Download PDF | Daniel Washburn - Banishment in the Later Roman Empire, 284–476 CE-Routledge (2012).
251 Pages
Introduction
This book offers a reconstruction and interpretation of banishment in the late Roman world. As the Empire regrouped and then split apart, banishment became a fi xture in ecclesiastical and secular politics. In short, it represented an outstanding phenomenon in the days of Diocletian, Constantine, Theodosius, Augustine, and Leo the Great. Yet later Roman banishment is elusive. It is everywhere and nowhere in the sources. Almost all scholars working on late antiquity will immediately recognize ways that their subjects intersect with exile. Despite the topic’s ubiquity, however, scholarship has not examined the subject directly.
The present work addresses that need. It assembles evidence strewn across a multitude of sources in order to explain how this institution operated and what it represented, both to the individuals involved and to their larger society. I am well aware that scholars working on a multitude of late antique topics will, upon examining this book, discover that their beloved heretic, bishop, emperor, or saint has received short shrift. It should be emphasized at the outset that my aim is not to canvass every episode of exile described by the sources in late antiquity (indeed, many of these notations amount to little more than “he was banished”).
My purpose is instead to create a general matrix for understanding the institution itself so that scholars treating individual instances can compare and contrast their materials with banishment’s global patterns. Those interested in late antique Christianity will understand the need for a comprehensive treatment of this pervasive trend; scholars of Roman law and governance can appreciate the need to extend the discussion of exilium beyond the Severan era. The topic itself underscores the necessity of the Mediterranean world for interpreting the early church as well as the indispensability of ecclesiastical sources for understanding continuity and change in later Rome.
I BOUNDARIES AND TOPICS
Chronologically, the present work examines the period from 284 to 476.1 In the year 284, the Empire began to pull itself from the mire of the third century, in large part on the administrative reforms of the emperor Diocletian. Part of his plan for better governance included a reconfiguration of the administrative topography. Earlier, a governor ruled a large province. Now, the provincial governors had smaller territories to manage. Additionally, most governors reported to a vicar, whose diocese comprised several gubernatorial provinces. In turn, the vicars served under a praetorian prefect, of which the empire eventually had four. This restructuring modified the way that the government categorized and ran its territories.2 As a consequence, the change affected the rules of banishment by altering the ranks of officials capable of pronouncing such a sentence and the area where exiles might be sent. The Diocletianicreforms thus supply the fundamentals for the bureaucratic world that surrounds the topic of this study. Furthermore, Diocletian inaugurated a new epoch in its ideology. In contrast to the ancient tradition whereby emperors were at pains to mask the absoluteness of their rule, later emperors emphasized their regal, even divine qualities. Scholars use the terms “Principate” (from princeps, a term used to describe early emperors as “the first” among equals) and “Dominate” (from dominus, which connotes a lord or absolute power) to contrast the political beliefs of the two eras.3 The ancient sources point to Diocletian as the turning point in this progression and credit him with innovations affecting the way that subjects approached him, such as mandated kissing of the imperial purple or performing adoratio, as befi t a god or Persian king.4 Thus the year 284 signals a watershed in terms of administrative organization as well as the representation of and response to political power.
The sweep of this book concludes with the end of the Roman Empire in the West. In 476 the barbarian king Odoacer deposed the last western emperor, named Romulus and known to posterity as Augustulus.5 Though the western Empire had expired, its eastern counterpart lived on. The events of 476 did not revolutionize all Mediterranean societies, but the moment provides the natural breaking point for the study of banishment. After 476, the geographical and administrative scope of banishment both shrank. The regions of the Mediterranean world were too disconnected for authorities in one location to transport off enders to a distant destination.
Pronouncing judgment on remote individuals was even more out of the question. The western lands did not have the layers of government found in earlier centuries and hence did not have the same magistrates to pronounce a sentence or the requisite soldiery to enforce it. While exile continued in an era without Roman administration, it was practiced on an increasingly localized scale. Certainly, examples of banishment continued even after the fall of the western Empire. Eric Fournier has demonstrated the substantial continuities between late Roman treatment of rejected clergy and the tactics adopted by the Vandal King Huneric in North Africa.6 Gregory of Tours, in addition, relates that at the end of the fi fth century, the Goths banished both bishop Volusianus of Tours and his successor, Verus, because these bishops resisted the theological perspective shared by almost all German barbarians. For this reason, the Goths suspected that they wished their territory to pass into the rule of the Franks, the exceptional tribe that did not hold those views.7 Much is opaque in an episode such as Volusianus’s. Nonetheless, if Gregory has transmitted its basic outlines, it and other banishments under the barbarians were modest in their geographic scope. Volusianus moved from Turones (Tours), in northwest Gaul, to Tolosa, in southwest Gaul.8 In the proto-Byzantine Empire, where Rome did continue, individuals such as Flavius Apion also suff ered exile for theological and criminal reasons.9 Ordinarily, these events were confi ned to the eastern Mediterranean.
Under Justinian’s reign, Constantinople’s authority even stretched long enough to expel some Roman senators during a Gothic siege.10 However, those senators were soon brought back, and this moment expressed the ephemeral nature of Justinian’s reconquest of the western Mediterranean. The boundaries of banishment itself pose problems. The Latin language recognized several terms that could signify a form of undesirable relocation, such as fuga and ex(s)ilium. Greek speakers had almost limitless possibilities. Common words which meant “to banish” included ekba/llein 0 , e )/lau /nein, e cori/zein ) , and ori/zein ) ; these stood alongside the verb feu /gein (“to fl ee” or “to go into banishment”). Such terms also carried adjectival and nominal forms as well. The bigger issue is that ancient authors (particularly Greek ones) used these terms so broadly that the terms could refer to any form of relocation that was undesirable, be it penal or voluntary.11 In particular, when an ancient Greek source comments that individuals went into fugh/, in the absence of other information, we would have little way of knowing whether such persons went into a foreign land by their own decision or offi cial decree.
The ancient authors’ underlying conviction seems to be that both those formally sentenced and those whom we would now call “refugees” shared in the experience of exilium or fugh/. In this study, I am interested in intentional forms of banishment, especially those produced by offi cial procedures. Displaced refugees, such as those who fl ed to the southern and eastern portions of the Empire in order to escape from the Vandals, fall outside the limits of my project. 12 The people ejecting these refugees did not imagine themselves to be infl icting a punishment that involved relocation south of the Mediterranean. Likewise, other fugitives, such as Helladius and Ammonius (pagan grammarians and teachers of the ecclesiastical historian Socrates) who vacated Alexandria in the wake of the Serapeum’s destruction, or the bakers of Antioch, who abandoned the city due to the threats of count Icarius, do not make the cut.13 While they certainly would have faced dangerous or uncertain conditions if they had remained, there is little or nothing to suggest that their nemeses aspired to their ejection. Also, it is probably obvious that those who took refuge outside of the Roman Empire are not included in a book on banishment in the later Roman Empire.
These methodological choices have repercussions for the language which I employ. I use “banish/ment” as the word to describe the general concept of this book. The English words “banishment” and “exile” derive from diff erent sources and present alternate diffi culties. The former comes ultimately from the Teutonic bann, a “proclamation commanding or forbidding under threat or penalty,” mediated through late Latin (bannum) and French (ban).14 “Exile” descends from the Latin exilium and refers to the forced removal from a person’s homeland.15 As Chapter 1 will show, exilium carried multiple defi nitions in the Roman Empire, and was in some cases contrasted with other terms of ejection, namely relegatio or deportatio. To avoid confusion, I refrain from using “exile” to describe the general condition of homelessness. To invoke the broad category of having been expelled formally by the later Roman government, I instead prefer “banishment.” I use “exile” as a state of being only when it stands for an example that the ancient sources term exilium. “Banishment” bears no resemblance to Greek or Latin terms and therefore will not inadvertently suggest any of them. However, I fi nd myself obliged to retain the use of “exile” to refer to the person subjected to this punishment; English has no other single equivalent to designate the one banished. Scholars working in various disciplines carry an interest in banishment/ exile (the general concept rather than the Roman institution).
As a result, readers may come to this book with a variety of backgrounds. Realizing that many but not all readers will have a preparation in Greek and Latin, I have attempted to accommodate the needs of both scholars of the ancient world and scholars interested in the experiences of exclusion. Throughout, I have endeavored to convey these ancient languages in ways that suit the specialist and the non-specialist alike. For instance, when a passage in Greek will interest the philologically minded, I have presented it in the original script, but have avoided integrating long Greek passages into the main text. Similarly, I have attempted to off er guidance for locating primary sources in translation when they are not obvious. In most cases, a reader of any academic background would be able to use the bibliography to track down the translated source; only a specialist could wade through Schwartz’s Acta Conciliorum Oecumenicorum. When possible, I have included information in the footnotes referring the reader to the relevant section in a modern translation, such as Richard Price and Michael Gaddis’s The Acts of the Council of Chalcedon, which neither bears the same title as nor uses a numbering system obviously identical to the original work. A fi nal note on the subject of language and terminology: the patterns of ancient banishment pose a predicament for the modern scholar alert to the perils of gender-exclusive language. In the later Roman period, most of the banished and all of the magistrates who sentenced them were male.
I hasten to add that some exiles were female; this trend receives direct attention in Chapter 5, part VI. Much of this book discusses abstract patterns—banishment as the laws imagine it or as historians can reconstruct it. Describing general conditions in inclusive language (for instance, “when an exile retained his or her possessions” or “the eff ects banishment had on her family”) inevitably create the impression that the unknown individuals in question could well have been female. The evidence strongly supports the conclusion that most of its victims were male. Despite the antiquated ring, I therefore use male pronouns for the main participants in the banishment process. I make no such assumptions for other roles in Roman society and avoid exclusive language elsewhere.
II EARLIER ROME: TRENDS AND APPROACHES
A brief survey of the antecedents in earlier Roman history helps to throw the trends of the later Empire into sharper relief. The fi rst chapter explores the diff erences between legal categories in some detail; nevertheless, a minimal understanding of terms is necessary to understand previous scholarly debate. In outline, as Rome shifted from a republic to an empire, its institution exilium evolved from a token of aristocratic privilege to a magisterial punishment. In the Republican period, Roman exilium began as an alternative to punishment, not as a punitive measure itself. Under this option, a person could quit Rome in order to escape an actual penalty. A kindred measure known as aquae et ignis interdictio— the interdiction of fi re and water—developed as a means to ensure that an exile did not return. This step prohibited those in Rome from giving aid to the interdictus. A death warrant within the city, it compelled the exile to get out and stay out. Separately, city magistrates accumulated the power to eject dangerous individuals; this punitive variety of exclusion, relegatio, became the normative type of banishment in the late Republican period. Along with this, deportatio later developed as a more aggressive method of banishment in the early second century.
Deportatio shared with relegatio its compulsory nature, but carried additional disadvantages. For almost two hundred years, scholars have debated the signifi cance of exilium for Roman civilization, though the focus has fallen principally on the earlier periods. Nineteenth-century German scholarship shared a working consensus, grounding its analysis in large part on a specifi c set of evidence.16 First, scholarship emphasized a short passage from the history of Polybius, indicating that when the Roman tribes were in the process of voting to sentence a citizen, the accused could voluntarily fl ee to territories that held a treaty of isopolity with Rome in order to evade this verdict.17 Chiefl y, this scholarly cohort turns to Cicero in order to sleuth out the process of banishment. One paramount Ciceronian passage derives out of the oration, In Defense of Aulus Caecina. 18 There Cicero claims that exilium is a refuge, not a punishment, and that those who avail themselves of it discard their Roman citizenship by virtue of changing their location.
Scholars have since queried these passages with a measure of suspicion. Richard Bauman has argued that Cicero and Polybius do not perfectly agree. Whereas Polybius states clearly that the fl ight into exile could occur only before the trial was complete, Cicero, Bauman believes, implies that the accused could depart into voluntary exile before or after being sentenced.20 Gordon Kelly argues that the possibility to escape into exile was a convention rather than a statutory right.21 Additionally, Kelly disavows the common notion that a Roman citizen’s right to exile was valid only when he obtained refuge in a state that had a treaty of isopolity with Rome. Kelly believes that scholars who hold this view over-read the key passage from Polybius and give it too legal an interpretation. In his estimation, Polybius speaks of a common practice but not the exclusive manner of banishment.22 Scholars over the last fi fty years have pressed further for diachronic shifts in exilic custom and terminology, though in substantially diff erent ways. Ernst Ludwig Grasmück sees a crucial change in the nature of exile with the passing of the Republic into Principate. In the early Empire, deportatio and relegatio became new coercion techniques, signaling a contrast to the traditional role of exilium as a volitional option.
Thus it became a punishment rather than a perk.23 In a recent study, Gordon Kelly makes a compelling case for separating the history of exilium in the Republic into three distinct periods, one from the early Republic down to the Gracchi (for Kelly, down to 123 BCE), the second lasting through the Social War (88 BCE), and the third from the Social War to the death of Julius Caesar (44 BCE).24 In this rubric, changes in Rome’s position in Mediterranean politics infl uenced the particularities of exile, seen most clearly in the areas to which Roman exiles went. The history of exilium is for Kelly the story of the Republic writ small.25 Scholars have disputed the political-theoretical values that surrounded exilium by questioning not just its legal groundwork but the social function as well. Against earlier scholarship, which viewed it as an exercise in exclusion, Giuliano Crifò reads the practice as an expression of solidarity among the aristocracy.26 That is, it strikes Crifò as an illustration of personal liberty rather than as the termination of Romanness.27 Peter Garnsey’s early work shares Crifò’s interest in class basis, but envisions the institution’s eff ect on a larger cross-section of society. He fi nds that the sources attest to examples of such punishments being practiced upon the lower classes.
That such episodes do appear in the sources, he concludes, overthrows the view that only upper-class criminals received this sentence because only they could aff ord to support themselves in exile.28 Grasmück construes the matter diff erently, explaining exilium’s growth as an eff ort by society to curb application of the death penalty. Two causes lay behind this restriction, he believes: a limitation on private revenge and a safeguard against social attrition.29 Grasmück also contends that the shift from a right to a punishment constitutes an ominous change, one that mirrored an increase of defenselessness and the silencing of parrhésia, the forthright free speech philosophers used to address men of power.30 Bauman considers Roman ideals in the realm of political theory in order to elucidate exile’s meaning. He views voluntary exilium as an illustration of the notion of humanitas, “both a civilized attitude towards all people and a cultural background appropriate to that attitude.”31 When, in the last days of the Republic, the concept of exile transformed into a punishment, it shifted its position relative to the balance between humanitas and its antithesis, utilitas publica—the public interest. The new form, compulsory expulsion, now gave expression to both sides of the tension: humanitas demanded that blood not be spilt; utilitas publica required punitive action against the off ender.32 Against Bauman’s notion that humanitas inspired the institution of voluntary exile, Kelly argues that this value had little practical infl uence on Roman aff airs.33 He posits a theory about exile’s meaning based on the social function that it served. This inclination leads him to introduce a diff erent Roman value to use as “the key” for interpreting exile’s cultural background, namely, concordia, which “stressed political harmony among individuals and social classes to ensure the smooth governance of the state.”34 The practice of exilium advanced the notion of concordia, Kelly argues, because it diminished potential confl icts by removing one party. Finally, one contemporary mode of scholarship prioritizes banishment’s discursive dimensions. Here, the emphasis falls on cultural constructions and strategies of selfhood.
In a pioneering work, Jo-Marie Claassen observes in the Latin literature, from Cicero to Boethius, the connections assumed between exile, political impotence, mortality, isolation, and loss of speech.35 Her investigation exposes ways that exiled authors modulate their authorial personae in order to compensate for the powerlessness of banishment.36 Second Sophistic scholar Tim Whitmarsh uses the literature of exile as a diagnostic tool to expose strategies of “cultural identity.”37 He argues that second-century authors used the experience of exile to draw from certain cultural norms and to upend others. In contrast to classical thinkers, Musonius Rufus, Dio Chrysostom, and Favorinus felt that that the entire Mediterranean world, instead of a particular polis, suffi ced to generate a self.38 Furthermore, Whitmarsh identifi es discussions of banishment as “a nodal point where Greek cultural self-representation meets Roman power.”39 Exiled authors transformed their banishment from an expression of social death to a badge of “philosophical success.”40 Finally, a recent volume entitled Writing Exile: The Discourse of Displacement in Greco-Roman Antiquity and Beyond includes the work of several authors investigating the literature of exile (principally in antiquity).
The volume’s editor, Jan Felix Gaertner, articulates one of the book’s core principles when he writes that: [T]he treatment of exile [from any given author] depends not so much on personal experience as on literary, and more generally cultural, canons. The experience of the (real or metaphorical) exile of writers and fi ctitious or historical characters is interpreted and presented within an inherited, but continuously modifi ed, framework of concepts of displacement and wandering, which depends heavily on educational and intellectual traditions.41 In concert with modern points of emphasis, Gaertner and the other contributors unpack the cultural world that sustains, and in turn is modifi ed by, the literature written in or about exile. This methodological approach sees the deepest consequences of banishment in the rhetoric and modes of presentation available to those who depict it.
III THE EVIDENCE: PROBLEMS AND STRATEGIES
Writing about the Roman Republic, Gordon Kelly concedes, “No ancient source provides a detailed treatment of the practice or development of exilium. As a result, brief descriptions, summary remarks, and other scraps of information from disparate sources must be collected, interpreted, and fi tted together to form a coherent picture of this phenomenon.”42 His words apply with equal force to the later Empire. For that era, very little, and perhaps no, information about banishment comes to us in a way that coheres easily with modern agendas and questions. The types of sources are manifold, each with particular diffi culties. Moreover, the sum total of evidence does not create an even depiction of all aspects of banishment. Certain moments in the process and types of individuals remain especially shadowy. Creating a coherent portrait of banishment requires the historian to locate hints and then conjecture about their general application.
Even if we can make out a general trend in this time period, it is certainly the case that some instances do not fi t with the overarching pattern. In those cases too, the historian must decide what needs to be rethought: the pattern or the exception. Throughout, I have sought to identify those places where the evidence becomes particularly thin and necessitates guesswork. In this introductory section, I wish to acquaint readers with the categories of evidence available to the student of banishment, the information that the sources do and do not transmit, and my strategies for interpreting the extant evidence. In many instances, alternate readings could be possible. If readers do not fi nd themselves in agreement with my hermeneutical tactics, they may at least fi nd those tactics lucid and internally consistent. The essential problem bedeviling the study of banishment is that the sources that contain relevant evidence fall into two categories: those that discuss the legal principles which could hypothetically be drawn upon, but not specifi c implementations, and those that describe an actual case, but not the legal categories under which it fell.
The first type of source lays down guidelines that might or might not have been executed. Examples of the second type of source (“extra-legal,” “narrative,” or “historical”) tend to depict acts of banishment in a virtual legal vacuum. From this, I surmise that the average observer, even a literate and interested one, operated in near total ignorance about the distinctions. Of course, such a person might suddenly become very interested if he himself were banished and tried to figure out, say, how much of his wealth his family could retain. Most individuals commenting on banishment were struck by the raw exercise of power, not its rationale. At times, we can make deductions from one type of source to another. Frequently, we cannot. Because the extra-legal sources describe the kinds of encounters that do not fall unmistakably into the rubric created by the legal ones, we often cannot know for certain what justifi cations lay behind a given instance or, conversely, whether a legal abstraction generated actual cases. Moreover, legal and extra-legal documents present unique challenges. Of the various texts falling under the “legal” heading, paramount is the Theodosian Code.
This compilation of laws issued by emperors corresponds loosely with the period under review here. At its best, the Code can expose us to moments when the imperial courtrefl ected on the kinds of off ences that could lead to banishment, the correct legal response, and the appropriate magistrate to handle the aff air. While the Code ordinarily speaks to general conditions, it very occasionally contains a law pertaining to a specifi c case. There are, however, dizzying complexities that inhere in this source, some of which confront any historian combing its pages, others of which pertain specifi cally to the kinds of questions I wish to submit it to. In general, a law (constitutio) as we now read it is the product of a vast and complicated procedure, any of whose steps would be invisible to us but infl uential on the fi nal outcome.44 While in theory imperial constitutiones could be one of several forms of communication, the types common in late antiquity and preserved in the Code were epistulae (letters sent to magistrates) and edicta (general pronouncements made to the public rather that to an offi cial).45 The vast majority of constitutions in the Theodosian Code are examples of the fi rst type of imperial communication. While the laws frequently read as if they represent the emperor’s own agenda, the initiative for a constitution could come from the emperor (and his court) promulgating the law or from the offi cial receiving it. In some cases, an emperor might legislate unsolicited. On the other hand, an offi cial such as a praetorian prefect could propose a law in a text known as a suggestio (“proposal”), even if that data is not in evidence in the law as it appears in the Code.46 The suggestio, however, could be in response to an imperial request for information, in which case the impetus would still lay with the emperor, not the lower offi cial.47 This proposal was then discussed, perhaps by the emperor’s consistory (the imperial council) or by a larger group that could have included senators and palatine ministers.48 Next, an offi cer known as the quaestor composed the text of the law. This draft then received discussion, again, by either the consistory or the larger group. When the draft was approved, it was read out before the emperor, who signed the text, thereby making it law.
Thus the text of the law might receive infl uence from several sources: the suggestio, the quaestor’s draft, and the alterations from group discussion.49 From this law, another high-level palatine offi cial, the magister memoriae, produced letters to administrators which incorporated the approved law but which could also add special instructions as well.50 The provincial administrators who received these letters then posted them in public so that interested parties might learn of them.51 In sum, the fi nal text might be the work of many hands; alternatively, it might be a rubberstamped version of the original suggestio. This system generated many such laws. Eventually, in the middle of the fi fth century the emperor Theodosius II initiated a project to collect and organize them (a fi rst, aborted attempt was made in the 420s, a second, successful endeavor in the 430s). Theodosius commissioned a body of scribes to collect laws from the time of Constantine (313) to his day (438).52 He tasked the scribes not to gather up every law, but rather only those which possessed the quality of generalitas (general application for similar future cases).53 However, it is not the case that the “general” constitutions found in the Code were free from external stimuli. In fact, in many if not most cases, the law came about in part because of concerns from magistrates or citizens, though the Theodosian scribes removed the references to particular cases from the extant laws.54 In addition to collecting, the scribes were to group the laws into similar categories and to trim from the laws any unnecessary verbiage. The principle of the scribes’ task was to excise only that material that was inessential. These, then, were the processes by which a proposition became a law and a law became part of the Theodosian Code. But what of the relationship between the Code as it was originally compiled and the manuscripts that circulate in modern study? Of the sixteen books of the Code, the fi rst fi ve must be heavily reconstructed, largely on the basis of the Lex Romana Visigothorum (a Germanic code of 506 also known as Breviarium Alaricianum) and the Codex Justinianus (the Code of Justinian), a sixth-century compendium of earlier codes, including the Theodosian, and recent laws.55 Thus for nearly a third of the Code, the text in modern editions is not based on the text produced by the Theodosian scribes, but rather upon texts that sought to extract elements of the original text for new purposes. Alongside these intricacies stand further historical uncertainties.
The position of the quaestor, so central to the entire process, evolved signifi cantly in this period, but in ways often obscured from the historical record. In the early Empire, the quaestor’s function was to read the emperor’s letters to the Senate.56 In the later period, it became to compose the language of the laws.57 One later source claims that Constantine was the emperor responsible for giving this post its new shape, but no other evidence confi rms this claim.58 Rather, the fi rst attestation of the quaestor operating in this new sense comes from the reign of Constantine’s son, Constantius.59 It may well be the case that the position of the quaestor evolved under Constantine, yet we cannot be certain. In any event, the development of this offi ce was most likely a gradual one in keeping with the rise of the palatine offi cials.60 Scholars disagree about how much the Code’s constitutions express the mind of the quaestor. Some believe that the quaestor held responsibility for the law’s tone, and occasionally its content.61 Others hold that the laws of the Code were generated in a process that allowed so many infl uences that we cannot be sure that a given passage is from the quaestor’s hand.62 It is important to note that, whatever the actual authorship may have been, contemporaries understood the tone of a law as that of the emperor.63 The laws generated a type of propaganda that helped to create the emperor’s public persona. In addition, an emperor’s degree of agency in the laws might well have varied according to his personality and vitality, with one such as Constantine likely bearing much of the responsibility.64 This constitution-making process resulted in instructions enjoining magistrates to act in certain circumstances. We have no way of knowing, after the law made its way to the relevant magistrate, whether future magistrates did as bade. Indeed, we cannot know whether the crimes worried over in the law ever took place again, or in some cases whether they even occurred in the fi rst place. After all, while real and ongoing trends must have occasioned many laws,
it remains possible that rhetorical, unrealistic, or preemptive thinking led to others. When a law that speaks out harshly against an off ending phenomenon, it quite likely does so because that phenomenon had become a genuine concern for the magistrates or emperors and not because the imperial bureaucracy seized upon a fi ctional problem in order to promote an image of itself as capable or concerned. The diffi culty is that we have no way of knowing. There exist other forms of imperial legislation from this period not contained in the Theodosian Code. In a few instances, laws have come down to us in other collections, thus adding to the total of evidence and permitting some perspective on the degree of alteration. The Sirmondian Constitutions, a group of sixteen laws from the same period, provides the fullest comparison for the texts of the Code. Ten of the Sirmondian Constitutions represent the unedited versions of the laws truncated by Theodosius’s scribes.65 Nevertheless, the core problems of authorship persist, even if the level of redaction is reduced. The Code of Justinian provides additional coverage as it contains material from a broader chronological range, from the second century through the sixth.66 For the most part, its laws related to banishment also arise in the Theodosian Code. However, Justinian’s Code also contains imperial enactments from the pre-Constantinian era.67 These help to illuminate the role of banishment prior to and at the beginning of the later Empire. Nonetheless, the Theodosian Code remains the most abundant legal source for this period. Its laws are potentially derived from an unknown originator, drafted and reworked by a committee, shaped by an editorial magistrate whose position evolved imperceptibly over time, conceivably ignored in actual application and even generated in response to crimes that never occurred in the fi rst place, redacted later by scribes, and perhaps heavily reconstructed from a dodgy textual transmission. Yet not all hope is lost. Awareness of what the evidence does and does not reveal and the cautious conjecture about the unknown elements can render the imperial constitutions, with all of their diffi culties, an indispensable resource in the study of banishment.
Though the merits and meaning of any particular law surely must vary according to the example at hand, I do hold general judgments concerning the qualities of the evidence from these sources. The core question is how to extrapolate social history from imperial constitutions generally and those found in the Theodosian Code in particular. My approach views the laws as refl ecting, rather than creating, social norms. Recognizing that the constitutions still contain “rhetorical concerns” (elements designed to create an aura for the regime issuing them rather than to achieve any concrete eff ect), my analysis presumes that the laws usually describe things that did occur or things that could possibly occur in the social circumstances which they envision. I presume that most of the laws respond to genuine developments, or at the very least they conceive of trends that struck contemporaries as plausible. In most cases I believe that the laws make the most historical sense as the refl ections of practices at the time and governmental interest in their consequences for the Empire’s infrastructure. In terms of authorship, while the laws speak as if they expressed the emperors’ wishes and interests, their content often arose as the product of the process. This means that enactments frequently bear witness to a collective concern, even if they ratify only one answer to that problem. Some imperial personalities (such as Constantine’s) shine through the legislation, but more often the laws, it seems to me, reveal a preoccupation shared by the imperial court, a lower offi cial, and quite likely the citizens aff ected by its ruling. At a minimum, a constitution issued must accord with the agenda of someone in the imperial court well enough that the person, or persons, would approve it. If it did not cohere with the agenda of the imperial government at all, then such a proposal should not have become law. A law, then, that originated as a suggestio and grew into its fi nal form under an imperial committee may express nothing of the actual emperor’s mind, but it would reveal the topics and attitudes of other, often anonymous, participants in the process. In short, we may not know whose perspective a law contains, but we can still deduce that laws disclose someone’s views. Of course, not only do social realities aff ect legislation, but legislation can also steer social realities. Once an imperial court issued a law, that law could then infl uence future cases. I do not deny that this regularly happened, nor I do not assume that it always did. Magistrates could interpret their instructions selectively, creating outcomes at odds with the ideals laid out in the imperial enactment.68
Moreover, Roman justice depended more on public accusation for crimes already committed than a robust policing system to ward off future infractions.69 This fact means that even when a magistrate faithfully published an imperial instruction with the sincere intent to enforce it, he remained dependent on private individuals to bring infractions to court. In terms of the geographical scope of imperial legislation, I attach the likelihood of wider application and infl uence to laws issued before 395. To that point, laws issued by one emperor (at least in theory) spoke for the entire college of emperors and therefore were valid throughout the realm.70 After the death of Theodosius I, the division of the Empire, which had been building for decades, became inescapable and more formalized. Laws throughout this period bore the names of both the eastern and the western emperors; however, the two spheres did not automatically adopt the other’s legislation.71 Thus, fi fth-century constitutions have the possibility to reveal aff airs in their half of the Mediterranean, but unless they have analogs from the alternate half, probably do not suggest anything about the other region. In other words, we can be fairly certain that laws which came after 395 could only have infl uenced aff airs in the portion of the Empire, East or West, where they were created. Ultimately, while I certainly allow that laws helped to mold the Roman world, my argument does not turn on the execution of the laws known to us only in the abstract. There remain questions of what role the quaestor played, and what rhetorical purposes the laws served. Particularly in Chapter 2, part III, I scrutinize the language of the laws in order to determine how authorities regarded the function or meaning of punishment. Cherry-picking a few scattered references could lead to a distorted picture in this project. I have sought to attend closely to what the laws say and how they say it, but to attach greater weight to tendencies which recur extensively. A persistent trend can suggest the prevalence of a phenomenon existent beyond the imperial court; particularly when notions expressed in laws accord with the outlook found in other literature, it suggests that legal and non-legal authors were channeling a broader movement.
Extra-legal sources represent the other side of the picture. Although each document contains unique complications, one overarching diffi culty appears in many of the sources from the later Roman Empire: they were written by Christian authors whose interests do not coincide with those of a modern historian. This fact has implications on multiple levels. On the fi rst, it means that the data as the ancient authors knew it took place within a specifi c context, often a doctrinal controversy, which may bear signifi cant diff erences from examples arising in non-church aff airs. Church literature focused on the events that mattered to its history, but not necessarily the ones that best typifi ed the time period. Historical sources for the fourth century (and beyond) grow increasingly Christian; in turn, these Christian sources grow increasingly interested in depicting the struggles and eventual triumph of their religion or their religious party through the historical record. For every Ammianus Marcellinus, there is a score of ecclesiastical historians. Thus readers might well come away with the impression that nearly all exiles in the later Empire were bishops; this supposition, however, results from the fact that most of the authors describing banishment wrote primarily because of their interest in church history. A reconstruction of banishment must utilize ecclesiastical evidence as the richest vein from the era without taking that particular form of evidence as normative for all types of banishment. My approach assumes that the administrative framework used to banish clergymen was much the same as that which would have been used in other instances. Conversely, in Chapter 2, parts II and III, I lay out what I see as the purpose of and social vision at work in the banishing of divergent Christian groups.
This is done in order to establish the extent to which banishment operated uniquely in those cases. I argue that the expulsion of sectarians diff ered from other groups in the later Empire in degree, not kind, but stood apart from religious ejection in earlier Roman history. Secondly, the authors’ motives for writing arose out of theological or polemical concerns. Not only does this fact create concerns over a source’s reliability, it means that the very categories that a thinker uses to describe banishment may be drawn from literary or religious tropes. When readers of bishop Athanasius encounter the claim that the duke Syrianus endeavored to arrest him with a host of over fi ve thousand soldiers, historical instinct suspects that the fi gure must be approximate, if not infl ated (How would Athanasius know how many soldiers surrounded his church? Did he count them?).72 Leaving aside the issue of exactitude, we can still use Athanasius’s witness to ascertain that military offi cers, such as a duke, would have come supported by a substantial detail in order to apprehend a popular metropolitan bishop. But what useful historical data resides in Athanasius’s assertion that the emperor Constantius’s penchant for banishing bishops made him crueler than Ahab, Pharaoh, and Pontius Pilate?73 The latter account in fact tells us next to nothing about Constantius’s motivations, techniques, or character.74 It does, however, indicate the ways that bishops in the fourth century explained their travails. Importantly, it also reveals a mentality that underlies much of the evidence available to us, at various levels of explicitness. Devices including biblical motifs, a confl ict between depravity and righteousness, and political resistance exercised a powerful infl uence over the thinking of the authors on whose work this reconstruction depends.
That Christian accounts of banishment dwell extensively on conceits such as these and not at all on legal specifics certainly lends support to Gaertner’s claim that any literary depiction of exile hinged more on a writer’s literary and cultural expectations than on the details of his sentence. Our sources may describe events that did truly happen, but they never do so simply because those things happened. The descriptions invariably sit within a larger agenda, typically to extol and exonerate one faction and to denigrate the opposition. In aggregate, the ecclesiastical materials may create powerful distortions on the subject of banishment.
A historian of late antique Christianity must then fi nd ways to proceed despite those obstacles. My approach assumes that “rhetorical” does not mean “worthless.” The obstacles themselves constitute an important piece of data. What seems to be historical narrative often contains as much exhortation as it does a record of events. The propagandistic elements indicate part of the tussle occurring between various Christian camps. The struggle took place not only over what religious outcomes ensued from councils and magistrates but over whose narrative of those outcomes would endure. We see in the ecclesiastical sources a twofold confl ict: to shape events and to shape the memory of events.
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