T.D. Barnes: Legislation against Christians

Barnes, T.D. “Legislation Against the Christians.” The Journal of Roman Studies. Vol. 58. (1968): 35.
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Excerpts from
LEGISLATION  AGAINST  THE  CHRISTIANS
By  T.  D.  BARNES
Queen's College, Oxford
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The modern bibliography on the subject of the juridical basis of the persecutions of the Christians in the Roman Empire before 250 is vast, contentious-and in large part worthless. For no-one has yet attempted to gather together in a small compass and to scrutinize without preconceptions all the primary evidence for specific actions or legal enactments of the Senate or of emperors before Decius which directly concerned the Christians, or which were directly rendered necessary by them. Ulpian collected the imperial rescripts relating to the punishment of Christians in the seventh book of his De Officio Proconsulis. This chapter has left no discernible trace in the Digest commissioned by the Christian emperor Justinian. The evidence which remains, therefore, is scattered and often difficult to evaluate. What follows is an attempt to present clearly the primary evidence for the legal basis of the condemnation of Christians before 250 without the accretions of later hagiography or of modern interpretations.

Marble bust of Trajan Emperor Glyptothek Munich
28 January 98 – 9 August 117
wikimedia

(6) Trajan: rescript to Pliny, with Pliny's original letter,
Pliny, Epp. x, 96/7 ; 45 cf. Tertullian, Apol. 2, 6 f., on which alone Eusebius (Chronicon, GCS xx, 218 f.; XLVII, I95 ; HE III, 33) depends. 

Christians were accused before Pliny, who states in his letter that he did not know how they were normally punished because he had never taken part in any trial concerning them. Nevertheless, he executed those who admitted to being Christians-except for those who were Roman citizens, whom he sent to Rome.46 After the first trial (or trials), more were accused in an anonymous libellus and by an informer. Pliny released those who said that they were not Christians and never had been, but first he made them invoke the Gods, sacrifice before statues of the Gods and of the emperor and curse the Christ. He also made those who said that they had been Christians but were no longer do the same. But, before releasing them, he wrote to Trajan. Trajan, in reply, professed to be laying down no universal rule,47 but declared that Christians, though they were not to be hunted out, were to be punished if openly accused and convicted. However, if a man said he was not a Christian and proved it by sacrificing to the Gods, his change of heart should earn him pardon, even if his past was not free from suspicion. 

Pliny, when trying the Christians before him, had no need to rely on any law which made Christianity a capital crime: indeed he appears not even to have known whether there was one. There were three categories of accused: those who confessed to being Christians; those who denied ever being Christians; and those who admitted having been Christians in the past, but said that they were no longer. Pliny was certain how he ought to treat the first two classes. The second he released, while the first he either executed on the spot (the non-citizens) or sent to Rome for punishment (the citizens). The third class, however, a very large one, presented a problem and caused Pliny to write to the emperor. When he executed or despatched to Rome those who confessed, he had no doubts that punishment was merited. But his investigation of the third class revealed that the Christians had committed no illegal acts like robbery or adultery: their only crime was a depraved superstition. He accordingly urged on Trajan at some length the advantages of allowing  'paenitentiae locus '. 

It is not clear whether Trajan, in his reply, made a change in the legal position of Christians or not. Since Pliny implies that trials of Christians were far from rare, it is hard to believe that no-one before had been accused of Christianity after ceasing to be a Christian.

Governors before Pliny may have set free those who answered 'non sum' to the putting of the charge 'Christianus es?', without enquiring whether they had been Christians in the past. However, whether Trajan's ruling is an innovation or the reaffirmation of a principle already established, Christianity is placed in a totally different category from all other crimes. What is illegal is being a Christian: the crime is erased by a change of heart. The function of the sacrifice is to demonstrate that, even if a man has been a Christian, his change of heart is genuine and not just a matter of words.

During the second and early third centuries those accused of being Christians continued to be set free if they performed a symbolic act of sacrifice, and punished if they did not.

In the language of Pliny and the apologists, condemnation was for the nomen; and, as Tertullian remarked, there was nothing to prevent a man from denying and regaining his liberty ' iterum Christianus'. There is but one example of suspected Christians being punished even after apostasy: in the violent persecution at Lugdunum. 

In this case, however, there was apparent evidence of those flagitia which Trajan had considered irrelevant: some pagan slaves belonging to Christians were threatened with torture and denounced the Christian community for Thyestean feasts and Oedipodean incests.

(I5) Septimius Severus:
HA, Severus 17, I. According to the Historia Augusta, Septimius Severus: Iudaeos fieri vetuit. idem sanxit de Christianis.

The putting of Christians and Jews on the same level is an idea which recurs later in the Historia Augusta in indubitable fiction and that alone, without supporting arguments, would be enough to bring the statement about Severus and the Christians under the gravest suspicion, even though the prohibition of Jewish proselytism may well be historical.

Modern scholars have often claimed that the alleged edict is genuine because it was immediately followed by a persecution directed precisely against catechumens, i.e., against recent converts. But in the only contemporary account of a martyrdom of the time which is extant, the Passio Perpetuae, the charge is still being a Christian, not having become one. There is, moreover, no close temporal connection between the alleged edict and the attested outbreaks of persecution. Although the relevant section of the Vita Severi is highly condensed and slightly confused, it explicitly places the prohibition of conversion to Judaism and to Christianity after Severus' departure from Antioch, before his arrival in Alexandria and during his journey south through Palestine in 199. It is improbable in the extreme that the Historia Augusta has transferred to the journey south through Palestine actions which its source assigned to a return journey in 201 for the imperial house almost certainly travelled back from Alexandria to Antioch by sea. Perpetua and her companions were martyred in March, 203,107 and Eusebius dates the beginning of persecution in Alexandria to Severus' tenth year (either August, 201 to August, 202 or April, 202 to April, 203). This persecution seems to have continued sporadically for some years, since some martyrs were put to death by Subatianus Aquila, who is not attested as prefect of Egypt until 206. To argue that there is a connection between Severus' edict and a widespread outbreak of persecution in 202/3 is, therefore, mistaken in one minor and one major respect. Persecution did not flare up and then cease at once, but dragged on for some time. It also began (so far as the evidence goes) not less than two years after the date given for the edict by the only author who asserts its existence. 

There is, however, a still more serious difficulty in accepting the edict as historical. If Christians are in the same position as Jews and conversion alone is illegal, then simply being a Christian from birth is not illegal and Christianity itself is no crime. But there is no hint in any Christian writer that the legal position of the Christians had been thus alleviated - not even in the contemporary Tertullian, who cites examples of Severus' favours to the Christians. Eusebius, on the contrary, thought that Severus stirred up persecution rather than abated its severity. And, as the Passio Perpetuae shows, men continued, after 199 as before, to be condemned to death solely because they were Christians. 

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Conclusions (excerpts)

What, therefore, does the primary evidence reveal about the juridical basis of the persecutions? The central fact is Trajan's rescript to Pliny. The legal position of Christians continues exactly as Trajan defined it until Decius. After Trajan's rescript, if not already before, Christianity was a crime in a special category: whereas all other criminals, once convicted, were punished for what they had done in the past,'the Christian was punished for what he was in the present, and up to the last moment could gain pardon by apostasy. There is no evidence to prove earlier legislation by the Senate or the emperor. Indeed, the exchange of letters between Pliny and Trajan implies that there was none. Given the normally passive nature of Roman administration,189 the earliest trial and condemnation of Christians for their religion should be supposed to have occurred because the matter came to the notice of a provincial governor in the same way as it was later brought to the attention of Pliny. (There is no justification for assuming either that this must have happened first in Rome or that it had any connection with the fire of Rome in 64 or that the emperor was consulted.) When Pliny was making his tour of Pontus, Christians were denounced before him by accusers. The earliest magistrate to condemn Christians presumably had as little hesitation as Pliny in sentencing them to death - and as little knowledge of the nature of their crime. 

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Modern scholarship, besides unearthing purer recensions of acta martyrum previously known only in a late and unreliable form, has succeeded in proving that many of the transmitted acta or passiones of pre-Decian martyrs are neither contemporary nor authentic records of what actually happened. Although there may be many other acta martyrum which contain nuggets of fact or which are fictitious compositions based on something authentic, there is a mere handful whose genuineness as a whole has not been (and perhaps never will be) successfully impugned. These must, therefore, rank as primary evidence for the trials of Christians. In this select class, the majority of accounts mention no law or imperial decree or legal enactment of any kind. The emperor, if mentioned, is for the most part mentioned almost incidentally: the Christian is urged to swear by his tyche or genius, to sacrifice for his safety, or is reprimanded for disloyalty to him, or has explained to him the possibility of his pardon. In the descriptions of three trials, however, there occur more substantial references to the emperor, and in one to a law or senatus consultum, which require examination. 

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The relevance of these facts to the problem of the legal basis of the condemnation of Christians ought to be clear. A provincial governor was predisposed to punish those who attacked the established religions, and would do so without waiting for a legal enactment by the Senate or the emperor. Mos maiorum was the most important source of Roman law, and it was precisely mos maiorum in all its aspects that Christians urged men to repudiate. The theory of' national apostasy ' 216 fails as an explanation of the legal basis of the condemna- tion of Christians ; but it comes close to the truth if it is applied, not to the law, but to the attitudes of men. It is in the minds of men, not in the demands of Roman law, that the roots of the persecution of the Christians in the Roman Empire are to be sought.