The Presbyters Project

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ER 2118

The Emperors Gratian, Valentinian, and Theodosius issue the law according to which the presbyters can testify without being tortured. If his testimony is false, litigants can bring an action for fraud against the priest. The law issued on 25 July 385 or 386 in Constantinople, included in the Theodosian Code published in 438 and the Breviary of Alaric published in 506 in Gaul, and repeated in the Justinian Code promulgated in 529 and then again 534.

XI.39.10 = Brev. Alar. XI.14.5 = cf. CJ 1.3.8

IDEM AAA. PAVLINO P(RAEFECTO) AVGVSTALI. Presbyteri citra iniuriam quaestionis testimonium dicant, ita tamen, ut falsa non simulent. Ceteri vero clerici, qui eorum gradum vel ordinem secuntur, si ad testimonium dicendum petiti fuerint, prout leges praecipiunt, audiantur. Salva tamen sit litigatoribus falsi actio, si forte presbyteri, qui sub nomine superioris loci testimonium dicere citra aliquam corporalem iniuriam sunt praecepti, hoc ipso, quod nihil metuant, vera suppresserint. Multo magis etenim poena sunt digni, quibus cum plurimum per nostram iussionem delatum fuerit, occulto inveniuntur in crimine. DAT. VIII KAL. AVG. ARCADIO A. I ET BAVTONE CONSS.

INTERPRETATIO. Praesbyteri citra iniuriam quaestionis, id est sine supplicio corporali posse testimonium dicere. Alii vero clerici, qui eorum ordinem subsecuntur, si ad testimonium dicendum adhibiti fuerint, sicut leges praecipiunt, audiantur: ita ut salva sit contra praesbiteros falsi actio, si in aliquo docebuntur fuisse mentiti, quia magis poena digni sunt, quibus cum lex reverentai prestet, suae professionis inmemores in mendacii crimine deteguntur.

(ed. Mommsen 1905: 659-660)

XI.39.10 = Brev. Alar. XI.14.5 = cf. CJ 1.3.8

The same Augustuses to Paulinus, Augustal Prefect.

Presbyters shall speak their testimony without the outrage of torture, but under the condition that they shall not make false pretenses. All other clerics of a lower grade and order, if summoned for giving testimony, shall be heard just as the laws prescribe. But if perchance the presbyters should suppress the truth, since they are directed to give their testimony under the title of a higher-position without the infliction of any corporal outrage, and for that reason have nothing to fear, litigants shall have preserved the right of action for falsehood. For if those persons upon whom We have bestowed much through Our commands should be found involved in a secret crime, all the more are they worthy of punishment.

Given on the eighth day before the kalends of August in the year of the first consulship of Arcadius Augustus and the consulship of Bauto. July 25, 385(?); 386.

INTERPRETATION: Presbyters shall be able to give their testimony without the outrage of torture, that is, without corporal punishment. But all other clerics of a lower order, if employed for giving testimony, shall be heard just as the laws command, provided that an action for falsehood shall be reserved against presbyters if in any manner they should be proved to have lied, because those persons are more worthy of punishment, to whom the law grants reverence, if they should be unmindful of their profession and detected in the crime of lying.

(trans. Pharr 1952: 341; adapted)

Discussion:

The emperors are named in XI.39.9. The date is doubtful because the prefecture of Paulinus was in 386 and the consulship of Arcadius and Bauto in 385.

Place of event:

Region

East
Gaul

City

Constantinople

About the source:

Title: Codex Theodosianus, Code of Theodosius, Theodosian Code, Breviary of Alaric, Lex Romana Visigothorum, Code of Justinian, Justinianic Code, Codex Iustinianus
Origin: Constantinople (East), Gaul
Denomination: Catholic/Nicene/Chalcedonian

The Theodosian Code is a compilation of the Roman legislation from the times of the Emperor Constantine to the times of Theodosius II. The work was begun in 427 and finished in autumn 437 when it was accepted for publication. It was promulgated in February 438 and came into effect from the beginning of the year 439.

The compilation consist of sixteen books in which all imperial constitutions are gathered beginning with the year 312. Books 1-5 did not survive and are reconstructed from the manuscripts of the Lex Romana Visigothorum, i.e. the Breviary of Alaric, the legal corpus published in 506 by the Visigothic king, Alaric, containing excerpts from the Theodosian Code equipped with explanatory notes (interpretationes), post-Theodosian novels and several other juristic texts.

A new compilation was undertaken during the reign of the emperor Justinian. A committee of ten persons prepared and promulgated the Codex in 529. It was quickly outdated because of the legislative activities of the emperor and therefore its revised version had to be published in 534. The Codex together with the novels, the Pandecta, a digest of juristic writings, and the Institutes, an introductory handbook are known under the medieval name "Corpus Iuris Civilis".

Edition:

Theodor Mommsen and Paul Martin Meyer (eds.), Theodosiani libri XVI cum constitutionibus Sirmondianis et leges novellae ad Theodosianum pertinentes, 2 vols., Berlin 1905

Paul Krüger (ed.), Codex Iustinianus, Berlin 1877

Gustav Hänel (ed.), Lex Romana Visigothorum, Leipzig 1849

Translation:

The Theodosian Code and Novels and the Sirmondian Constitutions, a translation with commentary, glossary, and bibliography by C. Pharr, Princeton 1952

Bibliography:

"Corpus Iuris Civilis", in Karl Ubl et. al., Bibliotheca legum 2018

Codex Theodosianus, in Karl Ubl et. al., Bibliotheca legum 2018

Lex Romana Visigothorum and Epitomae, in Karl Ubl et. al., Bibliotheca legum 2018

(all those entries with extenstive, recent bibliography)

Categories:

Described by a title - Presbyter/πρεσβύτερος

Public law - Secular

Administration of justice - Secular

Legal practice

Please quote this record referring to its author, database name, number, and, if possible, stable URL: M. Szada, Presbyters in the Late Antique West, ER2118, http://www.presbytersproject.ihuw.pl/index.php?id=6&SourceID=2118