THE LAWS OF THE CHRISTIAN ROMAN EMPERORS
The rise of Christianity was the first of the three fatal blows that cumulatively had the effect of transforming pederasty from a largely tolerated and sometimes venerated form of love to one despised and vigorously persecuted in most of the world. This article is concerned with how the new Christian intolerance manifested itself through laws issued by the Roman emperors.
From AD 337, when the dying Constantine I converted to Christianity, to which he had granted official toleration and sympathy since 313, all the Roman emperors were Christian with the sole exception of Julian (reigned 361-63), and from 380 Christianity was firmly established as the state religion.
Neither Christianity nor its condemnation of homosexuality came out of the blue, and unsympathetic attitudes had been spreading in the Roman empire for some time, but these had barely influenced the law before.[1] However, as soon as the emperors became Christian, a steady legal persecution began. At first, it was limited in both its legal scope and its enforcement, and not openly Christian in its self-justification, since Christianity was still only the religion of a small minority, but it grew and finally mushroomed in the reign of Justinian I in the 6th century into a harshly enforced outlawry of all male homosexual acts. Of these, pederasty was so much the most common form as to be seen as practically synonymous.[2]
The laws of Justinian remained in force until the final remnant of the empire was snuffed out with the Ottoman conquest of Constantinople in 1453, but their influence on the laws of other mediaeval Christian realms extended as far off as Norway and Portugal, and the persecution they initiated persisted into the modern era.
The laws cited here all applied to the whole of the Roman empire. When there was more than one emperor (whether or not ruling in the same area), the laws were issued in the names of both or all the reigning emperors (“Augusti”). While the jurisdiction of the empire varied and tended to be decreasing, it was the only empire called Roman until the creation of the rival Holy Roman Empire in 800, after which an unofficial term like Byzantine or Eastern needs to be used to distinguish it from the other.
The Law of Constantius II and Constans, 342
This first of the Christian imperial laws attacking Greek love condemned only the passive partner in male homosexual acts.[3] It was incorporated into the Theodosian Code in 438 and then into the Justinian Code (or at least the revised version of that in 534), which gave it lasting endurance.[4] Ironically, Constans, the younger of the two co-emperors who promulgated it, came to an untimely end partly due to his own sexual taste for boys.[5]
The Latin text is from Theodor Mommsen (editor), Theodosiani libri XVI cum constitutionibus Sirmondianis et leges Novellae ad Theodosianum pertinentes, (Berlin, 1905). The translation is by Clyde Pharr in The Theodosian Code and Novels and the Sirmondian Constitutions, a Translation with a Commentary, Glossary and Bibliography (Princeton University Press, 1952) p. 321-2.
 Emperors Constantius and Constans Augustuses to the People. When a man "marries"[6] in the manner of a woman, a "woman" about to renounce men, what does he wish, when sex has lost its significance; when the crime is one which it is not profitable to know; when Venus[7] is changed into another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment.[8] Given on the day before the nones of December at Milan. – December 4. Posted at Rome on the seventeenth day before the calends of January m the year of the third consulship of Constantius Augustus and the second consulship of Constans Augustus. [December 16, 342]. |
 Impp. constantius et constans aa. ad populum. cum vir nubit in feminam, femina viros proiectura quid cupiat, ubi sexus perdidit locum, ubi scelus est id, quod non proficit scire, ubi venus mutatur in alteram formam, ubi amor quaeritur nec videtur, iubemus insurgere leges, armari iura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt vel qui futuri sunt rei. dat. prid. non. dec. mediolano, proposita romae xvii kal. ianuar. constantio iii et constante ii aa. conss. |
The Edict of Valentinian II, Theodosius I and Arcadius, 390
This edict may safely be considered the will of the ardent Christian Theodosius I, the effective ruler in the trio, rather than of the 19-year-old Valentinian II or of Theodosius’s own 13-year-old son Arcadius. It is consistent with his other unprecedented assaults on paganism.[9]
The edict is more explicit than the law of Constantius II and Constans, but possibly narrower in whom it condemned, in that it is not clear whether the passives to be found in male brothels were merely the first who should be seized or the only ones.[10]
The Latin text is taken from Mosaicarum et romanarum legum collatio, edited by Rev. M. Hyamson (Oxford University Press, London, 1913) p. 83. The translation by Louis Crompton in his Homosexuality and Civilization, (Harvard, 2003) p. 134.
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The Theodosian Code, 438
The Codex Theodosianus (Theodosian Code) issued by the co-emperors Theodosius II and Valentinian III, was a compilation of the laws was issued by the Christian emperors, ie. since 312. It was published on 15 February 438, came into force on 1 January 439, and remained so until superseded by the first version of the Code of Justinian in April 529.
Both the foregoing laws repressive of Greek love were included in the ninth book’s title 7 “On the Julian Law on Adultery” (the law in question being one originally instituted in 17 BC, but hitherto having nothing to do with homosexual acts). However, the version included of The Edict of Valentinian II, Theodosius I and Arcadius was amended and very much shortened, and is reproduced here because it was different and superseded the old version. As will be seen, the effective difference was that, by omitting any reference to prostitution, it clearly and unambiguously condemned all passive males to death by burning.
The Latin text is from Theodor Mommsen (editor), Theodosiani libri XVI cum constitutionibus Sirmondianis et leges Novellae ad Theodosianum pertinentes, (Berlin, 1905). The translation is by Clyde Pharr in The Theodosian Code and Novels and the Sirmondian Constitutions, a Translation with a Commentary, Glossary and Bibliography (Princeton University Press, 1952) p. 321-2.
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Ninth Book: 7: On the Julian Law on Adultery 3. Emperors Constantius and Constans Augustuses to the People. |
Liber Nonus: 7. Ad legem iuliam de adulteriis 3. Impp. constantius et constans aa. ad populum. |
[This is the earlier of the two identical versions of this law. Its text has already been given above,
so is not repeated here]
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6. The same Augustuses [Valentinian, Theodosius, and Arcadius] to Orientius, Vicar of the City of Rome. All persons who have the shameful custom of condemning a man's body, acting the part of a woman's, to the sufferance of an alien sex (for they appear not to be different from women), shall expiate a crime of this kind in avenging flames in the sight of the people. Posted in the Forum of Trajan on the eighth day before the ides of August in the year of the fourth consulship of Valentinian Augustus and the consulship of Neoterius. - August 6, 390. This law does not require interpretation. |
6. Iidem aaa. [valent., theodos. et arcad.] orientio vicario urbis romae. omnes, quibus flagitii usus est, virile corpus muliebriter constitutum alieni sexus damnare patientia (nihil enim discretum videntur habere cum feminis), huius modi scelus spectante populo flammis vindicibus expiabunt. pp. in foro traiani viii. id. aug., valentin. a. iv. et neoterio coss. haec lex interpretatione non indiget. |
The Body of Civil Law of Justinian I
In February 528, the devoutedly pious Emperor Justinian I, ruling over an empire that was already mostly Christian, ordered a rewriting of Roman law, The Corpus Juris Civilis (Body of Civil Law). On being finished in 534, it became the sole source of law and, together with the “new laws” later issued by Justinian, remained so until the end of the empire. Originally in Latin, it was revised into Greek after that became the official language in the next century. It was composed of three parts, of which two included laws against male homosexuality.
The Code of Justinian
The Codex Justinianeus (Code of Justinian) was a compilation of imperial laws down to that time. Originally promulgated in April 529 in version since lost, it had to be redone. The lasting revised edition was published on 16 November 534 and took effect on 30 December. An English translation by Bruce Frier, together with the Latin text, was published as The Codex of Justinian. A New Annotated Translation, with Parallel Latin and Greek Text (Cambridge University Press, 2016).
IX 30
[The original Latin of this law of Constantius II and Constans was exactly as given in the foregoing Theodosian Code of 438, so it is not repeated here.]
The Institutes of Justinian
The Institutiones Justiniani (Institutes of Justinian) was a textbook of authoritative writings designed for new students of the law, but which also carried the force of law. They were published on 21 November 533 and promulgated on the following 30 December.
They were devastating for Greek love in that they further expanded the scope of the Lex Julia to punish with death not only the passive partner (presumably only in acts of pedication), but also, for the first time, the active partner, and apparently included all acts of lust between males.
Both the Latin text and the translation are from J.A.C. Thomas, The Institutes of Justinian: Text, Translation, and Commentary (Cape Town, South Africa, 1975) p.335.
IV 18 Of Public Prosecutions
| IV. Then the lex Julia for the suppression of adultery punishes with death not only those who dishonor the marriage-bed of another but also those who indulge their ineffable lust with males. | IV. Item lex Iulia de adulteriis coercendis, quae non solum temeratores alienarum nuptiarum gladio punit, sed etiam eos qui cum masculis infandam libidinem exercere audent. |
The New Laws of Justinian I
The Novellae Constitutiones (New Laws) of Justinian were news laws issued by Justinian after his revised code was issued in 534 and before his death in 565. Apart from his Body of Civil Law, only they could be cited as law.
The Latin texts are from Corpus Iuris Civilis, III (Berlin (1912): Recognovit Rudolfus Schoell, Opus Schoellii morte interceptum absolvit Guilelmus Kroll. The translation is from The Civil Law translated by S. P. Scott (Cincinnati, 1932) XVI 288 & XVII 160.
77
This law was undated, but issued in about 538.[13] Its main significance is that the death penalty for homosexuality was now justified, not with reference to traditional Roman objections to a free male taking the feminine sexual role, but on the explicitly Christian grounds of averting the destruction of the city or state that could ensue from the just wrath of God, the grounds that were to remain typical throughout mediaeval Christendom.
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The Emperor Justinian to the People of Constantinople. PREFACE: We think that it is clear to all men of good judgment that Our principal solicitude and prayer is, that those who have been entrusted to Us by God may live properly, and obtain Divine favor. And as God does not desire the perdition of men, but their conversion and salvation, and as He receives those who, having committed sin, have repented, We invite all Our subjects to fear God and invoke His clemency, for We know that all those who love the Lord and are deserving of His pity do this. CHAPTER I. Therefore, as certain persons, instigated by the devil, devote themselves to the most reprehensible vices, and commit crimes contrary to nature, We hereby enjoin them to fear God and the judgment to come, to avoid diabolical and illicit sensuality of this kind; in order that, through such acts, they may not incur the just anger of God, and bring about the destruction of cities along with their inhabitants; for We learn from the Holy Scriptures that both cities as well as men have perished because of wicked acts of this kind. 1. And as, in addition to those who commit these offences which We have mentioned, there are others who utter blasphemous words, and swear by the sacraments of God, and provoke Him to anger, We enjoin them to abstain from these and other impious speeches, and not swear by the head of God, or use other language of this kind. For if blasphemy when uttered against men is not left unpunished, there is much more reason that those who blaspheme God himself should be deserving of chastisement. Therefore We order all men to avoid such offences, to have the fear of God in their hearts, and to imitate the example of those who live in piety; for as crimes of this description cause famine, earthquake, and pestilence, it is on this account, and in order that men may not lose their souls, that We admonish them to abstain from the perpetration of the illegal acts above mentioned. But if, after Our warning has been given, anyone should continue to commit these offences, he will in the first place render himself unworthy of the mercy of God, and will afterwards be subjected to the penalties imposed by the laws. 2. We order the Most Glorious Prefect of this Royal City to arrest any persons who persist in committing the aforesaid crimes, after the publication of Our warning; in order that this city and the State may not be injured by the contempt of such persons and their impious acts, and inflict upon them the punishment of death. If, after the publication of this law, any magistrates should become aware of such offences, and not take measures to punish them, they shall be condemned by God. And even if the Most Glorious Prefect himself should find any persons doing anything of this kind, and not punish them in accordance with Our laws, he will, in the first place, be subjected to the judgment of God, and afterwards sustain the weight of Our indignation.  |
Idem Aug. Constantinopolitanis. PRAEFATIO: Omnibus hominibus qui recte sapiunt manifestum esse putamus, quia omne nobis est studium et oratio, ut crediti nobis a domino deo bene vivant et eius inveniant placationem, quoniam et dei misericordia non perditionem sed conversionem et salutem vult, et delinquentes qui corriguntur suscipit deus. Propter quod omnes invitamus dei timorem in sensibus accipere et invocare eius placationem, et novimus quia omnes qui deum diligunt et eius misericordiam sustinent hoc faciunt. CAPUT I. Igitur quoniam quidam diabolica instigatione comprehensi et gravissimis luxuriis semetipsos inseruerunt et ipsi naturae contraria agunt, et istis iniungimus accipere in sensibus dei timorem et futurum iudicium et abstinere ab huiusmodi diabolicis et illicitis luxuriis, ut non per huiusmodi impios actus ab ira dei iusta inveniantur et civitates cum habitatoribus earum pereant. Docemur enim a divinis scripturis, quia ex huiusmodi impiis actibus et civitates cum hominibus pariter perierunt. 1. Et quoniam quidam ad haec quae diximus et blasphema verba et sacramenta de deo iurant deum ad iracundiam provocantes, et istis iniungimus abstinere ab huiusmodi blasphemis verbis et iurare per capillos et caput et his proxima verba. Si enim contra homines factae blasphemiae impunitae non relinquuntur, multo magis qui ipsum deum blasphemat dignus est supplicia sustinere. Propterea igitur omnibus huiusmodi praecipimus a praedictis delictis abstinere et dei timorem in corde percipere et sequi eos qui bene vivunt. Propter talia enim delicta et fames et terrae motus et pestilentiae fiunt, et propterea admonemus abstinere ab huiusmodi praedictis illicitis, ut non suas perdant animas. Sin autem et post huiusmodi nostram admonitionem inveniantur aliqui in talibus permanentes delictis, primum quidam indignos semetipsos faciunt dei misericordia, post haec autem et legibus constitutis subiciuntur tormentis. 2. Praecepimus enim gloriosissimo praefecto regiae civitatis permanentes praedictis illicitis et impus actibus et post haec nostram admonitionem et comprehendere et ultimis subdere suppliciis, ut non ex contemptu talium inveniatur et civitas et respublica per hos impios actus laedi. Si enim et post hanc nostram suasionem quidam tales invenientes hos subtercelaverint, similiter a domino deo condemnabuntur. Et ipse enim gloriosissimus praefectus in invenerit quosdam tale aliquid delinquentes et vindictam in eos non intulerit secundum nostras leges, primum quidem obligatus erit dei iudicio, post haec autem et nostram indignationem sustinere.  |
141
This law was dated 15 March 559. It is critical for understanding its context that the fear expressed in the foregoing New Law 77 that homosexual acts might provoke God into destroying the city or state through pestilence or earthquake appeared to have been realised in the meantime. The Plague of Justinian, which broke out in 541, was matched only by the outbreak of the same disease, the Black Death of the 14th century, in its severity, killing several thousand people a day during its early peak in Constantinople and eventually up to a quarter of the population of the empire. Then on 14 December 557 a devastating earthquake almost completely razed Constantinople to the ground and was followed a few months later by a recurrence of the plague.
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PREFACE: As we are always in need of the benevolence and kindness of God, and above all, at this time, when we have provoked Him to anger in many ways, on account of the multitude of our sins, and although He threatens us with the penalties we deserve, He, nevertheless, manifests his clemency to us, and has deferred the exercise of his wrath to some future time, expecting that we will manifest repentance, for He is more desirous for Our conversion and salvation than for Our death. Wherefore it would not be just for us to treat with contempt His abounding kindness, His tolerance, and His infinite patience, lest, avoiding repentance, our hearts may become hardened, and We may accumulate His anger upon our heads, on the day of His vengeance. But while we attempt to avoid committing wicked actions, and cherishing improper desires, there are persons who are guilty of abominable offences, which are deservedly detested by God. We have reference to the corruption of males, a crime which some persons have the sacrilegious audacity to perpetrate. CHAPTER I: We know, from the study of the Holy Scriptures, that God, in order to punish such persons, visited His wrath upon those who formerly inhabited the City of Sodom, and caused its territory to be consumed, even to this day, by an inextinguishable fire; and in this manner He informs Us that We should abhor conduct of this description, which is contrary to the laws of nature. We also know what the Divine Apostle said concerning it, and also what provisions Our laws have promulgated with reference thereto. Wherefore it is proper that all those who are influenced by the fear of God should abstain from such impious and criminal acts which even are not committed by beasts, and that those who have not yet perpetrated them may hereafter be deterred from doing so. Hence those who are given to this species of vice must hereafter not only refrain from sinning, but also show that they are penitent; prostrate themselves before God; confess their faults in the presence of the Most Blessed Patriarch, and (as has already been stated) they will reap the fruits of their repentance; so that the Almighty in his indulgence, and on account of the wealth of His compassion, may render Us worthy of His kindness; that We may all give thanks for the salvation of those who are penitent; and that the magistrates, by prosecuting the guilty, may conciliate God who is deservedly incensed against Us. And, indeed, We consciously and wisely beseech to bring to repentance those who defile themselves with filthy practices of this kind, so that there will no longer be occasion for Us to prosecute such offences. We notify all persons who may hereafter be guilty of this crime that if they do not cease to sin, and do not confess their guilt to the Most Holy Patriarch or provide for their own salvation, and propitiate God on the holy festival days, they will render themselves liable to terrible chastisement, and will not, in the future, be deserving of pardon. We shall not neglect to adopt severe measures against such as do not manifest their repentance on the most holy festival days, and who persist in their wickedness, for if We should show any negligence in this respect, We will bring down the wrath of God upon Us, and by closing Our eyes will become accomplices in a crime sufficiently atrocious to arouse the anger of Heaven against all persons. This Edict shall be communicated to the citizens of Constantinople. Given at Constantinople, on the Ides of March, during the thirty-second year of the reign of Our Lord the Emperor Justinian, and the eighteenth year after the Consulate of Basil. |
PRAEFATIO: Cum semper omnes clementia et benignitate dei indigemus, tum maxime nunc, ubi propter multitudinem peccatorum nostrorum multis eum modis iratum reddidimus. Atque minatus est quidem et ostendit, quibus suppliciis secundum peccata nostra digni essemus: tamen clementer egit iramque reiecit paenitentiam nostram expectans, ut qui nolit mortem nostram peccatorum, sed conversionem et vitam. Itaque non par est omnino nos contemnere copias benignitatis et patientiae et indulgentiae clementis dei, ne per durum et a paenitentia alienum cor nostrum ipsi nobis accumulemus iram in die irae, sed omnes quidem improbis studiis et actionibus abstinere, maxime vero eos qui in abominabili et merito exosa deo actione impia computruerunt : loquimur autem de stupro masculorum, quod multi nefarie committunt mares cum maribus turpitudinem perpetrantes. 1. Scimus enim ex sacris scripturis edocti, quale deus iustum supplicium iis qui Sodomis olim habitarunt, propter hunc in commixtione furorem intulerit, adeo ut in hunc usque diem regio illa inextincto igni ardeat, cum deus per hoc nos erudiat, ut impiam istam actionem aversemur. Rursum scimus, qualia de his talibus sanctus apostolus dicat, et qualia rei publicae leges praecipiant. Itaque omnes timori dei intenti abstinere debent impia et nefaria actione, quae ne a brutis quidem animalibus invenitur commissa ; et qui quidem nullius eiusmodi rei sibi conscii sunt, in futurum quoque tempus sibi caveant, qui autem hoc affectu iam computruerunt, non solum in posterum ab eo desistant, sed etiam meritam paenitentiam agant et deo se submittant, et beatissimo patriarchae morbum denuntient et sanationis rationem accipiant, et secundum id quod scriptum est fructum ferant paenitentiae, ut clemens deus pro copia misericordiae suae nos quoque clementia sua dignetur, et omnes ei gratias agamus pro eorum qui paenitentiam agunt salute: quos nunc quoque magistratus persequi iussimus deum conciliantes, qui merito nobis irascitur. Et nunc quidem ad sacrorum dierum religionem respicientes benignum deum rogamus, ut qui in tali impiae huius actionis coeno volutantur, ita ad paenitendum agantur, ut alia rei persequendae occasio nobis non iam praebeatur. Denuntiamus autem omnibus deinceps qui eiusmodi alicuius peccati sibi conscii sunt, nisi et peccare desierint et se ipsi beatissimo patriarchae deferentes propriae saluti prospexerint, pro impiis eiusmodi actionibus deum intra sanctos dies festos placantes, acerbiores sibi poenas arcessituros esse, quippe qui nulla in posterum venia digni sint. Neque enim remittetur neque neglegetur rei inquisitio et emendatio adversus eos qui intra sanctos dies festos se non detulerint, vel etiam in eadem impia actione perseveraverint: ne per neglegentiam hac in re commissam deum contra nos irritemus, si actionem tam impiam et prohibitam praetermittamus quaeque idonea sit ad bonum deum in omnium perniciem irritandum. Proponatur Constantinopolitanis civibus nostris. Dat. id. Mart. CP. imp. dn. Iustiniani pp. Aug. anno XXXII. post cons. Basilii vc. anno XVIII. |
[1] Aurelius Victor reported that the emperor Philip took “measures to abolish the practice of male prostitution” in AD 248, but that they were totally ineffective (On the Caesars 28). This was the only pre-Christian Roman attempt to restrict men from having sex with boys who were not freeborn Roman citizens. Philip was sympathetic to Christianity, so much so that in the following century it was even claimed that he had been a Christian.
[2] See, for example, Prokopios's Secret History of Justinian’s reign, which always assumes that male homosexual acts are pederastic.
[3] “Apparently the authors of this decree hesitated to break too suddenly with Roman tradition by punishing the “masculine” partner and felt that public opinion would more readily support strong measures against the despised adult passives.” (Homosexuality and Civilization, Harvard, 2003, p. 133).
[4] “When these codes [the Theodosian and Justinian] were revived in Italian law schools in the early Middle Ages, the law of 342, cited in traditional legal style by its two opening words as the Lex cum vir, was the statute regularly invoked in legal texts to justify the death penalty for both partners in male relations." (Louis Crompton, Homosexuality and Civilization, Harvard, 2003, p. 133).
[5] See Aurelius Victor, On the Caesars 41 and Zosimus, New History XI 42 i-ii.
[6] On “ ‘marries’ ” as the translation of “nubit”, Louis Crompton remarks, “the consensus is that the term is merely a euphemism for sexual relations” (Homosexuality and Civilization, Harvard, 2003, p. 133).
[7] “ ‘Venus’ here means simply “sexual intercourse,” a sense it bears in poets like Virgil and Ovid.” (Louis Crompton, Homosexuality and Civilization, Harvard, 2003, p. 133).
[8] “ ‘Exquisite punishment’ probably implies the death penalty, though the reference to the sword may be metaphorical.” (Louis Crompton, Homosexuality and Civilization, Harvard, 2003, p. 133).
[9] Most notably, Theodosius issued an edict against sacrifices which encouraged Christian fanatics to engage in widespread destruction of pagan temples, including some of the most beautiful buildings in the world, the fire tended for centuries in Rome by the Vestal Virgins was extinguished, and he abolished the Olympic Games held for nearly twelve centuries.
[10] The reasoning given for the drastic action to be taken is entirely founded on the harm done by effeminacy rather than the commercial aspect of prostitution, so the reason for concentrating or restricting it to male prostitutes was presumably that they were more brazen and more easily apprehended.
[11] Note that like the earlier legislation, but unlike the more enduring legislation of Justinian to come, the justification given has nothing to do with God or the punishment of Sodom, but appeals to old-fashioned Roman revulsion with effeminacy. However good a Christian Theodosius was, most people were still pagan in his reign.
[12] Louis Crompton commented on this : “Some of these wretches may indeed have been burned at the stake for the edification of a newly Christianized public. Since they would have come from the lowest and most scorned ranks of society, they could expect little sympathy.” (Homosexuality and Civilization, Harvard, 2003, p. 135).
[13] Louis Crompton, Homosexuality and Civilization (Harvard, 2003) p. 146 says it “appeared in 538”. The preceding law was issued on 15 October 538 and the following one in 542.
Comments
If you would like to leave a comment on this webpage, please e-mail it to greek.love.tta@gmail.com, mentioning either the title or the url of the page so that the editor can add it.
Helen, 26 June 2020
This is a most remarkable collection of texts, for which I am very grateful. My only suggestion concerns the still from the film Agora. This film is historically wildly inaccurate in many ways, but most pertinent here is the fact that, though the Serapeum was built as a sort of "daughter" library to the main library, it was no longer used for that purpose at the time of its destruction. It is also not clear how it ended up being destroyed. A Christian mob has been blamed by Eunapius, but other accounts, including letters to and from Theodosius, suggest it was demolished after gangs of pagans had tortured and murdered Christians in it. The pagans were pardoned, but all pagan images were to be destroyed.