., the competing views of Matthews, The Making of the Text, in The Theodosian Code, ed. J. Harries and I. Wood (London: Duckworth, 1993), 1944, and in the same volume B. Sirks, The Sources of the Code, 4567; also Sirks, The Theodosian Code: A Study, Studia Amstelodamensia 39 (Friedrichsdorf: Tortuga, 2007), 10941. 9. On aspects of their occasionally misleading editorial work, see M. Sargenti, Il Codice Teodosiano: Tra mito e realt, Studia et documenta historiae et iuris 61 (1995): 37398. 10. Latin vidua could designate a divorce in addition to a woman whose husband had died (OLD s.v. viduus 2; also S. Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian [Oxford: Clarendon Press, 1991], 498). Wherever widow appears in this essay, therefore, the reader is to assume that it reects (at least potentially) the broader semantic range of vidua. 11. I am not aware of any single study that provides a thorough treatment of this phenomenon. A. Rosambert, La veuve en droit canonique jusquau XIVe sicle

WILKINSON / DEDICATED WIDOWS145

cation are perhaps required: (1) Any woman at all who had lost her husband (young, old, rich, poor, divorced, twice-married, etc.) could take a vow of permanent widowhood;12 (2) the term dedicated in this essay is not to be taken in a narrow sense to designate a widow who had undergone any particular ritual of consecration. Indeed, long after the period that concerns us, the very validity of consecratio viduarum (analogous to the ceremony for veiling virgins) was still a matter of debate in canon law and frequently denied.13 Second, how do we know when our sources are referring to Christian widows who had taken vows and when they are referring simply to w idows of any sort? This is a genuine problem that will occupy our attention especially when we come to consider C. Th. 9.25.1. The clearest indication is in the nomenclature, where vidua might be accompanied by any number of qualiers, especially sancta, sanctimonialis, sacrata, deo (de)dicata, devota deo, and professa (continentiam).14 Another sure indication is the mention of a vow (votum, professio, propositum). Wherever such explicit markers are lackingwhere a law or a canon, for example, refers only to viduae without qualicationthe general presumption should probably
(Paris: Librairie Dalloz, 1923), purports to be such and is still occasionally cited, but the book is woefully inadequate. Its deciencies were identied at once in a scathing review by G. Le Bras (RevSR 6 [1926]: 28188). 12. As a very general phenomenon, therefore, this is to be distinguished from two related categories of the ancient church that involved specic entrance requirements and duties: (1) destitute widows on the dole; (2) the clerical or quasi-clerical order of widows, a kind of female diaconate attested in some eastern sources. The following discussion has little or nothing to do, therefore, with the complex evidence for the role of widows in Christian ministry during the rst four centuries. There is an enormous and diverse bibliography devoted to the latter. For judicious attempts to sort through the evidence, see, inter alia, Siola, Viduae e coetus viduarum, 36783; S. Elm, Vergini, vedove, diaconisse: Alcune osservazioni sullo sviluppo dei cosidetti ordini femminili nel quarto secolo in Oriente, Codex Aquilarensis 5 (1991): 7789; Elm, Virgins of God: The Making of Asceticism in Late Antiquity (Oxford: Clarendon Press, 1994), 16682; J.-U. Krause, Witwen und Waisen im rmischen Reich IV: Witwen und Waisen im frhen Christentum (Stuttgart: Franz Steiner, 1995), 5273. 13. See, e.g., Conc. Epaonense (517), can. 21 (CCL 148A:29); Conc. Turonense (567), can. 21 (CCL 148A:187); Gelasius, ep. 14, can. 13, 21 (Thiel, 36970, 374 = Jaff, Regesta2, no. 636). The trend, however, was towards increasing allowance for the components of a ritual of consecration. The eighth-century Gelasian Sacramentary, for example, contains several benedictions to be used in a mass for consecratio viduarum (CCL 159:40510). See discussion in E. Palazzo, Les formules de benediction et de conscration des veuves, in Veuves et veuvage dans le haut Moyen Age, ed. M. Parisse (Paris: Picard, 1993), 3136. 14. See the relevant entries in A. Blaise, Dictionnaire Latin-Franais des auteurs chrtiens (Turnhout: Brepols, 1954).

146 JOURNAL OF EARLY CHRISTIAN STUDIES

be that dedicated widows are not particularly in view, but this must be assessed on a case-by-case basis. A third preliminary question requires considerably more discussion. At what point did vows of permanent widowhood achieve a legal reality? Or, to put it another way, at what point did the dedicated widow become legally distinct from the widow who had not taken vows? From as early as the rst century, there is evidence that some Christian women were pledging to remain celibate, but vows of all sorts were a staple of ancient religion and did not typically imply any fundamental change in status; these were simply pacts between a devotee and a god. At some point, however, in the eyes of both church and state, a Christian widows vow of celibacy acquired canonical and legal signicance. The question, then, is when this occurred.15 Here the analogous case of dedicated virginity is instructive. By the end of the third century, the church already recognized two distinct classes of virgin: secular and dedicated.16 As soon as a virgin was vowed to God, she became subject to a different set of rules. In particular, there were strict ecclesiastical penalties in the event that she engaged in sexual intercourse or took a husband. Already in the canons of Elvira (ca. 300), for example, virgins who had dedicated themselves to God (virgines quae se Deo dicaverunt) were to be excommunicated for life if they broke their vows even once.17 A secular virgin who engaged in premarital sex, on the other
15. B. Jussen (Der Name der Witwe: Zur Konstruction eines Standes in Sptantike und Frhmittelalter, in Veuves et Veuvage, ed. M. Parisse, 13775) has argued that the church never did recognize a distinct class of dedicated widow. This is undoubtedly correct down to the fth century (see below), but there is simply too much evidence that this is not correct from the fth century on, at least in some regions and in some eras. It will sufce to quote merely the beginning of one unambiguous canon from seventh-century Spain (Conc. IV Toletanum, can. 56): duo sunt genera viduarum, seculares et sanctimoniales (CCH 5:234). 16. See especially the classic work of R. Metz, La conscration des vierges dans lglise romaine: tude dhistoire de la liturgie (Paris: Presses universitaires de France, 1954). Formally, a distinction emerged in canon law between virgins who had received the veil (in a ceremony performed by a bishop) and those who had taken vows but had not (or not yet) been consecrated. Both of these sub-classes, however, were clearly distinguished from women who were destined for marriage. 17. Conc. Eliberritanum, can. 13 (CCH 4:246). The canons of Elvira may contain ecclesiastical legislation that is much later than the initial council held around the turn of the fourth century: see M. Meigne, Concile ou collection dElvire? RHE 70 (1975): 36187. Even on Meignes analysis, however, can. 13 is one of the early ones. In the East during the early fourth century, cf. can. 19 of the council of Ancyra (314). Numerous synods of the fourth and fth centuries issued statements designed to regulate the behavior of dedicated virgins.

WILKINSON / DEDICATED WIDOWS147

hand, was to be refused communion for one year only with no requirement of penance.18 Under Christian emperors in the fourth century, the churchs clear distinction between secular and dedicated virgins also came to be reected in civil legislation. A law of 368, for example, releases women with no prospect of marriage from liability for the plebeian capitation tax.19 Dedicated virgins (in virginitate perpetua viventes) are explicitly named as beneciaries, but the law did not apply to those who had not taken vows. It is evident, therefore, both from ecclesiastical canons and from civil legislation, that dedicated virgins possessed a distinct canonical and legal identity in the fourth century. If we bracket for a moment the two raptus laws to be discussed below, there is no contemporary evidence for something similar in the case of dedicated widows. Canon law during this period seems not to have accorded any signicance whatever to a widows vow. To appeal once again to Elvira, if any widow (si qua vidua) committed adultery, she was subject to the same ve-year penance as married persons.20 That is all. The Spanish bishops ratied no canon dealing with a class of vidua analogous to the dedicated virgin. This is also true of all other canonical legislation in the fourth century and early fth.21 It would seem that a dedicated widow was not only free to break her vow and remarry without ecclesiastical sanction (which is not to say that she would have avoided disapproving looks), she was also not subject to any other special regulations that would have distinguished her from any woman who had lost her husband. This did not always remain the case. It is precisely in the rst half of the fth century, in some parts of the Christian world at least, that the

18. Conc. Eliberritanum, can. 14 (CCH 4:24647). 19. C. Th. 13.10.4 (Mommsen and Meyer 764), issued by Valentinian and Valens. For other contemporary legislation pertaining to dedicated virgins, cf. C. Th. 9.25.23, 13.10.6, 15.7.12, 15.8.1. 20. Conc. Eliberritanum, can. 72 (CCH 4:265). 21. Some relevant material in the Statuta ecclesiae antiqua has sometimes been employed as fourth-century evidence on this topic, on the assumption that this collection was produced by the Fourth Council of Carthage in the year 398: e.g., Rosambert, Veuve en droit canonique, 57 n. 1, 65 n. 2; M. McKenna, Women of the Church: Role and Renewal (New York: P. J. Kenedy, 1967), 12122; L. Desanti, Sul matrimonio di donne consacrate a Dio nel diritto romano cristiano, Studia et documenta historiae et iuris 53 (1987): 27096, at 272 n. 6, 275 n. 17. But it is now universally accepted that the Statuta were compiled in Gaul in the later fth century: C. Munier, Les Statuta ecclesiae antiqua: dition, tudes critiques (Paris: Presses universitaires de France, 1960); Munier, Concilia Galliae 314506, CCL 148 (Turnhout: Brepols, 1991), 163; J. Gaudemet, Les sources du droit de lglise en occident du IIe au VIIe sicle (Paris: C.N.R.S., 1985), 84.

148 JOURNAL OF EARLY CHRISTIAN STUDIES

widows vow was beginning to acquire canonical and legal weight. The earliest clear evidence of a liturgical procedure for formalizing her transition to a new status, and the earliest evidence of ecclesiastical sanction for breaking her vow, derives from the rst council of Orange (441).22 Similar canonical legislation was to follow, but there was hardly universal agreement on this point.23 An anecdote from the end of the fth century neatly captures the contours of the debate. A young woman by the name of Antistia took a vow of permanent widowhood after the death of her rst husband but later remarried.24 For this violation she was excommunicated by her bishop, who was evidently of the opinion that her vow (like that of the dedicated virgin) was canonically binding. Antistia appealed this decision to Pope Gelasius, however, who ruled that she should be readmitted to communion because there was no canonical obstacle to the remarriage of a widow, even if she had pledged her continence to God. Gelasiuss conservative positionthat a widow who had taken vows was no different in the eyes of the church from one who had notseems to have been in the minority by the end of the fth century, but this was clearly a complicated and contested issue of canon law at the time, and it remained so well into the medieval period. This history cannot be recounted here, but the important fact for our purposes has already been established: it is not until the fth century that there is any evidence at all for a canonical interest in dedicated widows. Until this point, their vows seem to have been universally considered a matter of personal conscience, not a matter of canonical and legal consequence. Returning now to the two mid-fourth-century raptus laws (C. Th. 9.25.12), we are confronted with a curious problem. If these do indeed pertain exclusively to dedicated widows, then they supply the earliest evidence by far that these women were considered to be legally distinct from
22. Conc. Arausicanum I, can. 26 (CCL 148:85, lines 1047): A vow of perpetual widowhood shall be made in the presence of the bishop in the church sacristy, and it shall be indicated by the widows habit, which is to be bestowed upon her by the bishop. Moreover, the abductor of such women, and the widow herself if she abandons her vow, are justly condemned (Viduitatis servandae professionem coram episcopo in secretario habitam imposita ab episcopo veste viduali indicandam. Raptorem vero talium vel ipsam talis professionem desertricem merito esse damnandam). 23. For subsequent Gallic canons indicating a formal and binding vow, see, e.g., Conc. Arelatense II, can. 46 (CCL 148:123, lines 18889); Conc. Aurelianense (538), can. 19 (CCL 148A:121, 18494); Conc. Aurelianense (549), can. 19 (CCL 148A:155, lines 18496); Conc. Turonense (567), can. 21(20) (CCL 148A:18488); Statuta ecclesiae antiqua, can. 104 (CCL 148:185). 24. The outline of her case can be gleaned from the reaction of Pope Gelasius (492 496) in his letter to Antistias bishop (Thiel, 5034, frag. 38 = Jaff, Regesta2, no. 660).

WILKINSON / DEDICATED WIDOWS149

widows who had not taken vows, preceding by almost a century the rst inkling of this category in canon law. Further suspicion is raised by the fact that no other legislation preserved in the Code mentions this class of person.25 This includes some legislation where the category is conspicuous by its absence, such as the law mentioned above exempting women with no prospect of marriage from liability for the plebeian capitation tax (C. Th. 13.10.4). Though dedicated virgins of any age are recognized as beneciaries, only the widow whose age guarantees that she will not remarry (eam viduam de qua ipsa maturitas pollicetur aetatis nulli iam eam esse nupturam) is granted the same.26 Those who had pledged to remain widows while still in their prime, therefore, were not covered under this legislation; it applied only to older women, whether these had taken vows or not. Apparently, a vow of widowhood did not imply a new status during this period. Such women were no different in the eyes of the law (both civil and ecclesiastical) from any other widow with all of her incidental qualities. Viewed in this light, the two pieces of legislation in the Code that supposedly pertain to the abduction or marriage of dedicated widows are in need of explanation. C. TH. 9.25.2 We begin with the second of these two laws, since it can be shown to be quite clearly irrelevant to the question of dedicated widowhood. Issued by the emperor Jovian in 364, it reads in Mommsens standard edition:
Imp. Iovianus A. Secundo pp. Si quis non dicam rapere, sed vel attemptare matrimonii iungendi causa sacratas virgines vel viduas ausus fuerit, capitali sententia ferietur. Emperor Jovian Augustus to Secundus PPO. If any man should dare, I shall not say to abduct, but even to solicit dedicated virgins or widows for the purpose of matrimonial union, he shall suffer capital punishment.27
25. Siola, Viduae e coetus viduarum, 384418, offers a survey of laws in the Code pertaining to viduae. For reasons that are not clear to me, she seems to be of the opinion that some or all of this legislation pertains only to le vedove che si sono dedicate allascesi domestica (Siola, Viduae e coetus viduarum, 42021). The earliest piece of civil legislation to pay explicit attention to dedicated widows dates to twenty years after the publication of the Code. This is NovMaj 6.5 (October 26, 458), which is an attempt to discourage childless widows under the age of forty from taking vows of permanent continence. 26. C. Th. 13.10.4 (Mommsen and Meyer 764). 27. C. Th. 9.25.2 (Mommsen and Meyer 47879); translation adapted from C. Pharr, The Theodosian Code and Novels and the Sirmondian Constitutions (Princeton,

150 JOURNAL OF EARLY CHRISTIAN STUDIES

This law clearly enshrines the legal force of a womans vow: a man could be prosecuted not only for abducting a sacrata, but even for attempting to solicit her attentions by any means for the purpose of marriage.28 Whereas previous legislation had dealt merely with the crime of abduction, Jovian here seems to state that dedicated women may not even be seduced; they are strictly off limits on pain of capital punishment. Although this appears to be unambiguous proof for the legal recognition of dedicated widowhood as early as 364, it is nothing of the sort. In an excellent article, Lucetta Desanti has already demonstrated that the law, in its original form, did not apply to widows at all.29 Since the point is an important one, and since her argument has not had the impact that it deserves, a full review of the evidence is warranted.30 The problem with C. Th. 9.25.2 is that the text is corrupt at the critical spot for our purposes. Here is the apparatus supplied by Mommsen for the passage in question:
vel viduas] O, vel invitas VHGEPMS, volentes vel invitas XC, vel viduas volentes vel invitas L, om. Iust.

Of these manuscripts, only one (V) preserves the Code itself. The others preserve the Breviary of Alaric (Lex Romana Visigothorum), which was published in 506 for Gallo-Romans living in Visigothic territories. Because this compilation relies heavily on the Code, citing many of its laws verbatim, it is a valuable supplement to the very poor manuscript tradition for the latter. In the case of C. Th. 9.25.2, it will be noted that Mommsens preferred text of sacratas virgines vel viduas is attested only in a single manuscript of the Breviary (O).31 By far the best attested reading is sacra-

NJ: Princeton University Press, 1952), 246. The law bears a date of February 19, 364, apparently two days after Jovians death (Seeck, Regesten, 214); on this discrepancy, see also Evans Grubbs, Virgins and Widows, 224. 28. Or this, at least, is one way to take the verb attemptare, to solicit. It seems that ancient readers always took it either in this sense or in the sense of attemptare (sc. nubere), which amounts to nearly the same thing. It is also possible, however, to read attemptare (sc. rapere), which would be much less restrictive. For discussion of this problem, see Puliatti, La dicotomia vir-mulier, 498500 (survey of scholarly opinion in n. 72). 29. Desanti, Sul matrimonio di donne consacrate a Dio, 27276. 30. The following analysis differs from Desantis in several respects, but I am in fundamental agreement with her on the central issue. Her argument was accepted, at least in part, by Puliatti, La dicotomia vir-mulier, 500, but otherwise seems to have left scarcely a trace. 31. C. Th. 9.25.2 = Brev. 9.20.2 (Lex Romana Visigothorum, ed. G. Hnel [Leipzig: Teubner, 1849], 194).

WILKINSON / DEDICATED WIDOWS151

tas virgines vel invitas, dedicated virgins or women who do not consent. This, however, is clearly nonsensical.32 In order to arrive at the original language of the law, some other reading must be selected. Nonetheless, it is worth pointing out that on the evidence of the manuscripts the unsatisfactory phrase sacratas virgines vel invitas was undoubtedly present in the archetype of the Breviary. This is by far the lectio difcilior and I can see no other explanation for its widespread attestation.33 In fact, as this is also the reading of V, the corruption may have existed before the compilation of the Breviary in at least one branch of the Code itself.34 That this false reading crept in at such an early stage and infected the entire tradition hampers our efforts to reconstruct the original language of Jovians legislation. Several factors, however, allow for a denitive judgment. The three alternatives preserved in manuscripts of the Breviary almost certainly do not reect independent witnesses to the original wording of the law. These are simply ad hoc emendations made by scribes who were quite rightly dissatised with the text of their exemplar (i.e. the majority sacratas virgines vel invitas). One of them, however, is probably correct, or nearly correct at any rate. Of the three, the reading of L (sacratas virgines vel viduas volentes vel invitas) is by far the least likely.35 It looks very much like an attempt to cover all of ones bases. While it is not impossible that three words may have dropped out very early in the tradition, it is more than a little suspicious that L combines the readings of our two other variants. As already noted, Mommsen opted for the solitary witness of O (sacratas virgines vel viduas). This is a manuscript of the Breviary in the Bodleian

32. While this impossible text was printed in Jacques Godefroys edition (Codex Theodosianus cum perpetuis commentariis, 6 vols. in 4 [Leipzig: Weidmann, 1736 1745; originally published 1665], 3:219), most of his commentary is devoted to a consideration of potential alternatives. 33. In his edition of the Breviary, Hnel printed sacratas virgines vel viduas for the same reasons as Mommsen; discussed by Desanti, Sul matrimonio di donne consacrate a Dio, 282 n. 55. But whatever the original wording of Jovians law when it was rst issued in 364, there can be little doubt that the original wording in the Breviary (506) was the corrupt sacratas virgines vel invitas. 34. Indeed, we shall see below that this corruption probably extends all the way back to the very archetype of the Code. On the evidence for the early manuscripts of the Code as well as ancient anxieties about corruption, see Matthews, Laying Down the Law, 4954. 35. Though not reported by Mommsen, this is also the reading of his ms. K (Parisinus nouv. acq. Lat. 1631), which is closely related to L, and perhaps also of his ms. 14 (Montispessulanus 84). This can be deduced from the apparatus supplied by Hnel (p. 194).

152 JOURNAL OF EARLY CHRISTIAN STUDIES

Library that he thought to be of extreme interest and importance and that he classied among his codices meliores.36 There are reasons, however, to doubt its value in this instance. By preferring O, Mommsen implicitly subscribed to a theory that the original viduas was corrupted early on to the majority invitas. His choice certainly results in a reading that conforms to the rubric, where one nds sanctimonialium virginum vel viduarum, but that fact generates more suspicion than condence. Any scribe who noticed the infelicity of invitas in his corrupt exemplar might have replaced it with viduas precisely because this was purportedly a title about dedicated virgins and/or widows.37 It is far too easy a substitution to be above suspicion. Furthermore, it strikes me as unlikely that a phrase as unproblematic as virgines vel viduas, if that were the original wording, would have suffered such a serious misreading as virgines vel invitas in the rst place. On text-critical grounds, the reading most likely to have given rise to the faulty majority text is surely that of X and C: sacratas virgines volentes vel invitas.38 If this were the original language of the law, then the early corruption that has contaminated the tradition would be the product of simple mechanical error. This is far more plausible than the suggestion that a very straightforward phrase was badly misread by some early scribe. The unintentional omission of volentes (or perhaps more likely vel volentes) is especially plausible given the heavy consonance in this portion of the law. Moreover, the emended phrase generates very good sense. Constantines law condemning raptus (C. Th. 9.24.1) laid a great deal of stress on the fact that an abductor was still liable even if he had managed to gain the womans consent. In fact, the language used is identical: si quis . . . invitam eam rapuerit vel volentem abduxerit . . . (If anyone should abduct the victim without her consent, or lead her away with her consent...).39

36. See Mommsen and Meyer, Theodosiani libri, lxvilxvii. For his interest in this manuscript, as expressed in correspondence with Francis Havereld of Oxford, see B. Harries Cloke, Mommsens Encounter with the Code, in The Theodosian Code, ed. and Wood, 21739, at 22632. 37. So too Desanti, Sul matrimonio di donne consacrate a Dio, 274 n. 15, 282 n. 55. 38. These two manuscripts of the Breviary are closely related; see Mommsen and Meyer, Theodosiani libri, lxxivlxxv. That Mommsen considered them to exhibit more errors and interpolations than the better manuscripts (Mommsen and Meyer, Theodosiani libri, lxv) is here irrelevant. Because the Breviary was corrupt to begin with, we are simply looking for the most plausible emendation rather than the most reliable witness. 39. C. Th. 9.24.1.pr. (Mommsen and Meyer 476).

WILKINSON / DEDICATED WIDOWS153

This point was taken up again in C. Th. 9.25.1, which was issued by Constantius II in the year 354: . . .nec ullus sibi ex posteriore consensu valeat raptae blandiri (. . . nor shall any man be able to delude himself by the subsequent consent of the abducted woman).40 If C. Th. 9.25.2 did originally read sacratas virgines (vel) volentes vel invitas, therefore, this phrase would have simply expressed more tersely a traditional element of ancient raptus legislation, namely, that the victims consent was irrelevant for determining the guilt of the offender. Both on text-critical grounds and for sense this is the best reading. Thus, Jovians law in its original form apparently covered only the abduction or seduction of dedicated virgins, whether or not these consented; it did not pertain to dedicated widows. In most cases, analysis of the manuscripts would be denitive. But since we are dealing here with a text that was corrupt already in the archetype of the Breviary, and then secondarily with three later scribal guesses, any evidence that can be gleaned from early readers is most welcome. And we are fortunate enough in this case to have several witnesses. The version printed by Mommsen (that of ms. O) is found in one external testimony. The Gallic bishops who assembled for a council in Tours in the year 567 composed a canon that deals in part with the abduction or marriage of women who were dedicated to God. Among various precedents, they cite C. Th. 9.25.2 in the following form: Si quis, non dicam rapere, sed adtemptare matrimonii iungendi causa sacratas virgines vel viduas ausus fuerit, capitis sententiam feriatur.41 This is obviously a direct quotation, and it contains the words sacratas virgines vel viduas.42 The value of this testimony is vitiated, however, by the fact that the bishops were demonstrably using the Breviary of Alaric, which we know to have contained a corrupt version of this law from its very inception.43 One imagines that either they were using a manuscript containing the emendation also found in O or

40. C. Th. 9.25.1 (Mommsen and Meyer 478). 41. Conc. Turonensis, can. 21 (CCL 148A:186, lines 29597). 42. Or does it? This is the text printed by F. Maassen (MGH, Conc. 1 [Hannover, 1893], 129), followed by C. de Clercq (CCL 148A:186). Earlier editions of this canon, however, read simply sacratam virginem ausus fuerit (with no mention of widows); see the editions of L. Surius (1567), J. Sirmond (1629), J. D. Mansi (1763). Since the apparatus supplied by Maassen (and reproduced by de Clercq) oddly reports this discrepancy but not the manuscript readings, and since I have had no occasion to consult the manuscripts myself, the true text of the canon remains obscure to me. The following comments, therefore, blindly assume that Maassen and de Clercq are justied in their choice to print sacratas virgines vel viduas. 43. In this same portion of the canon (CCL 148A:186, lines 29294), they quote the Breviarys interpretation of C. Th. 9.25.1 (see below).

154 JOURNAL OF EARLY CHRISTIAN STUDIES

they themselves resolved the textual difculty in the same way. This evidence is not worthless, but it is suspect. It is especially suspect when compared with several earlier witnesses to the law. The rst of these is indirect but signicant because it predates both the compilation of the Breviary and the compilation of the Code. In 420, the western emperor Honorius issued the third and nal law that would be included in title 9.25:
Impp. Honor(ius) et Theod(osius) AA. Palladio PPO. Post alia: Si quis dicatam deo virginem prodigus sui raptor ambierit, publicatis bonis deportatione plectatur, cunctis accusationis huius licentia absque metu delationis indulta. Neque enim exigi convenit proditorem, quem pro pudicitia religionis invitat humanitas. Emperors Honorius and Theodosius Augusti to Palladius, Praetorian Prefect. (After other matters.) If any abductor, prodigal of his own life, should solicit a virgin dedicated to God, his goods shall be conscated and he shall be punished with exile by deportation. The right is granted to everyone to make this accusation without fear of the charge of being an informer. For a person must not be considered an informer if his humanity invites him to this course for the sake of the purity of religion.44

This is, in fact, an excerpt from a longer imperial pronouncement that survives in the so-called Sirmondian Constitutions (10), where it is reported that it was issued in response to the proposal of a clergyman.45 The signicant fact for our purposes is that just prior to this excerpt the framer of the law had explicitly referred to previous legislation on the topic, presumably meaning (at least) Jovians law of 364, but he makes no mention of dedicated widows.46 This is hardly denitive, of course, but it is nevertheless noteworthy that in essentially reiterating the provisions of C. Th. 9.25.2, Honorius names only dedicated virgins. All of our more direct witnesses to Jovians law postdate the publication of the Code in 438. The rst of these, however, is only about a decade
44. C. Th. 9.25.3 (May 8, 420); the manuscripts mistakenly give the day as VIII id. Mart. but from comparison with Sirm. 10 and C. Th. 16.2.44 it should clearly be VIII id. Mai. (Seeck, Regesten, 344). Translation adapted from Pharr, Theodosian Code, 246. 45. For discussion, see Desanti, Sul matrimonio di donne consacrate a Dio, 27677; Matthews, Laying Down the Law, 14345. 46. Sirm. 10 (Mommsen and Meyer 915): Illam vero desiderii partem legum quoque praeeuntium scita solidarunt, ut quisquis dedicatam deo virginem prodigus ambierit... (Pharr, Theodosian Code, 246: The decrees of the foregoing laws also conrm that part of the recommendation, namely, that if any abductor, prodigal of his own life, should solicit a virgin dedicated to God . . .).

WILKINSON / DEDICATED WIDOWS155

removed. This is the Ecclesiastical History of Sozomen, a professional lawyer who was writing in Constantinople in the mid-fth century.47 During his narrative of Jovians brief reign, he offers a paraphrase of C. Th. 9.25.2: [Jovian] issued a general law to Secundus, who was praetorian prefect at the time, stating that if any man should attempt to solicit a holy virgin for the purpose of marriage, or even if he should merely look at her intemperately, to say nothing of actual abduction, he shall suffer capital punishment.48 The paraphrase is quite faithfulindeed, it might even be called a translationand yet there is no mention here of widows. Apparently, the version of the law known to Sozomen, just a few years after the publication of the Code, did not contain the words vel viduas.49 Nor, however, does he provide any equivalent for the alternative (vel) volentes vel invitas.50 Rather, in the place where we might expect one of these two phrases to stand, Sozomen has something entirely different: (or even if he should merely look at her i ntemperately). Perhaps this is simply a rhetorical embellishment of his own, but I strongly suspect that he was attempting to interpret the corrupt phrase that we have already encountered in the majority of our manuscripts: sacratas virgines vel invitas. It appears that Sozomen has
47. On Sozomens use of the Code, see J. Harries, Sozomen and Eusebius: The Lawyer as Church Historian in the Fifth Century, in The Inheritance of Historiography 350900, ed. C. Holdsworth and T. P. Wiseman (Exeter: University of Exeter, 1986), 4552. 48. Sozomen, H. e. 6.3.5 (ed. G. C. Hansen, Sozomen: Kirchengeschichte, vol. 3, Fontes Christiani 73/3 [Turnhout: Brepols, 2004], 682): , , . 49. It should be noted, however, that, shortly before his citation of this law, Sozomen says that Jovian restored privileges to the churches, clergy, widows, and virgins ( , ) that had been instituted by Constantine and his sons and then revoked by Julian the Apostate (H. e. 6.3.4 [Hansen 682]). Does this reect an awareness that C. Th. 9.25.2 originally applied to dedicated widows as well as virgins? Or was he inuenced by the arrangement of material in the Code, in which title 9.25 supposedly applied to both classes of women? I suspect the latter. If the former, it is difcult to see why he would omit widows from his text of the law itself. 50. Here too, however, Sozomen includes a tantalizing detail in his account of the historical conditions that occasioned the law. He says (H. e. 6.3.6 [Hansen 684]) that during the reign of Julian many men had wickedly taken holy virgins as their wives by force or by persuasion ( ). Does this reect an awareness of the phrase (vel) volentes vel invitas? Or is it simply a coincidence? Once again, it would be odd if he read this phrase in the law itself and yet failed to include it in his citation.

156 JOURNAL OF EARLY CHRISTIAN STUDIES

emended this impossible text to read sacratas virgines vel invisas (sc. pple. of invidere = to look at someone jealously or with evil intent).51 He has made some adjustments to accommodate this reading, but it does seem to be the verb invidere that lies behind his , which would not be an unreasonable rendering in the context of sexual offences. Rather than narrowing our options, therefore, we have discovered here yet another. But the reading vel invisas has no greater claim to authenticity; in fact, it is quite improbable.52 Like the manuscript variants considered above, this was simply one mans attempt to make sense of the corrupt sacratas virgines vel invitas. Given Sozomens proximity to the publication of the Code, however, the natural conclusion is that this corruption existed, not merely in the archetype of the Breviary, but also in the archetype of the Code itself.53 This might explain the version of Jovians law preserved in the sixthcentury Codex Iustinianus, which reads as follows:
Imp. Iovianus A. Secundo pp. Si quis non dicam rapere, sed attemptare tantum matrimonii iungendi causa sacratissimas virgines ausus fuerit, capitali poena ferietur. Emperor Jovian Augustus to Secundus PPO. If any man should dare, I shall not say to abduct, but even merely to solicit dedicated virgins for the purpose of matrimonial union, he shall suffer capital punishment.54

The wording differs from Mommsens text of C. Th. 9.25.2 at four points: the insertion of tantum, the alteration of sacratas to sacratissimas, the omission of vel viduas, and the substitution of capitali poena for capitali sententia. The rst two and the last are merely stylistic; it is the third variation that is of greatest importance. The compilers of the Codex Iustinianus simply omitted the phrase that we have been attempting to x. But why?
51. By altering one letter, he has converted the words following sacratas virgines into a kind of parenthesis: Si quis non dicam rapere, sed vel attemptare matrimonii iungendi causa sacratas virgines, vel invisas, ausus fuerit, capitali sententia ferietur (literally, If any man should dare, I shall not say to abduct, but even to solicit dedicated virgins for the purpose of matrimonial union, or even if they are regarded with evil intent, he shall suffer capital punishment). Sozomen mitigates some of the awkwardness by converting the emended phrase into the active voice: . . . (or even if he should regard her . . .; see n. 48 above). 52. It is not attested anywhere else, it is of dubious Latinity, and mere thoughts are not the concern of law. 53. Recall that the only manuscript of the Code for this title (V) contains the corrupt reading sacratas virgines vel invitas. 54. C.-Iust. 1.3.5 (ed. P. Krger, Codex Iustinianus, Corpus Iuris Civilis 2 [Berlin: Weidmann, 1877; repr. 1967], 19).

WILKINSON / DEDICATED WIDOWS157

If their sources read (vel) volentes vel invitas at this point, it is possible that they deemed these words superuous and so omitted them. The same explanation, however, would not be admissible if their sources read vel viduas; the omission of widows would have amounted to a change in the scope of Jovians edict. Nor is it possible that they excised vel viduas in order to bring the law into line with the contemporary legal context; for Justinian himself issued comprehensive raptus legislation that explicitly paired dedicated virgins and widows.55 In fact, it appears likeliest that the manuscripts available to the compilers of the Codex Iustinianus contained the corrupt phrase sacratas virgines vel invitas and that they simply deleted the offending words rather than attempt to emend them. Another relatively early witness is found in the Lex Romana Burgundionum, compiled around the turn of the sixth century for Romans living in Burgundian territories:
Quod si devotam Deo puellam raptor abduxerit, et de coniunctione viri illa consenserit, lii ex tali conditione nati, punitis his secundum legem Theudosiani ad Secundum praefectum praetorio datam, qui se taliter coniunxerint, in hereditatem non veniant. If any abductor should abduct a virgin who is dedicated to God, and if that woman should consent to marry the man, any sons born of such a union shall be barred from inheritance, while those who contract this sort of marriage shall be punished in accordance with the Theodosian law issued to Secundus PPO.56

The reference to a Theodosian law (i.e. a law contained in the Theodosian Code), pertaining to raptus and addressed to the praetorian prefect Secundus, is unquestionably a reference to C. Th. 9.25.2. Unfortunately, it is neither quoted in full nor even paraphrased, but once again dedicated widows are not part of the picture; this Burgundian law deals only with the marriage of dedicated virgins. This is perhaps a further strike against the viability of reading vel viduas in C. Th. 9.25.2. It is also the case that the Burgundian law explicitly raises the question of consent: if a dedicated virgin consents to marriage, any children resulting from the union are illegitimate and punishment is to be dispensed in accordance with Jovians law. Could this be a reminiscence of the phrase sacratas virgines (vel) volentes vel invitas? Perhaps, but this is highly speculative. There is no clear indication that the compilers of the Lex Romana Burgundionum
55. C.-Iust. 1.3.53(54), 9.13.1. See below. 56. Lex Romana Burgundionum 9.4, MGH, LL nat. Germ. 2.1 (Hannover, 1892), 13233. Discussed by Desanti, Sul matrimonio di donne consacrate a Dio, 28284.

158 JOURNAL OF EARLY CHRISTIAN STUDIES

knew anything other than the corrupt version of this law that we have encountered so often (sacratas virgines vel invitas). A nal piece of evidence comes from a papal decretal of the early sixth century. In a letter addressed to Caesarius of Arles in the year 513, Pope Symmachus laid down several disciplinary canons, including the following:
Raptoris igitur viduarum et virginum pro inmanitate tanti facenoris detestamur, illos vehementius persequendo, qui Deo sacratas virginis vel volentes vel invitas matrimonio suo sociare temptaverint. We denounce abductors of widows and virgins for the heinousness of such a crime, prosecuting more vehemently those who attempt to marry virgins who are dedicated to God, whether they consent or not.57

Symmachus begins with a general statement about raptus of virgins and widows (of any sort), but he goes on to condemn especially attempts to marry dedicated virgins in language that recalls C. Th. 9.25.2. It is certainly not a verbatim quotation, but it does capture the main elements: it is criminal to attempt (attemptare or temptare) to join (iungere or sociare) to oneself in marriage (matrimonium) dedicated virgins (sacratas virgines), whether they consent or not (vel volentes vel invitas). There can be little doubt that Symmachus was borrowing the language of civil legislation to set out the conditions under which the church should take action against a raptor or seducer.58 It is signicant, then, that he supplies precisely the phrase that we have suspected all along must lie behind the corrupt version of C. Th. 9.25.2: sacratas virgines (vel) volentes vel invitas. It might be tempting to think that this is merely another guessindeed, I have suggested that manuscripts X and C of the Breviary probably arrived at the same reading in this waybut there is a crucial difference in this case. Every other explicit witness that we have considered is entirely dependent (directly or indirectly) on the Theodosian Code. Pope Symmachus, how-

57. MGH, Epp. 3 (Berlin, 1892), 3839 (= Jaff, Regesta2, no. 764). For historical context, see W. E. Klingshirn, Caesarius of Arles: The Making of a Christian Community in Late Antique Gaul (Cambridge: Cambridge University Press, 1994), 12732. 58. This was a period of extensive codication, in which there was considerable overlap between ecclesiastical and secular projects. Shortly before the date of Sym machuss letter, Gallic clergy, including Caesarius, had played a part in both the compilation of the Breviary (506) and the promulgation of canons at the council of Agde (506). On this cross-fertilization, see recently R. W. Mathisen, DAire-sur-lAdour Agde: Les relations entre la loi sculire et la loi canonique la n du royaume de Toulouse, in Le brviaire dAlaric: Aux origines du code civil, ed. M. Rouche and B. Dumzil (Paris: PUPS, 2008), 4152.

WILKINSON / DEDICATED WIDOWS159

ever, had access to a different source: the papal archives. From at least the mid-fourth century, it seems that the Roman church had kept copies of pertinent imperial legislation.59 When Jovians law proscribing the seduction of dedicated virgins was published in 364, a copy presumably went on le in the archives of the Roman church. It is possible, therefore, that the source consulted by Symmachus was independent of the corruption that existed in the Code and its derivatives. We are now in a position to summarize the complicated textual history of C. Th. 9.25.2. In its original form, Jovians law condemned both abduction and seduction of dedicated virgins, whether these consented or not (sacratas virgines vel volentes vel invitas). When it was copied into the very archetype of the Theodosian Code, however, the copyists eye skipped from the rst vel to the second, yielding the corrupt phrase sacratas virgines vel invitas.60 The compilers of the Breviary faithfully reproduced the corrupt version. This impossible text generated several attempted solutions among readers of one of these two compilations:
Sozomen, H. e. 6.3.5: sacratas virgines vel invisas C.-Iust. 1.3.5: sacratissimas virgines (omitting vel invitas) Conc. Tur., can. 21 / Brev. ms. O: sacratas virgines vel viduas Brev. mss. X / C: sacratas virgines volentes vel invitas Brev. ms. L: sacratas virgines vel viduas volentes vel invitas

All of these were simply speculative attempts to correct an obviously corrupt text. Pope Symmachus, however, may have had access to a copy of Jovians law in the papal archives that was independent of the Code and therefore also untainted by its corruption. Oddly enough, his decretal may be our most reliable witness to the troublesome phrase. In any case, it agrees with manuscripts X and C in supplying the language that a textcritical analysis must also prefer:61

59. Cf. C. Th. 16.2.20 (370). The subscription declares that this law was read in the churches of Rome on July 30; there can be little doubt that Pope Damasus kept a copy on le. In fact, the information contained in the subscription to this law suggests that the compilers of the Code used a Roman source for their textperhaps the very one preserved in the church archives. Our knowledge of the papal bureau during this early period is patchy, but it was apparently well developed already by the time of Damasus; see C. Pietri, Roma Christiana: Recherches sur lglise de Rome, son organization, sa politique, son idologie de Miltiade Sixte III (311440), 2 vols. (Rome: cole Franaise de Rome, 1976), 1:67280. 60. Or it is possible, of course, that this scribal error had occurred somewhat earlier in the chain of transmission. 61. So too Desanti, Sul matrimonio di donne consacrate a Dio, 27576.

160 JOURNAL OF EARLY CHRISTIAN STUDIES Imp. Iovianus A. Secundo pp. Si quis non dicam rapere, sed vel attemptare matrimonii iungendi causa sacratas virgines vel volentes vel invitas ausus fuerit, capitali sententia ferietur. Emperor Jovian Augustus to Secundus PPO. If any man should dare, I shall not say to abduct, but even to solicit dedicated virgins for the purpose of matrimonial union, whether they consent or not, he shall suffer capital punishment.

C. TH. 9.25.1 Since C. Th. 9.25.2 did not apply to dedicated widows, there is only a single law contained in the Code that purportedly deals with this class of person. This is the previous entry in the same title, a piece of legislation issued by Constantius II in the year 354:
Imp. Constantius A. ad Ortum. Eadem utrumque raptorem severitas feriat nec sit ulla discretio inter eum, qui pudorem virginum sacrosanctarum et castimoniam viduae labefactare scelerosi raptus acerbitate detegitur. Nec ullus sibi ex posteriore consensu valeat raptae blandiri. Emperor Constantius Augustus to Ortus. Abductors of both kinds shall be punished with equal severity and there shall be no distinction between the man who is discovered to have violated, by the atrocious crime of raptus, the honor of sacrosanct virgins and the one who violates the chastity of a widow. Nor shall any man be able to delude himself by the later consent of the woman whom he abducted.62

This is a curious statement. In part, the difculty derives from the fact that what survives is evidently an excerpt from a somewhat longer text. The editors of the Code often dispensed with all but the essential clauses of imperial legislation. In this case, the abruptness of the laws opening words, which seem to require two previously mentioned kinds of abductor, is a sure sign that a preamble, at least, is now missing. But what are we to make of the surviving fragment? If this is the rst piece of legislation to condemn raptus of dedicated virgins and widows, as generally believed and as its editorial context in the Code suggests,63 the language is remarkably ambiguous. Pudor and
62. C. Th. 9.25.1 (Mommsen and Meyer 478); translation adapted from Pharr, Theodosian Code, 246. The law is dated August 21, 354. 63. Even those who have recognized the truth about C. Th. 9.25.2 have nevertheless accepted the traditional view that C. Th. 9.25.1 deals with offenses against dedicated virgins and widows: Desanti, Sul matrimonio di donne consacrate a Dio, 274 n. 5, 275 n. 18; Puliatti, La dicotomia vir-mulier, 49597.

WILKINSON / DEDICATED WIDOWS161

castimonia are traditional Roman virtues that certainly do not require or imply the presence of a vow.64 Moreover, the vidua mentioned here is not designated with any of the descriptors that were typically applied to Christian women who were vowed to God (see above). The only indication in the terminology that dedicated women might be in view is the phrase virgines sacrosanctae. It appears that the editors of the Code took this to be a reference to dedicated virgins (hence the laws placement in title 9.25), but it is not clear that this was the original intent. In Christian Latin, sacrosanctus is used especially of the church (ecclesia) and the fundamentals of religion (mysteria, baptisma, etc.). This is also the case in imperial legislation from Constantine forward.65 But I have been able to nd no parallel example of this adjective used to designate persons who had taken vows of continence. Its similarity to other words that were used in this way (sancta, sanctimonialis, sacrata) may be sufcient, but the supposition of a unique usage in this case is a precarious starting point for further interpretation of the law. If, on the other hand, a more mundane interpretation of the phrase is sought, anyone at all would have admitted that virgins (that is, unwed girls) were inviolable, which is what sacrosanctus conveys at its root.66 Indeed, they had been explicitly protected from violation by imperial constitution (C. Th. 9.24.1).67 Such a reading, however, encounters a similar problem: while in later Latin sacrosanctus can mean inviolable, there is perhaps no clear example in Roman legal texts.68 The phrase virgines sacrosanctae in C. Th. 9.25.1 is therefore something of an enigma.
64. See, e.g., Treggiari, Roman Marriage, 1057, 233. For the application of these and related words to a broad array of persons in Roman legislation, both classical and post-classical, see B. Biondi, Il diritto romano cristiano, 3 vols. (Milan: Giuffr, 195254), 2:26379. 65. E.g., sacrosancta ecclesia: C. Th. 5.3.1, 11.1.33, 16.2.29, 16.4.6; sacrosancta religio: C. Th. 8.5.46, 16.7.5, and Sirm. 1, 11; sacrosancta mysteria: C. Th. 12.1.123.5; sacrosancta lex: C. Th. 16.2.45, 16.5.56, and Sirm. 1, 6. For a complete list of passages, see O. Gradenwitz, Heidelberger Index zum Theodosianus (Berlin: Weidmann, 1925), 221. 66. OLD s.v. In non-Christian Latin of the period, see Servius, Aen. 4.27 (Servianorum in Vergilii carmina commentariorum editionis Harvardianae volumen III, ed. A. F. Stocker et al. [Oxford: Oxford University Press, 1965], 259): pudor sacrosancte custodiendus est. 67. Classically, sacrosanctus was associated with tribunician power (OLD s.v.), which Augustus usurped and subsequent emperors retained. See Res Gestae Divi Augustus 10.1 (Res Gestae Divi AugustusHauts faits du divin Auguste, ed. J. Scheid [Paris: Belles Lettres, 2007], 10): sacrosanctu[s in perp]etu<u>m [ut essem, et q]u o a d vi verem tribunicia potestas mihi e[ sset per lege]m st [atutum est.] 68. The references in the Code, however, to sacrosancta ecclesia, etc. (see above) regularly occur in the context of privileges or protections that had been established

162 JOURNAL OF EARLY CHRISTIAN STUDIES

Just as murky is the point of this law if it does indeed refer to dedicated women. Already under Constantine, C. Th. 9.24.1 had made it clear that the abductor of any virgin (and therefore also any dedicated virgin) was subject to capital punishment. C. Th. 9.25.1, unlike Jovians legislation of a decade later, does not redene the nature of the crime in the event that the victim was vowed to God, nor does it institute any new penalties. If the intent was simply to state that raptus of dedicated virgins and widows was a crime, the declaration that abductors of both kinds are subject to the same penalties is a bizarre manner in which to express this thought. It seems, rather, that the point here is to extend protections that already existed for one group to cover the other as well. That is to say, Constantiuss law appears to bring widows under the purview of C. Th. 9.24.12, where only unwed girls (virgines or puellae) had been mentioned. If this is right, it is difcult to see what the legislation has to do with dedicated women at all. Perhaps some further illumination will come from a consideration of the legislative context, which can be tentatively reconstructed. In the rst place, it is worth noting that C. Th. 9.25.1 is addressed, not to a praetorian prefect, who was the usual recipient of general laws, but rather to Memmius Vitrasius Ortus, who was prefect of Rome at the time.69 This raises the possibility that Constantius may have been responding to a local issue.70 In fact, I think it likely that what we have is part of the emperors response to a request for clarication from Ortus: Is the abductor of a widow liable to the same penalties as the abductors of sacrosanct virgins?71

by imperial constitution. See, e.g., C. Th. 16.2.29 (Mommsen and Meyer 844), dated March 23, 395: quaecumque a parentibus nostris diversis sunt statuta temporibus, manere inviolata adque incorrupta circa sacrosanctas ecclesias praecipimus (Pharr, Theodosian Code, 445: We direct that whatever statutes were enacted by Our Fathers at different times with respect to the sacrosanct churches shall remain inviolate and unimpaired). It is difcult to say whether the adjective sacrosanctas conveys on its own the notion of inviolability (protection by imperial law) or whether sacrosanctas ecclesias is simply a stock phrase meaning little more than holy churches. 69. On Ortus, see A. Chastagnol, Les fastes de la prfecture de Rome au BasEmpire, tudes prosopographique 2 (Paris: C.N.R.S., 1962), 13947; PLRE 1:65153; Alan Cameron, Ortus and Constantius: A Note on Roman Gold-Glasses, Journal of Roman Archaeology 9 (1996): 295301. 70. The jurisdiction of the urban prefect extended to a radius of one hundred miles from Rome: Dig 1.12.1.4; A. H. M. Jones, The Later Roman Empire 284602: A Social, Economic and Administrative Survey, 2 vols. (Oxford: Basil Blackwell, 1964), 1:48182. 71. This might offer a clue to the curious phrase virgines sacrosanctae: perhaps it reects Ortuss language rather than the legislators. See Alan Cameron, The Last

WILKINSON / DEDICATED WIDOWS163

Some such question may have been restated in the laws missing preamble, but the editors of the Code excerpted only the answer: Abductors of both kinds shall be punished with equal severity, etc. If this reconstruction is correct, we can be quite condent of the reason for Ortuss decision to put such a question to the emperor. As urban prefect, he was the judicial magistrate for Rome and its environs. Presumably, therefore, a case involving the abduction of a widow was brought before him in the rst half of 354.72 Because the existing legislation pertaining to this crime dealt only with infractions against unmarried girls, Ortus may have sent a relatio to Constantius in order to ascertain whether the abductor of a widow was similarly liable.73 This reconstruction is conjectural, of course, but it is perhaps the scenario that best explains the excerpts peculiarities. Whatever one makes of C. Th. 9.25.1, the presumption that this difcult law pertains in any way to dedicated widows ought to be considered extremely dubious. Quite apart from its terminological ambiguity, as well as the place that it seems to hold in the progression of late antique raptus legislation, there is no indication for almost a century after 354neither in ecclesiastical nor in secular lawthat a widows vow entailed any legal
Pagans of Rome (Oxford: Oxford University Press, 2011), 62 (speaking of laws in C. Th. that are addressed to ofcials other than the praetorian prefects): The surviving law is often, in effect, the original request sent to court by some local ofcial, approved, reformulated, and returned to him as instructions. If the phrase virgines sacrosanctae came from Ortus, a pagan, it may mean no more than unmarried girls, whom the emperors have declared inviolable (with reference to C. Th. 9.24.12). 72. The parameters are these: Ortus assumed the post of urban prefect on December 8, 353 (Chastagnol, Fastes, 139) and Constantiuss law is dated September 22, 354. There is an old opinion, more recently resurrected, that this law might have something to do with Naeratius Cerealiss attempt to win the hand of the young Christian widow Marcella; see M. Letsch-Brunner, Marcella, Discipula et Magistra: Auf den Spuren einer rmischen Christin des 4. Jahrhunderts (Berlin: Walter de Gruyter, 1998), 3637. This conjecture goes back at least to Godefroy (3:219). Our knowledge of Marcellas early chronology is very imprecise, but the timing is approximately right, and it is an interesting coincidence (?) that Cerealis was Ortuss immediate predecessor in the ofce of praefectus urbi (Chastagnol, Fastes, 13539). There are also, however, some counterarguments. Jerome gives no hint of anything untoward in his account of the marriage proposal (ep. 127.2), reporting that Cerealis offered to install Marcella as his heir if she would agree to marry him. Moreover, Cerealis (certainly) and Ortus (possibly) were related by marriage to the emperor. Perhaps most signicantly, Cerealis seems not to have suffered any penalties; at any rate, not long after issuing C. Th. 9.25.1, Constantius appointed him consul ordinarius for the year 358 (on his career, see PLRE 1:19799). 73. This was standard procedure, but Ortus was also a favorite of Constantius and may, in fact, have been married to the emperors niece (Cameron, Ortus and Constantius, 300301).

164 JOURNAL OF EARLY CHRISTIAN STUDIES

obligations, rights, or privileges. In fact, much of the confusion surrounding this law (and the entire title) can probably be attributed precisely to the anachronistic perspective of the editors of the Code. In the fth century, the widows vow came increasingly to be viewed, not merely as a matter of personal conscience, but as a binding oath that conferred a new canonical and legal status (as had been the case for some time with vows of virginity). As a result, it probably seemed obvious to many in the 430s that whatever applied to dedicated virgins should also apply to dedicated widows. It was this assumption, perhaps, that caused the compilers of the Code to see an equivalence of these two groups in the oddly worded C. Th. 9.25.1. In its original context, however, this law seems to have had nothing to do with dedicated women. The trajectory in the fth century towards assimilating vows of widowhood and virginity can also be seen in the interpretatio attached to C. Th. 9.25.1. The interpretations following many laws in our editions of the Code are not integral to the legislation but rather derive from the Breviary of Alaric.74 In this case, the Breviarys compilers declared in no uncertain terms that Constantiuss law pertained to the abduction of dedicated virgins and widows: Quicumque vel sacratam deo virginem vel viduam fortasse rapuerit, si postea eis de coniunctione convenerit, pariter puniantur.75 Following on the suggestive placement of this law in title 9.25 of the Code, the compilers of the Breviary unsurprisingly interpreted it as a protection for dedicated women and sought to make its purport, as they understood it, more explicit.76 While it seems, therefore, that C. Th. 9.25.1 was originally intended to bring widows (of any sort) under the purview of earlier raptus legislation, the editors of the Code and of the Breviary, as well as everyone else thereafter, treated it as though it was the rst law to condemn the abduction of sacratae deo virgines vel viduae.
74. I am persuaded by the argument that the interpretationes were composed expressly for the compilation of the Breviary and do not (what is possible in theory and advocated by some) represent a continuous tradition of legal commentary. See J. Matthews, Interpreting the Interpretationes of the Breviarium, in Law, Society, and Authority in Late Antiquity, ed. R. W. Mathisen (Oxford: Oxford University Press, 2001), 1132; J. Gaudemet, Le brviaire dAlaric et les epitome, Ius Romanorum Medii Aevi 1.2b.aa.p (Milan: Giuffr, 1965), 3741. 75. C. Th. 9.25.1.interp. (Mommsen and Meyer 478 = Hnel 194). 76. Their interpretatio was cited verbatim at the council of Tours (567), can. 21 (CCL 148A:186, lines 29294). It may be telling that the Gallic clergy assembled at this council quoted the interpretation rather than the law itself. They wanted to cite civil protections for virgins and widows who had taken vows; presumably they found the unequivocal language of the interpretatio more amenable than the neutral language of Constantiuss actual pronouncement.

WILKINSON / DEDICATED WIDOWS165

CONCLUSION Neither of the two laws considered above, in their original contexts, pertained to dedicated widows. The whole title, therefore, as well as its rubric, is quite misleading. C. Th. 9.25.1 appears merely to broaden the scope of raptus to include the abduction of widows (of any sort). C. Th. 9.25.2 censures both abduction and seduction of dedicated virgins and is therefore at home in its current editorial context, but it did not encompass sacratae viduae. The same is true of the third and nal entry in this title a law issued by Honorius in 420 that reiterates in essence C. Th. 9.25.2. The progression of legislation on this topic in the Code may therefore be set out in a table as follows:
C. Th. 9.24.1 (326) C. Th. 9.24.2 (349) C. Th. 9.25.1 (354) C. Th. 9.25.2 (364) C. Th. 9.24.3 (374) C. Th. 9.25.3 (420) dedicated virgins. forbids raptus of unwed girls. reduces the legal penalties. extends existing legislation to cover raptus of widows. forbids even solicitation of dedicated virgins. introduces a statute of limitations (ve years). reafrms penalties for raptus or solicitation of

In a sense, therefore, the compilers of the Code got it wrong: 9.25.1 would have found a more natural home in title 9.24 (de raptu virginum vel viduarum), and while 9.25.23 do pertain specically to virgins who had taken vows of continence, neither of these mentions dedicated widows. Error, however, is perhaps not the best way to describe what took place here. Far from creating a purely historical record of earlier imperial law, the editors were compiling a source for use within the context of a living legal tradition. Whatever the original intent and scope of the legislation assembled in title 9.25, by the time of compilation this material was perceived to pertainand therefore, through the force of legal opinion, actually did pertainto dedicated widows as well as virgins.77 Unlike the ancient legal practitioner, however, the modern historian must not remain blind to the gulf that separates the middle of the fourth century from the middle of the fth. Among the many shifts that occurred during this period was the emergence of the widows vow, not merely as a matter of personal conscience, but (at least in the minds of some) as a binding oath that implied a new canonical and legal status.
77. See G. Bassanelli Sommariva, Luso delle rubriche da parte dei commissari teodosiani, in Atti dellAccademia Romanistica Costantiniana XIV (Naples: Edizioni scientiche italiane, 2003), 197239 (22930 for discussion of C. Th. 9.2425). As she points out, the rubrics were not purely descriptive; they functioned in part to indicate how earlier legislation was to be understood or applied in the mid-fth century.

166 JOURNAL OF EARLY CHRISTIAN STUDIES

By the 430s, the common opinion may have been that it was criminal to abduct any woman at all, and that it was criminal even to attempt to marry a Christian woman who had taken vowswidows as much as virgins. Nonetheless, after the publication of the Code in 438, there seems to have been a grudging acknowledgement that its fourth-century raptus laws offered at best ambiguous support for what had become the commonsense view. This is evident, for example, in the Breviarys interpretation of C. Th. 9.25.1 and in the appeal made to this text by the council of Tours (see above). But it is especially evident in the legislative activity of Justinian in the middle of the sixth century. The rst edition of the Codex Iustinianus (529), it would seem, contained no recent raptus legislation. Just prior to the publication of the second edition (534), however, Justinian promulgated two lengthy laws on this topic that bear the same date of issue (November 17, 533) and are clear attempts to banish any lingering confusion.78 One of these is devoted solely to the abduction of virgins, widows, and deaconesses who have been dedicated to God (virginum vel viduarum vel diaconissarum quae deo fuerint dedicatae). The other condemns the abduction of all women and especially if they are virgins or widows who have been dedicated to God (et maxime si deo fuerint virgines vel viduae dedicatae).79 The decision to wipe the slate clean, and to issue two new and comprehensive statements, seems a tacit acknowledgment of the fact that the earlier laws were largely ad hoc, partial, and in some cases ambiguous (C. Th. 9.25.1) or textually corrupt (C. Th. 9.25.2). It is not certain, however, whether Justinian and his legal experts realized in 533 that they were in fact issuing the rst civil legislation on the topic that intentionally included dedicated widows as a distinct class of person. Kevin W. Wilkinson is a Postdoctoral Fellow in the Department of Theology at Fordham University

78. C.-Iust. 1.3.53(54), 9.13.1 (Krger 37, 378). On which, see Coleman-Norton, Roman State and Christian Church, 3:113234; Beaucamp, Statut de la femme, 1:11415; L. Desanti, Giustiniano e il ratto, Annali dellUniversit di Ferrara n.s. Sezione 5: Scienze giuridiche 1 (1987): 187201; R. Haase, Justinian I. und der Frauenraub (raptus), Zeitschrift der Savigny-Stiftung fr Rechtsgeschichte (Rom. Abt.) 111 (1994): 45870; Puliatti, La dicotomia vir-mulier, 50529. 79. These laws omit the fact that, in the case of dedicated women, not only abduction but also any attempt to marry was forbidden. Perhaps this element was thought to be adequately covered by C. Th. 9.25.2 = C.-Iust. 1.3.5. In any case, Justinian was explicit about this further restriction in Nov 123.43 (May 1, 546).