Solomon Grayzel, The Jews and Roman Law

The Jews and Roman Law
Author(s): Solomon Grayzel

Source: The Jewish Quarterly Review, Vol. 59, No. 2 (Oct., 1968), pp. 93-117
Published by: University of Pennsylvania Press
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THE JEWS AND ROMAN LAW
BY SOLOMON GRAYZEL, Dropsie College
THERE IS A WIDE-SPREAD ASSUMPTION that the respect and

authority which Roman Law enjoyed during the Middle Ages
preserved and protected the Jews of Europe. Roman Law, so
to speak, saved the Jewish people just as Jewish Law saved
the Jewish religion. A discussion of the history of Jewish-
Christian relations therefore must begin with an evaluation
of the content and effectiveness of Roman Law with regard
to the Jews. It is essential to see whether, to what extent, and
in what respects the legal legacy of Rome was utilized by
medieval legislators, both secular and ecclesiastical.
Among the modern scholars who have touched upon this
problem, two have discussed it most helpfully: Jean Juster
in his Les Juifs dans l'Empire Romain (Paris, I9I4), and, more
briefly, Peter Browe in an article entitled "Die Judenge-
setzgebung Justinians," (in volume VIII of the Analecta
Gregoriana, Rome, I935). 1 Both pointed out the differences
in the legislation between pagan Rome and Christian Rome, as
well as the differences that developed in the later Empire as
Christianity gained in strength and influence. Juster was
interested in describing what happened and let the details
speak for themselves. Browe, as an apologist for Christianity,
was more concerned with the question why it happened, and
1 Among those who have dealt with the entire subject, or with some
significant part of it, are: Dora Askowith, Toleration a'nd Persecution
of the Jews in the Roman Empire (New York, I9I5); Solomon Katz,
The Jews in the Visigothic a'nd Fra'nkish Kingdoms of Spain a'nd Gaul
(Cambridge, Mass., I937); S. W. Baron, A Social a'nd Religious History
of the Jews (2nd edition, New York and Philadelphia, 1952 -), esp.
vol. II, passim; B. Blumenkranz, Juifs et Chre'tiens da'ns le Monde
occidentale (Paris, ig60); H. Vogelstein und P. Rieger, Geschichte der
juden in Rom (Berlin, i896); James Everett Seaver, Persecution of
the Jews in the Roman Empire, 300-425 (U. of Kansas, I952).
6
94 THE JEWISH QUARTERLY REVIEW
in his concluding remarks argues that the Jews brought the

severity of the laws down on themselves.2 Neither Juster nor
Browe carried the discussion into the Middle Ages, except for
an occasional reference; and neither therefore assessed the
limits which the tradition of Roman Law set upon Jewish life.
For the pagan period, that is, down to about 3I2, the source
material generally used are Josephus and such pagan authors
as Galen, Tacitus, Dio Cassius, and statements made by
Christian authors before or after that crucial date. These
last have been variously interpreted, usually in accordance
with the beliefs of the interpreter. More solid material is
available for the early centuries of the Christian era, namely,
the two collections of laws: The Theodosian Code and the
Justinian Code, along with their supplements.3 Both are
arranged topically, so that in general the laws concerning the
Jews are grouped with those for pagans and heretics.4 Never-
theless, some laws concerning the Jews may be found in the
midst of legislation dealing with property, courts of law, and
civic offices. In line with the spirit of the age, the language of
both codes when speaking of the Jews is, from our point of
view, unrestrained. The pagans had considered Judaism a
cold religion; they spoke of circumcision as barbarous.5 The
Christian emperors adopted and improved on these sentiments,
referring to Judaism as "an unworthy superstition," a "turpi-
tude," and to the Jews as "a feral sect," 6 and the like.
2 The reasons which Father Browe offers are of all kinds: the
absolutism of the emperors, economic competition between Jews and
non-Jews, Jewish enmity toward Christianity, Jewish pride (Hochmut),
the contempt which Jews showed for the laws of the State, pushiness
(Aufdringlichkeit), religious exclusiveness, ecnouragement of heretics
and pagans and, above all, guilt for the crucifixion.
3 Th. Mommsen et Paul M. Meyer, Theodosia'ni libri XVI... (Ber-
lin, 1904-5) [CTh]. Th. Mommsen u. Paulus Krueger, Codex Juris
Civilis (Berlin, I928) [CJC]. Clyde Pharr, The Theodosian Code (Prince-
ton, 1952).
4 In CTh XVI.8; in CJC mostly in I.
5 Cf. Juster, I, 44 f. n. 6.
6 CTh XII. 1.157, I58; XVI. 8, 6, 8, I4.
JEWS AND ROMAN LAW-GRAYZEL 95
There are also important differences between the two codes.

The Justinian Code is more selective, more inclusive and
more stringent. The two codes were issued a century apart:
the Theodesian Code in 438, and Justinian in 534. The second
therefore includes legislation ordered by the emperors in the
course of the intervening century, the novellae issued by
Theodosius II and his successors. Its greater stringency is
due to the fact that Church influence had grown stronger in
the meantime, while the power of the Jews in the Empire had
weakened considerably.
With regard to the Jews, neither code openly represents
pagan Rome; except for an occasional reference to their
pagan predecessors, it is as though there had been no conti-
nuity between the two eras of the Empire. It is none the less
striking that the codes do not use the phrase that Judaism
was "a permitted religion." Closest to it is a negative state-
ment by Theodosius I, dated 393, which reads, "It is suffi-
ciently established that the sect of the Jews is forbidden by
no law." I This harks back to the generally favorable position
which Judaism enjoyed since the latter days of the Second
Commonwealth, a position which Emperor Claudius affirmed
for the Jews of Alexandria and which even the Flavian em-
perors maintained despite the rebellion in 66-7I.
In recent years, doubts have been raised about the religious
I CTh XVI. 8. 9: Judaeorum sectam nulla lege prohibitam satis

constat. James Parkes, Conflict of the Church a'nd the Sy'nagogue, p. 8,
asserts that the Jews of Rome constituted a collegium ("fraternity")
rather than a religio, and that they could use their own rites by virtue
of this collegial status. But the term collegium appears to have applied
to the organized synagogues, or the community, rather than to the
religion. The general tolerance of the Jews in the pagan Empire, ever
since the days of Julius Caesar, like the imposition upon them of the
fiscus Judaicus later, derived from their being a religious group, not
ethnic, national, or collegial. The attitude was reversed by Christian
Rome which could not admit the possibility of another religion. See
the interesting presentation by S. Zeitlin, "Judaism as a Religion,"
in JQR, 34 (Oct. I943), 243 ff. The phrase religio licita was first used by
Tertullian (Apologia, 2i), at the beginning of the 3rd century, and had
no official connotation.
freedom enjoyed by the Jews even of the pagan Empire after

the Bar Kokhba rebellion, whether it was really as complete
and uninterrupted as has been supposed. Judaism presented
no less a problem to the pagan civilization than did Christi-
anity, and efforts were made to contain it. 8 Thus Hadrian
forbade circumcision; and even when Antoninus Pius gave
permission to restore the rite, it appears still to have been
limited to the sons of Jews and could not be practised on pagans,
a decision which Septimius Severus reaffirmed. 9 One can
readily imagine how seriously such a decree interfered with
Jewish conversionist propaganda.
There is no need, in this connection, to go into the question
whether and to what extent the Jews suffered persecution
along with the Christians in the days of pagan Rome,'0
especially during the great persecutions by Decius (c. 250)
and by Diocletian (c. 300). It is enough for our purpose to
point out that the prohibition of circumcising non-Jews was
8 Cf. W. H. C. Frend, "The Persecutions: Some links between
Judaism and the Early Church, " in Journal of Ecclesiastical History, I X
(April, 1958), I4I-I58, esp. p. I42.
W Whatever the exact wording of Severus' edict may have been, the
result was the prohibition of circumcision. Cf. Scriptores Historiae
Augustae, Loeb Classics, I, 408: Judaeos fieri sub gravi poena vetuit.
For a more specific statement see Sententiae Pauli, V. 22. 3-4;P. F.
Girard, "Sentences de Paul," in Textes de droit romain, II, 377-452,
esp. 444 ff. (Paris, I923). Cf. Juster, I, 226, 267, 418 f. n. 3.
10 Cf. Yitzhak Baer, "Israel, the Christian Church and the Roman
Empire," in Scripta Hierosolymitana, VII (I96I, pp. 79-I49), esp.
ii8 ff.; also his Hebrew article on the same subject in Zion, XXI
(1956), I-49, which Jacob Katz, in his Exclusiveness and Tolerance,
p. 75 n. 5, says he found convincing. Parkes, Conflict, pp. 250 ff.,
agrees that the Jews suffered persecution, but explains this by the
threat which repeated Jewish uprisings posed for pagan Rome. Baer
goes far beyond this by pointing out that pagan Rome feared the
influence of Judaism no less than that of Christianity. In this con-
nection he discusses some veiled talmudic references. Rome's efforts
to make Judaism unpopular may also be seen in the extension and
maintenance of the fiscus Judaicus on circumcised and practicing
Jews till near the end of the pagan period. It may, indeed, have con-
tinued to the time of Julian, though it is hard to see why Julian's
Christian predecessors should have continued a tax for the benefit of
paganism. Cf. Juster II, 286.
maintained, though it could not possibly have been enforced

strictly, that Jerusalem remained closed to Jews, and that no
attempt was made to rebuild the Temple. Julian's promise to
rebuild came in post-pagan times and was made to annoy the
Christians rather than to please the Jews. Nevertheless, when
the age of persecution was terminated by the Edict of Toler-
ation (3W2), the Jews enjoyed considerable rights. They could

erect synagogues, observe their Sabbaths and holidays, and
practice their religion openly. They were excused from military
service, since that might entail the violation of their Sabbath
and the dietary laws." They were excused from sacrificing to
the gods, and needed only to pray for the welfare of the
emperor and the Empire. They could-engage in the business
of buying and selling slaves and in any other type of com-
merce. They could hold office. In many instances, they could
resort to their own laws in litigation, and they could take an
oath in their own fashion. Finally, they could collect money
all over the Empire for the support of the Patriarchate.
Deliberate efforts to destroy these aspects of their autonomy
began with Constantine's establishment of Christianity as
the dominant religion and affected ever widening areas of
Jewish life.12 As time went on, except for the very brief
period of Julian the Apostate, the anti-Jewish laws became
more inclusive and sharper, although there was a certain
amount of vacillation. Restrictive measures extended into
the personal, social and economic life of the Jews within the
Empire. There was every evidence of a clash between two
conflicting attitudes: the one inherited from pagan times,
11 Jerome, in his commentary on Isaiah 3.2 (Patrologia Latina,

XXIV, col. 59), twits the Jews on their loss of military bearing as a
result of their not being permitted to bear arms. But there were Jews
serving in the Roman armies to the end of the 4th century, though they
were excused from serving if they so desired. The number of such sol-
diers, or men serving the military in non-combattant posts, alarmed
the Church, and it made efforts to exclude them. Cf. CTh XVI.8.24;
also Juster, II, 267 ff.; Parkes, Conflict, p. io.
12 Seaver, op. cit., is devoted to the question of the Church's in-
fluence on imperial legislation.
that Judaism was nowhere prohibited; and the other, initi-

ated by Constantine himself, that only those who worship
God in the proper manner may enjoy privileges enjoyed by
Catholics.'3 It is well to take note of these changes and
vacillations of policy and to attempt to explain them.
We begin with the synagogue. There was no question about
its protection under paganism. When Calixtus, subsequently
elected Bishop of Rome (Pope, 2I-222), disturbed a syna-
gogue service in Rome, the Jews complained to the prefect
of the city and he was punished for it.'4 But as early as 3I5,
Constantine spoke of the synagogue as a conciliabulum,'5 a
pejorative term which Plautus had used in the sense of
"brothel"; but then Constantine was a rude soldier and such
terms flowed easily from his tongue. Protection for the
synagogues continued to be urged in both the Theodosian
and the Justinian Codes.16 The contemporary attitude of the
Church, however, came prominently to the fore in the well-
known expression of it by Bishop Ambrose in 388, in con-
nection with the destruction by fire of the synagogue at
Callinicum. Emperor Theodosius I had ordered the local
bishop to have the synagogue rebuilt at the expense of the
Church. Ambrose expressed his horror in a long letter to the
emperor in which he accused him of religious disloyalty in
that he would rob Christians for the sake of Jews, and threat-
ened him with the loss of salvation.'7 Ambrose won this ar-
gument, and the previous order was rescinded. Yet the em-
peror, for his part, continued ordering that synagogue
gatherings shall not be disturbed and that the buildings shall
13 CJC I.5.I Cf. Browe, p. I38 f. It has been doubted that this
general curtailment of rights and privileges included the Jews, since
they are not specifically mentioned. Nevertheless, the attitude was
there.
14 Browe, p. io n. 5, quoting Hyppolytus' Philosophumena IX, c. I2.
1-1 CTh XVI.8. I.
16 For references to the CTh see the following notes; CJC I.9.4,I4,
based on laws of the 4th century.
17 Ambrose's letter in PL, XVI, col. II48 ff.; cf. Juster, I, 75 f.
not be burned down; attacks on them must be punished

severely."8 His son, Theodosius II, repeated the warning in
4I2 and again probably in 4i8.19 But in 423, in the same con-
nection, he made two important modifications: i) that syna-
gogue buildings, if already consecrated to Christian worship,
must be replaced by other buildings, and 2) that no new
synagogues may be built, and that, in replacing destroyed
ones, Jews must not go beyond the form and size of the old
building, while old buildings may not be enlarged.20
The reason behind the repeated references to the synagogue
is clear. For some decades, the synagogues in the Empire had
been under attack. One well-known illustration is the de-
struction of the Jewish community of Alexandria in 425 by
rioting led by Bishop Cyril. Another illustration of about the
same time is the life of the Syrian monk Barshalma (or
Barsauma).21 He gathered a small force of like-minded monks
and moved through Palestine burning temples and synagogues.
Among the Christians, his actions earned for him the repu-
tation of being a holy man. His reputation among the rest of
the population was something less than that. Whether or not
Emperor Theodosius' surrender to Bishop Ambrose set the
stage for these disorders, it remains clear that the interests
of the Church and of the State were already in serious con-
flict, that the Church was resorting to direct action, and that
the State was ready to compromise on the meaning of its
protection of Judaism. When the Jews protested, in 423,
18 CTh XVI.8.9 (in 393) and I2 (in 397).

19 CTh XVI.8.2o, 2i.
20 CTh XVI.8.25, repeated a few months later (ibid., 27, reaffirmed
in the Theodosian novella 3(3) in 439. In 415 the Patriarch Gamaliel VI
had incurred the emperor's wrath by having a new synagogue erected.
Theodosius deprived him of some honorary titles and warned him to
have the synagogue destroyed and not to dare build others (CTh.8.22).
Justinian's novella 131 ordained that newly-erected synagogues be
subject to confiscation for the benefit of the Church.
21 Fran9ois Nau, "Deux episodes de l'histoire juive sous Theodose II
(423 et 438) d'apres la vie de Barsaume le Syrien," in REJ, 83 (1927),
I84-206.
IOO THE JEWISH QUARTERLY REVIEW
perhaps in connection with some of the depredations of

Barshalma, the Emperor Theodosius II issued another edict.22
It began by reminding the Christians that he had been a
defender of the Church, and goes on once more to forbid in-
juring or destroying synagogues; he concludes by reminding
the Jews to avoid being accused of injuring Christianity by
missionizing among Christians. Whether the last statement
reflected a fact or was merely one of the justifications often
used by the rioters must remain a matter of personal judg-
ment.23
Attacks on and burning of synagogues did not stop. Theo-
doric the Ostrogoth had to contend with a number of such
violations of public order in Italy at the beginning of the 6th
century. Moreover, he felt bound by the Theodosian legis-
lation so that, when the Jews of Genoa asked permission to
repair their synagogue which was in ruins, he warned them, on
pain of a huge fine, against extending or beautifying it.24 The
Justinian Code, a few decades later, while only hinting at
protecting synagogues against attack, declared them un-
available for the quartering of troops; 25 it also prohibited the
erection of new synagogues and the extension of old ones.
A few references reveal how this attitude toward the syna-
gogue as an institutional building expressed itself during the
early Middle Ages. Clearly, new synagogues continued to be
built in various parts of Europe, otherwise Jewish communal
and religious life would have been impossible. It is likely that
in each case permission had to be obtained from the govern-
ment authorities and that it was readily granted. It is also likely
that these synagogues were not pretentious in appearance and
22 CTh XVI.8.26: "The Jews shall know, in response to their

pitiable supplications. . . "
23 Browe, p. I I6, excuses the situation with the remark that the
Jews did the like where they had the power. He mentions no authentic-
ated incidents.
24 S. Grayzel, "The Papal Bull Sicut Judaeis," in Studies and
Essays in Honor of Abraham A. Neuman, p. 246.
25 CJC I.9.4 and i8.
JEWS AND ROMAN LAW-GRAYZEL IOI
that most of them were no more than ordinary houses set aside
for the purpose. This can be gleaned from a letter which Pope
Gregory I, at the beginning of his pontificate (59I) sent to the
Bishop of Terracina in northern Italy. The bishop had expelled
the Jews from their synagogue meeting-place and, when they
moved to another, ordered them out of that one as well. The
Pope was displeased with these repeated annoyances.26 Several
attempts at forced baptism were made at about that time,27 and
the Jews presumably resorted to secret meeting-places for wor-
ship. Several centuries later, Charles the Bald, grandson of
Charlemagne, refused outright to apply Justinian's law against
synagogues; and he thereby incurred the wrath of Agobard,
the zealous Bishop of Lyons.28
It thus appears that, on the whole, the royal authorities of
the early Middle Ages failed to apply the Justinian law. A
change in tone, in this as in other respects, becomes noticeable
in the I2th and I3th centuries. Pope Innocent III, in I204,
commended Philip Augustus of France for having encouraged
the turning of a synagogue into a church. The powerful Pope
likewise complained that in Sens the Jews had dared erect
a synagogue which topped a neighboring church-it must
have been built on a hill, since Jews were not given to build-
ing towered and steepled synagogues-and he further ob-
jected to the synagogue's proximity to the church, so that
their customary loud praying interfered with the church
services.29
Apart from the synagogue as an institution, Justinian

legislated on its internal workings. He renewed an edict of
408 against the observance of Purim by means of hanging an
26 MGH, Reg. Gregorii I, I.34 (March 591).

27 Cf. Blumenkranz, op. cit., p. 105.
28 Ibid., p. 313 nf. 86.
29 Grayzel, The Church and the Jews in the XIIIth Century (Phila-
delphia, 1933 and I965), nos. I3 and 14, pp. I04-7. For similar action
by Pope Alexander III a generation earlier, see Stern Urkundliche
Beitraege (supplement) p. 23, no. i88 n. 3.
I02 THE JEWISH QUARTERLY REVIEW
effigy of Haman.30 The implication is that the Jews intention-

ally hung the effigy on a cross, an action understandably
interpreted as a mockery of Christianity, and perhaps even
so intended. There is a case on record where Justinian went
very much farther, completely forbidding the practice of
Judaism and ordering all synagogues converted into churches.31
But this was limited to Northern Africa and connected with
the conquest by Belisarius. It could not have been of long
duration, even if the order was really possible of enforcement.
If true, the most serious attempt at interference with Judaism
was the one mentioned, not in the Justinian Code, but by
Procopius in his Anecdota. He says that Justinian forbade the
Jews to observe the Passover when it preceded Easter, so that
many Jews were brought up on charges of disobeying the
emperor and were heavily fined.32 It may well be that such
an order was issued; but it could not have been of lasting
effect and, in any event, must have been aimed ultimately at
the Quatrodecimani rather that the Jews themselves.
Another of Justinian's edicts had serious repercussions in
his own day and serious echoes centuries thereafter. His
Novella I46, issued in 552/3, tells the interesting story that
Jews of certain unspecified communities were engaged in a
dispute about the language in which their teachers and leaders
were reading the Torah to them. It seems that they no longer
understood Hebrew and wanted the sidra read and interpreted
in their vernacular. It is a pity that we are not told which
community or cummunities were involved. It was probably
not a community in Palestine; and may have been in southern
Italy or Sicily or one of the Mediterranean islands. Wherever
these Jews were, their complaint fortified Justinian's con-
viction that it would be easy to convince them, and all other
30 CJC I.9.II; CTh XVI.8.i8.

31 Justinian's novellae 37 and I3I; cf. Baron, op. cit., III, 9.
32 Procopius, Anecdota (ed. H. B. Dawing, Loeb Classics), XXVIII,
P. 333. Cf. Eusebius, Ecclesiastical History, Bk. V, C. 23; VII, C. 32, pp.
12-i6; Browe, p. 127 n. 82.
JEWS AND ROMAN LAW-GRAYZEL I03
Jews, of the truth of Christianity if they read the Scriptures

without midrashic interpretations. He therefore forbade
the reading of the Bible in a language which the ordinary
Jew did not understand and, furthermore, forbade the
interpretation by means of what he called deuterosis, by
which he may have meant the mishnah or the midrashic
approach to Jewish interpretation of the people's past, or
both.
The consequences of this round-about prohibition of Juda-
ism are interesting, though not germane to our discussion.
They are interesting because this Justinian decree may well
have given rise to those additions to the synagogue service,
the piyyutim, which allude to midrashic interpretations of the
Jewish past and thereby fortify faith in divine intervention
in the future. The Jews thus smuggled into the service those
encouraging comments that Justinian had ordered deleted.33
More to the point here is the order issued by the Byzantine
emperor Leo VI, toward the end of the gth century, in which
he repeated and went beyond the Justinian edict.34 The
matter lay dormant for centuries thereafter, not to be revived
until the year I239, when Pope Gregory IX ordered the
burning of the Talmud and other Hebrew works, so that the
Jews might be more easily persuaded of the truth of Christian-
ity.35 The study of Roman Law, which had been revived in the
previous century, may have recalled Justinian's edict to the
minds of the pope and the curia.
It is not surprising that, despite interference with what
went on within the synagogue, there was no interference
with Sabbath or holiday rest. Jews could not be disturbed
by being called to answer before a court of law or be troubled
33 That the Jews learned to circumvent attempts to suppress the

teaching of Judaism is clear from the discussion by Marmorstein in
REJ, 77, pp. I66-I76. He cites an instance during the 4th century
when the recital of the Shema was forbidden and the Jews inserted it
in various other parts of the service. Cf. Baron, VI, I53.
34 Baron, III, i8i, I89.
35 Grayzel, The Chuarch and the Jews, no. 96, pp. 240-I ff.
I04 THE JEWISH QUARTERLY REVIEW
on the Sabbath by collectors of taxes.36 For the Church, too,

now believed in a day of rest, even if it preferred Sunday to
Saturday. It consequently would not disturb Sabbaths and
holidays, even while it tried to make other manifestations of
Judaism difficult.
One such manifestation was the institution of the Patri-
archate. This was an old and therefore respected institution.37
It had functioned uninterruptedly, through the House of
Hillel, ever since the days of Jabne in the first century. The
Jews of the diaspora, like those of Palestine, regarded it with
awe, and Jews everywhere willingly taxed themselves for its
maintenance. The Roman government considered this vol-
untary tax an extra burden on the Jews, and Julian the
Apostate speaks of having exhorted his "brother, the vener-
able Patriarch Julos," to discontinue it.38 But the tax conti-
nued to serve as a tie among all Jews and between the Jews
and the Palestinian center. As late as 392, Theodosius I pro-
tected the powers of the Patriarch-referring to him as viy
clarissimuts and inlustris-and forbade imperial judges to re-
scind the excommunication of any Jew whom the Patriarch
had placed under a ban.39 In 396, Theodosius' successors, his
sons Honorius and Arcadius, found it necessary to decree
that, "If any one should dare in public to make insulting
mention of the illustrious Patriarch, he shall be subject to
punishment." 40 Yet only three years later, in 399, the same
emperors appear to have changed their minds completely. In a
strongly-worded edict, they referred to the Patriarch as "that
despoiler of the Jews," depopulator Judaeoratm, and to the
sums of money collected by his emissaries as "depredations."
The money collected was confiscated by the imperial treasury.4'
36 CTh II.8.26 (issued in 409); ibid., XVI.8.2o (in 412); CJC I.9.2,13.
37 CTh XVI.8.ii.
38 The reference was to Hillel II; cf. Michael Adler, "The Emperor
Julian and the Jews," in JQR (o.s.), V, 623 f.
39 CTh XVI.8.8.
40 CTh XVI.8.iI.
41 CTh XVI.8.I4.
Yet a few years later still, in 404, there was another change of
mind. The Patriarchs, if not distinguished, were called re-
spectable and deserving of the privileges which previous
emperors had bestowed upon them, and a few months later
they were once more permitted to collect money for
the upkeep of their institution.42 In 425, however, the ruling
Patriarch died without male issue. The emperors took advan-
tage of this accident of fate and did not ratify the appointment
of a successor, and in 429 they decreed the Patriarchate
extinct. However, the moneys collected from the Jews of the
diaspora, after such money had been collected, were to be
turned over to the imperial treasury.43
Is there any way of accounting for these vacillations of
policy other than by assuming a behind-the-scenes use of
influence on the part of the Jews, on the one hand, and the
Church on the other? The Church was intent upon destroying
the Patriarchate. In the fall of the Judaean state and the rise
of the Christian empire the Church saw the termination of the
prophecy of Genesis 49:Io, that the scepter would not depart
from Judah. But the Jews could still point to the Patriarch,
whom they considered a scion of Judah and who enjoyed the
allegiance of Jews everywhere and to whom they paid tribute.
The Church prevailed in 399; whereupon the Jews must have
brought influence to bear, by threatening to move their
sympathies, and perhaps even their persons, to the eternal
enemy of the Empire, the Parthians.44 Since the economic
power of the Jews in the eastern part of the Empire was still
considerable, the emperors yielded and reversed themselves.
But the death of Gamaliel VI gave the Church a persuasive
opportunity to bring the institution to a close.
From the very beginning of its dominance, the Church saw
the need for reducing the economic importance of Jews and
42 CTh XVI.8.I5 and I7.

43 CTh XVI.8.29.
44 Reference to such awareness on the part of the Jews, in Baer,
Scripta Hierosolymitana, as above, p. 87.
io6 THE JEWISH QUARTERLY REVIEW
pagans.45 Some of the emperors may have sensed that as a

policy this was not to the Empire's advantage, but in the
matter of slaves, the Church's argument was cogent for other
reasons. Already Constantine prohibited Jews from purchasing
and owning slaves; if the slave was a pagan, he was lost to
the imperial fisc; if he was a Christian, he was freed; if the
Jewish owner circumcised his slave, the owner was subject to
capital punishment.46 The stringent law was not easy to
enforce, and when subsequently restated it was modified by
the removal of the death penalty and limiting the loss of
possessions to cases where Jewish owners sought to convert
their slaves to Judaism.47 This is where the Theodosian Code
left it in 438,48 and the rule that Pope Gelasius followed in
496.49 The Justinian Code, however, went back substantially
to the first Constantinian edict, except for pagan slaves
who could be owned and could be freed only if they accepted
Christianity.50
The reasons for the quick change in the policy of totally
prohibiting Jews to own slaves was that any meaningful
economic life was impossible in an economy that depended
exclusively on human labor. That Jews remained to any
extent in farming or any kind of manufacturing was due to
the relaxation of the edict. Even so, a pagan slave could
easily free himself from his Jewish owner by declaring his
intention to join the Church. Eventually the Jews of the Rom-
an Empire were to some extent driven into commerce or were
compelled to choose between poverty and moving to Parthia.
Gregory I, who was Pope during the last decade of Justinian's
century, while expressing horror over Jews' possessing
45 Juster, II, 322-6.

46 CTh XVI.9.2. Other references to the subject of circumcision
are: CTh III.I.5; XVI.8.26, I9, 22; 9.I, 2, 3; Nov. Theod. 111.4;
CJC I.7.I; 9.I6; IO.I.
4 CTh III.I.5; XVI.g.I; Sirm.4.
48 CTh XVI.8.22; 9, 3, 4, 5.
49 Mansi, 8, col. 132; cf. Vogelstein u. Rieger, I, I28.
50 CJC 1.3.54 (56) # # 8-II, addressed to Pope John II.
Christian slaves, was more perceptive and therefore more

effective than the emperor. In his letter of February 599
regarding the Jew Basil,51 he hit on a compromise by which
the Jew could continue running his farm by means of Christian
slave labor, while the Pope was able to gain some converts
from Judaism in the persons of Basil's sons.
The possession of slaves was not the only area in which the
Christian legislators interfered. The Justinian Code forbade
the purchase by Jews, or acquisition in any other way, of
property on or near which a church was located and the
ownership of church utensils.52 Gregory I enforced this law
as well, complaining bitterly against a cleric who violated it.53
Nevertheless such violations recurred during later centuries
when Churchmen, high and low, found themselves in financial
straits and let themselves be tempted to pledge Church proper-
ty against loans by Jews.54 In fact, during the Avignon period
Jews were employed by members of the papal court and served
them as moneylenders with whom they pledged articles of
various kinds.55 In Jewish market places, on the other hand,
where the Jews were presumably the buyers and sellers, no
non-Jew was permitted by the early Christian emperors to
interfere by setting the price of goods.56 What was involved
apparently was the recognition of Jewish autonomy and per-
haps also the matter of Jewish law and its application.
Legislation regarding marriage also entailed economic

consequences, especially in the area of testamentary rights.
The over-all obj ective was to prevent Judaism from gaining
adherents. The pagan emperors of the 3rd century discouraged
51 MGH, Reg. Gregorii I, Bk. IX, no. I04.

52 CTh XVI.8.io; Justinian novella I3I; CJC I.2.2I.
53 Gregory I, ibid., Bk. I, no. 66.
54 Grayzel, The Church and the Jews, no. I4, pp. I06-7; no. IV,
pp. 300-I; XXIII, pp. 320-I.
55 Idem, "The Avignon Popes and the Jews," in Historia Judaica, II
(I940), p. I.
56 CTh. XVI.8.io; CJC I.9.9.
Io8 THE JEWISH QUARTERLY REVIEW
polygamy, and the Christian emperors continued to decree

against it, though without specific mention of Jews.57 But the
pagan emperors had no objection to intermarriages among the
various sects of the Empire, while the Christian emperors
considered a Christian's marrying a Jewish spouse as equi-
valent to adultery and severely punishable.58 So a number of
local Church councils also decreed, both before and after the
Codes.59 One must assume that intermarriages at that time
resulted in gains for the Jewish side. Later both sides ob-
jected.
Men who contracted such intermarriages may well have
been among those who were considered to "have derogated
the dignity of the Christian faith and polluted themselves
with Jewish contagion," but they did not lose their testament-
ary effectiveness unless they had actually apostatized and
this is proved in court within five years after their death.60
On the other hand, if a Jew became an apostate from Judaism,
his father dared not disinherit him. Should the father try to
evade this law by not leaving a will, the entire inheritance
was to go to the Christian heir. A Christian heir cannot, in
fact, be disinherited even if he committed a criminal act
against his parents.6' The same law protected converts to
Christianity against insult and attack by Jews.
Here were problems for the implementation of which the
Church had to struggle all through the Middle Ages, and that
with indifferent success. As long as a secular prince considered
Jewish wealth as potentially his own, he was the loser if he
permitted Christian descendants of Jews to inherit them.
57 CJC V.5.2; IX.9.I8.

58 CTh III.7.2; IX.7.5; CJC I.9.6.
59 Blumenkranz, op. cit., in discussing the problem of intermarriage
enumerates the councils that expressed themselves on the subject in
the early Middle Ages. Gratian included the subject in his compilation
of Canon Law and it therefore became part of the Corpus Juris Cano-
nici, Friedenberg edition, vol. I, cols. I087-8.
60 CTh XVI.7.3; CJC I.7.2.
61 CTh XVI.8.28.
JEWS AND ROMAN LAW-GRAYZEL lO9
There were times, therefore, when Christian princes confis-

cated the property of Jews who became converted.62 The
III Lateran Council (II79) and the Council of Montpellier (II9
found it necessary to speak out on the subject.63 As to pro-
tecting converts against insulting epithets hurled at them by
Jews, King James I of Aragon had to issue an order for-
bidding the apparently common practice.64
But as long as the testamentary rights of a Christian were
not affected, the Jews of the early as well as of the later cen-
turies could draw up wills and have them enforced, "since,"
as the Justinian Code put it, "this was useful and necessary." 65
Moreover, freedom to resort to their own laws was recognized
in every situation that involved internal Jewish life, even in
instances that called for excommunication, imprisonment,
stripes or fines. In criminal instances, however, the Jews were
subject to Roman Law.66 In the matter of witnesses, the
Justinian Code evidenced greater anti-Jewish discrimination
by refusing to admit the testimony of Jews in a lawsuit
between Christians and, where a Jew and a Christian were
involved, by admitting the testimony of a Jew only if it was
favorable to the Christian side of the argument.67 This type
of discrimination was probably inoperative at any time. It
certainly fell into disuse during the period of the Barbarian
Invasions, and underwent all sorts of modifications later in
the Middle Ages.68
Another problem which early Christian legislation attempt-

ed to solve, but never really succeeded in solving, except for
the ghetto period, was the one concerned with the Jews in
62 Grayzel, The Church and the Jews, no. 85, pp. 222-3 ff.
63 Ibid., nos. I, pp. 296-7 # 3; III, pp. 298-9 # IO.
64 Ibid., no. I05, pp. 256-7.
65 CJC I.5.2I. Heretics were deprived of this right.
66 CTh ILJi.io; XVI.8.8; CJC I.9.8. But in non-capital punishments
provincial judges had to respect the authority of the patriarch.
67 CJC 1.5.21.
68 Grayzel, The Church and the Jews, pp. 56 ff.

7
IIO THE JEWISH QUARTERLY REVIEW
public office. Theodosius II's Novella 3 asserted the general

principle which governed the legislation: "We finally sanction
by this law destined to live in all ages, that no Jew, no Samar-
itan, . . . shall enter upon any honors or dignities; to none of
them shall the administration of a civil duty be available. . ."
Justinian, in his Novella 45, expressed himself to the same
effect.69 Theodosius, in the Code, ordered them kept out of
any service for or with the army.70 The only office open to
Jews, one on which the emperors insisted, was the decurionate.
It was a burdensome and expensive office, since it involved
bearing the expense of public functions. Most Roman citizens
eligible to hold it tried their best to evade the office. During
the pagan period, Jews were excused because it involved
pagan rites. But the Christians abolished these. One of the
earliest acts of Constantine I was therefore to impose the
decurionate on Jews. His order to this effect, addressed to the
Jews of Cologne,71 is better known for its proof of the exist-
ence in Central Europe of a Jewish community than for the
hostility which inspired it. The edict was modified a few
years later (330), perhaps with conditions of the eastern part
of the Empire in mind, to except from this service the Patri-
archs, the Jewish priests (presbyteroi), as well as others
"completely devoted to the synagogue of the Jews." 72
Toward the end of the 4th century the mood changed for the
worse: the burden was reimposed and, if anyone tried to
change his residence in order to evade it, he was to be ordered
back to his former municipality.73
The fact is, however, that various princes in later centuries
69 Theodosian's novella 3.2, and Justinina's novella 45 (preface).

The ruling excluded Jews also from service as lawyers: CTh XVI.8.i6.
70 CTh XVI.8.24.
71 CTh XVI.8.3.
72 CTh XVI.8.2, 4.
73 CTh XII.i.99, I57, I58, I63; CJC I.9.5, Io. As groups, Jews and
Samaritans were exempted form the burdensome duty of serving as
shipmasters; but fit individuals among them could be conscripted for
this service: CTh XIII.s.I8.
JEWS AND ROMAN LAW-GRAYZEL III
did employ Jews in high public office. The various kingdoms

of Spain were the most reluctant to give up their Jewish
public servants. They needed them in the nlewly reconquered
provinces; and it was so in any others, such as Hungary,
where a clerical and administrative middle class had as yet
not come into being. The rule against such employment set
forth by the Roman emperors had to be revived by Innocent
III in the early I3th century and found its way into the
Codex Juvris Canonici.74
It is clear that early Christianity failed to recognize the
staying power of Judaism, that which in later centuries came
to be called "Jewish stubbornness." The Christian emperors,
under Church influence, acted as though Jews could be in-
duced to adopt their religion if only sufficient pressure were
applied. They were even more horrified by Christians adopt-
ing Judaism. The attitude expressed itself in those early years
by such statements as described the acceptance of Judaism
by former Christians as an act "more grievous than death
and more cruel than murder;" persons, instructed in the
Christian mysteries, who fell into Jewish ways, became alien
to the Roman Empire, in other words, guilty of treason.75
Consequently, Jews, heretics and Donatists who have the
audacity of throwing confusion into the Catholic faith may be
guilty of spreading a contagious pestilence and have to be
repressed.76 They must not be permitted to suppose that the
laws against them have fallen into disuse. Judges must enforce
these laws for the protection of Christianity on pain of heavy
fines.77 Christians were forbidden to utter blasphemies against
Christianity, or publicly to disagree with the decisions of
councils, since they thereby set bad examples to Jews and
pagans. 78
74 Grayzel, The Church and the Jews, passim; Corpus Juris Canonic
Decret. Gregorii IX, lib. V, tit. vi, c. I3, I4.
75 CTh XVI.8.I9.
76 CTh XVI.8*44-
7 CTh XVI-5-46, 47.
78 CJC I.I.4.
II2 THE JEWISH QUARTERLY REVIEW
As far as Jews were concerned, it has already been pointed

out, they were not permitted to disturb or insult a convert out
of Jewish ranks, as Constantine put it, "who fled their feral
sect." 79 Converts to Judaism were to lose their property to the
imperial fisc; 80 but Jews who tempted Christians to join
Judaism, as had been the case with some Christian women
employed in the imperial weaving establishments, were to
incur the death penalty.81 Possibly these women were not
even full converts, but only the kind of semi-converts that
used to be called "they who feared the Lord," and simply
adopted some Jewish practices, such as the Sabbath and
holidays. Even so, imperial law legislated against them;
John Chrysostom called visiting the synagogue a criminal
act. 82
On the question of reversion to Judaism after having under-
gone baptism, the imperial legislation was of two minds. In
357 reversion was punished by loss of property. Half a century
later (4i6), the Theodosian Code decreed that converts for
whatever reason, even if not out of genuine faith, must not
be permitted to return to Judaism. Almost a century later,
at the Council of Agde in 5o6, the question was still debated,
what to do about those who "return to their vomit." 83 At
the same time, the motives for conversion did count, and a
Jew who joined the Church in order to escape punishment for
some crime, or to avoid paying a debt, was not to be permitted
to go on being a Christian: he either paid or was turned back
to Judaism. 84 The Church had not yet envolved the idea of the
sacrament of baptism as being irrevocable. As late as the time
of the First Crusade, many of those baptized by force were
tacitly permitted to return to their old faith, although the
79 CTh XVI.8.5; 8.i; CJC I.9.3.

80 CTh XVI.8.7.
81 CTh XVI.8.6.
82 Chrysostom, Adversus Juddaeos, 6 # 6; cf. Juster, I, 277,
Browe, p. I I 9.
83 CTh XVI.8.7, 23; Hefele-Leclerque, Histoire des Conciles, I, 469 f.
84 CTh IX.45.2; CJC I.12.I.
JEWS AND ROMAN LAW-GRAYZEL II3
permission scandalized the anti-pope of that day.85 It may

be assumed that, before that time, forced conversions were in
many instances at least as ephemeral, though the cost to the
returned convert may have come high.86
Prevented from applying physical force, the Church was
ready to use the social boycott and maintain a strict sepa-
ration between Jews and Christians. As Jean Juster put it:
the early Christians had tried their best to bring the pagan
world closer to the Jewish view of the world; but a few cen-
turies later they began to fear that their adherents might
come too close to Judaism and face the possibility of going
over to it completely.87 Jerome repeats the earlier complaint
of Origen that the Jews avoid Christians; yet he himself urged
that the Christians of his day keep away from Jews.88 A long
series of church councils tried to implement regulations against
eating with Jews, using their physicians, bathing with them,
following their calendar, and the like.89 But the emperors were
not ready to take such steps. The Jews were too numerous in
the eastern part of the Empire and their socio-economic
situation was far from unimportant. Outright force was em-
ployed in Visigothic Spain at the end of the 6th and all through
the 7th centuries. There, however, the situation was vastly
different from that of the Eastern Empire, and politics
dictated the king's submission to the Church. In the rest of
the Christian world, conditions for even physical segregation
were not ripe until the I5th and i6th centuries, when the
ghetto age began.
The only possible conclusion from the above is that the
85 Jaffe, Monumentca Moguntina, p. I75, no. go; cf. Aroniu

Regesten zur Geschichte der Juden etc., no. 204.
86 Browe, p. I27 f.
87 Juster I, 277.
88 Ibid., p. io8 n. 6.
89 Cf. Blumenkranz, op. cit., p. I73. See also the Trullian Synod
692, in Hefele-Leclerque, Op. cit., III, pt. i, p. 575. Agobard urged such
segregation in the gth century, but to no avail: see Aronius, op. cit.,
nos. go, 95, 97.
only pro-Jewish inheritance of the Middle Ages from Roman

Law was the statement that "Jews shall be bound by their
own ritual," and moreover that the lateir emperors sought to
follow the example of their 4th century predecessors, Constan-
tine, Valentinian and Valence. 90 No law of the Empire existed
forbidding the Jewish sect.91 Also, it was explicitly stated
that "No person shall be trampled upon or be exposed to
contumely (obteratur et expositum ad contumeliam) simply
because he is a Jew." 92 Essentially, what all this adds up to
is that no force is to be used against Jews or Judaism. It was
best expressed by Pope Gregory I, in his famous letter of
June 598, which began "Even as Jews may not do in their
synagogues what the (Roman) Law prohibits, so they ought
to sustain no injury in matters which that Law permits." 93 He
continues to urge their conversion by the method of persuasion,
not by force. Nevertheless, the same Pope, a little more than
a year later (August 599), congratulated King Reccared of
Visigothic Spain on embarking upon a series of repressive
measures to force the Jews into Christianity.94
Of course, efforts at forcible conversion never really ceased,
but the Roman legal tradition, as interpreted by Gregory I,
served to reduce force considerably. One should not mini-
mize the effect of this tradition; without it the Jews of Europe
might have been exterminated during the crusading era or
even earlier. Pope after Pope, in the I3th and I4th centuries,
repeated Gregory's warning against physical attack.95 The
Church even raised the Roman legal tradition into a theologic-
al principle. It went back to a comment by Tertullian (I97)
on Psalm 59.I2 (II): "Slay them not, lest my people forget:
scatter them by thy power and bring them down." Tertullian
emphasized the scattered state of the Jews as punishment for
90 CTh XVJI.8.I3.
91 CTh XVI.8.9.
92 CTh XVI.8.2i, issued in 4I2.
93 Gregory I, op. cit., Bk. VIII, no. 25.
94 Ibid., Bk. IX, no. 228.
95 Cf. Grayzel, "The Papal Bull Sicut Judaeis," op. cit., pp. 243-280.
the crucifixion. Augustine, some two hundred years later,

when Christianity had already triumphed, but had not been
able to destroy Judaism and the Jewish claim to chosenness,
so that the continued existence of the Jewish people had to
be explained, stressed the continued existence of the Jews as
an answer to David's, or rather Jesus', condemnation of the
Jewish people to live for the sake of Christianity, as witnesses
to its veracity. In this case, as in many others, theology,
especially Augustine's, was welcome as a way of getting
around an ineluctable fact. It helped explain why the Jews
were still very much around and, at the same time, it justified
the efforts to reduce their social and economic status. It was
good to have them around, lest Christian people forget the
source of their faith, and also in order that their low estate
afford clear proof that God had abandoned the Jewish
people. 96
There was another heritage from Rome which the early
emperors had never dreamed of, and which cannot be found in
either of the Codes. This was the servitus Judaeorum, the
theory that the Jews and their property belonged in a special
sense to the imperial household, that they were the serfs of the
Imperial Treasury. The idea was a by-product of the revival of
the study of Roman Law in the iith and I2th centuries.97 The
mediaeval legalists pointed out that Vespasian and Titus had
imposed a special tax on the conquered Jews, which was soon
extended to diaspora Jews as well. 98 The fact that later pagan
emperors had abolished the tax was apparently forgotten.
The later Christian emperors, moreover, had, as we have seen,
compelled the Jews to pay to the imperial fisc the tax which
they had voluntarily paid to the Patriarchs as long as the
96 Cf. Browe, pp. I42 ff., 146; Baer, in Scripta, pp. 87 f.

97 Josephus, War, VII.6. Mention of such a servile relationship
first appears in Frederick I's charter granted to the Jews of Regensburg
in II82 (Aronius, no. 314a). While it is only hinted at in this document,
it appears fully developed under Frederick II (ibid., 496), where the
term used is servi camerae.
98 See above, nn. 7 and Io.
institution of the Patriarchate survived.99 The special tax

was interpreted in medieval times as betokening a special
status, which the legalists interpreted as a species of serfdom.
There were, of course, other reasons why the Jews during the
crusading era fell into the trap of this peculiar relationship;
but to the students of Roman Law, it was obvious that the
emperor of the Holy Roman Empire inherited special rights
over the Jews.100
The medieval Church found the peculiar and inferior
Jewish status a highly acceptable arrangement, and it insist-
ently reminded the princes of their duty to restrain Jewish
influence and enforce Jewish inferiority. Understandably, the
Church based itself, not on the presumed historical arguments
of the legalists, but preferred to go back to the "crime" of
the crucifixion which made the Jews the eternal and insidious
enemies of Christendom.101 Augustine and his contemporaries
had provided their own type of historical argument. They
argued that, with the emergence of Christianity, Jacob and
Esau had changed roles. Since Christianity was the last to
arrive on the scene, it was the younger brother, so that Jacob-
Israel, being the elder, now had to serve Esau-Edom who was
the younger.102
To sum up, we must therefore conclude that Roman Law

preserved Judaism and the Jews only in a strictly limited sense.
99 CTh XVI.8.29; cf. Juster, II, 286-8.

100 Cf. Guido Kisch, The Jews of Mediaeval Germany (Chicago, I949),
pp. 129 ff; Baron, op. cit., IV, 7I et passim. See also Baron's essay in
Yitzhak F. Baer Jubilee Volume (Hebrew) on the "Plenitude of Aposto-
lic Powers and Mediaeval Jewish Serfdom," (Jerusalem, I960),
pp. 102-124.
101 Grayzel, "The Church and the Jews," no. i8, pp. 114-5.
102 Migne, PL, XXX, col. 897; XXXVIII, col. 56; XLI, col. 543.
Cf. Blumenkranz, Die Judenpredigt Augustins (Basel, 1946), pp. I69 ff.
The identification of Esau-Edom with Rome goes much farther back.
This and its extension to the Christian-Jewish conflict is discussed by
Gerson D. Cohen, "Esau as Symbol in Early Mediaeval Thought,"
in Jewish Mediaeval and Renaissance Studies, Alexander Altmann, ed.,
(Harvard University Press, Cambridge, Mass., I967).
It did not save them from degradation of status, from social

and political inferiority, from insult and expulsion. It did pro-
vide bare continuity, and even this at the mercy and the whim
of the Christians under whose rule they lived. They became
the property of their overlord, and, since one could do with
his property as one pleased, even that heritage from Rome be-
came meaningless, as the history of the Jews in the I4th and
I5th centuries in the Holy Roman Empire amply proves. If
a Jewish population and a Jewish religion survived the Middle
Ages, it did so for the same reasons that it survived under the
Christian emperors of the early Christian centuries, namely,
because of the economic usefulness of the Jewish population
to the life of the Empire. The heritage of Rome decreased in
survival value for the Jews as their usefulness decreased to the
political and economic situation of the countries in which they
lived. The safety of a minority always rests on its usefulness
to the majority.

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The Jews and Roman Law

Author(s): Solomon Grayzel

University of Pennsylvania Press is collaborating with JSTOR to digitize, preserve and

BY SOLOMON GRAYZEL, Dropsie College

THERE IS A WIDE-SPREAD ASSUMPTION that the respect and

in his concluding remarks argues that the Jews brought the

There are also important differences between the two codes.

I CTh XVI. 8. 9: Judaeorum sectam nulla lege prohibitam satis

freedom enjoyed by the Jews even of the pagan Empire after

maintained, though it could not possibly have been enforced

ation (3W2), the Jews enjoyed considerable rights. They could

11 Jerome, in his commentary on Isaiah 3.2 (Patrologia Latina,

that Judaism was nowhere prohibited; and the other, initi-

not be burned down; attacks on them must be punished

18 CTh XVI.8.9 (in 393) and I2 (in 397).

perhaps in connection with some of the depredations of

22 CTh XVI.8.26: "The Jews shall know, in response to their

Apart from the synagogue as an institution, Justinian

26 MGH, Reg. Gregorii I, I.34 (March 591).

effigy of Haman.30 The implication is that the Jews intention-

30 CJC I.9.II; CTh XVI.8.i8.

Jews, of the truth of Christianity if they read the Scriptures

33 That the Jews learned to circumvent attempts to suppress the

on the Sabbath by collectors of taxes.36 For the Church, too,

42 CTh XVI.8.I5 and I7.

pagans.45 Some of the emperors may have sensed that as a

45 Juster, II, 322-6.

Christian slaves, was more perceptive and therefore more

Legislation regarding marriage also entailed economic

51 MGH, Reg. Gregorii I, Bk. IX, no. I04.

polygamy, and the Christian emperors continued to decree

57 CJC V.5.2; IX.9.I8.

There were times, therefore, when Christian princes confis-

Another problem which early Christian legislation attempt-

68 Grayzel, The Church and the Jews, pp. 56 ff.

public office. Theodosius II's Novella 3 asserted the general

69 Theodosian's novella 3.2, and Justinina's novella 45 (preface).

did employ Jews in high public office. The various kingdoms

As far as Jews were concerned, it has already been pointed

79 CTh XVI.8.5; 8.i; CJC I.9.3.

permission scandalized the anti-pope of that day.85 It may

The only possible conclusion from the above is that the

85 Jaffe, Monumentca Moguntina, p. I75, no. go; cf. Aroniu

only pro-Jewish inheritance of the Middle Ages from Roman

the crucifixion. Augustine, some two hundred years later,

96 Cf. Browe, pp. I42 ff., 146; Baer, in Scripta, pp. 87 f.

institution of the Patriarchate survived.99 The special tax

To sum up, we must therefore conclude that Roman Law

99 CTh XVI.8.29; cf. Juster, II, 286-8.

It did not save them from degradation of status, from social

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