Perjury and False Witness in Late Antiquity and the

by

Nicholas Brett Sivulka Wheeler

A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy

Centre for Medieval Studies University of Toronto

© Copyright by Nicholas Brett Sivulka Wheeler 2018

Perjury and False Witness in Late Antiquity and the Early Middle Ages

Nicholas Brett Sivulka Wheeler

Doctor of Philosophy

Centre for Medieval Studies University of Toronto

2018 Abstract

This dissertation, ‘Perjury and False Witness in Late Antiquity and the Early Middle Ages’, investigates changing perceptions of perjury and false witness in the late antique and early medieval world. Focusing on primary sources from the -speaking, western and former empire, approximately between the late third and seventh centuries CE, this thesis proposes that perjury and false witness were transformed into criminal behaviours, grave sins, and canonical offences in Latin legal and religious writings of the period.

Chapter 1, ‘Introduction: The Problem of Perjury’s Criminalization’, calls attention to anomalies in the history and historiography of the oath. Although the oath has been well studied, oath violations have not; moreover, important sources for medieval culture – Roman law and the

Christian – were largely silent on the subject of perjury. For classicists in particular, perjury was not a crime, while oath violations remained largely peripheral to early

Christian ethical discussions.

Chapter 2, ‘Criminalization: Perjury and False Witness in Late Roman Law’, begins to explain how this situation changed by documenting early possible instances of penalization for perjury. Diverse sources such as acts, provincial law manuals, and select imperial ii

and post-imperial legislation suggest that numerous cases of perjury were criminalized in practice.

Chapter 3, ‘Peccatization: Perjury and False Witness in Latin Patristic Literature’, investigates analogous developments in the Latin Christian church. Chapter 4, ‘An Early Medieval Case Study:

Perjury and False Witness in the Visigothic Church and Kingdom’, studies the effects of these developments on one early medieval society.

A concluding chapter suggests a class-based dimension to these changes; interrogates the nature of perjury; and proposes further avenues for research. Conceived as a thesis in the history of law and religion, this dissertation doubles as an investigation of a prominent feature of late antique and early medieval culture.

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Acknowledgements

No dissertation is the product of a single individual, but is the fruit of numerous people working together; and that has certainly been true in this case. Without the collaboration and support of professors, family, and friends, my vision for ‘Perjury and False Witness in Late

Antiquity and the Early Middle Ages’ might never have been achieved, and to these people I owe a tremendous debt of gratitude.

In particular, I would like to thank my supervisor, Dr Nicholas Everett, and the other members of my supervisory committee, Dr Lawrin Armstrong and Dr Joseph Goering, for the support and encouragement which they frequently showed to me over the course of my graduate studies. Dr Ian Wood of the University of Leeds, whose own research helped to inspire this thesis, very generously agreed to serve as my external examiner, and his helpful critiques and suggestions will prove useful as I carry the project forward. Dr Giulio Silano, my so-called ‘internal external’, first suggested to me the crucial role of the Roman emperor in the development of western perjury norms, and the stress I have laid on this topic is a reflection of the conversation we had together.

I would also like to thank Dr Jo Ann Hoeppner Moran Cruz of Georgetown University, my undergraduate supervisor, who first encouraged me to pursue graduate work in medieval history.

Special thanks are likewise due to my parents and to an anonymous benefactor, without whose financial support at various times the completion of this degree would have been impossible. My roommates, Kristin Ostensen and Nick Smidstra, lent invaluable emotional support by their presence and their patience, especially during the critical final months of writing and editing. My spiritual director, Rev. Dr Gilles Mongeau, SJ, helped to keep me sane throughout, encouraging me to remember and to hold fast to those things which I knew to be good and true.

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Finally, I would like to thank the ‘friends of my heart’, my Toronto ‘family’ (whoever and wherever they may be) who have formed the most consistent and in many ways the most important part of my life over the last ten years. Ryan Buchanan Allen, Christopher Berard, Emilie Anne

Brancato, John Cahill, Nathaniel Jote, Masha Simakova, and David Wagschal has each helped to shape my life (and this dissertation) in his or her own way, and to them collectively and individually I owe more than I can say.

This dissertation is respectfully dedicated to Sheila, with whom it began.

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Table of Contents

Acknowledgements……………………………………………………………………………….iv

Table of Contents…………………………………………………………………………………vi

Chapter 1 Introduction: The Problem of Perjury’s Criminalization………………………….1

§ 1 The Silence of Roman Law………………………………………………13

§ 2 The Silence of the New Testament………………………………………23

§ 3 Definitions………………………………………………………………..33

Chapter 2 Criminalization: Perjury and False Witness in Late Roman Law………………..40

§ 4 Military and Administrative Perjuries: A Different Paradigm…………..50

§ 5 Perjury on the Emperor: From the Severan Statute to The Opinions of Paul……………………………………………………………………....68

§ 6 Perjury, False Witness, and Forgery……………………………………..86

Chapter 3 Peccatization: Perjury and False Witness in Latin Patristic Literature……….….97

§ 7 Perjury and False Witness in the Life and Thought of of Stridon…………………………………………………………………..107

§ 8 Perjury and False Witness in the Life and Thought of ……………………………………………………………………135

Chapter 4 An Early Medieval Case Study: Perjury and False Witness in the Visigothic Church and Kingdom…………………………………………………………...156

§ 9 The Evidence of the Documents: LV 12.3.15 () and Perjury’s Infernalization…………………………………………………………..166

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§ 10 The Evidence of the Canons: Perjury, False Witness, and Conspiracy at the Sixth Council of Toledo (a. 638)………………………………...…195

Chapter 5 Epilogue………………………………………………………………………...215

A Note on the Text, Abbreviations, and Bibliography…………………………………………229

§ 11 Abbreviations…………………………………………………………...229

§ 12 Primary Sources………………………………………………………...230

§ 13 Secondary Sources……………………………………………………...243

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Chapter 1 Introduction: The Problem of Perjury’s Criminalization

King Chilperic went home to his lodging. He sent to us a book of the canons, with a newly copied four-page insert, which contained what appeared to be apostolic canons, including the following words: ‘A bishop convicted of murder, adultery or perjury shall be expelled from his bishopric.’ While these were being read out, Praetextatus stood as if struck dumb.

Gregory of Tours, Histories1

In 577 CE, near the northern periphery of the post-Roman world, one of the oldest Christian legal texts to address the topic of perjury made a surprise appearance in the trial of a sitting bishop, Praetextatus of Rouen. According to the Gallo-Roman bishop and historian, Gregory of Tours, Praetextatus had fallen afoul of the Frankish king Chilperic I, who brought forward a copy of the text in question: usually identified with The Apostolic Canons, a fourth-century canonical collection originating in the Greek-speaking east.2 Addressing a wide variety of topics of interest to church councils like the one which tried Praetextatus, The Apostolic Canons sanctioned a number of specific sins and offences, including perjuries, about which Praetextatus was questioned.3 The bishop’s trial, which took place in Paris, lasted several days and culminated in the production of the canon quoted above; following his conviction, Praetextatus was removed from his see and exiled to an island.4 Gregory, an eyewitness to and participant in these proceedings, suggested that the bishop’s punishment had exceeded canonical measure. According to the historian, King Chilperic asked the bishops to formally curse and excommunicate as well as

1 Gregory of Tours, Historiae, 5.18, ed. Bruno Krusch and Wilhelm Levison, MGH SS rer. Mer. 1/1 (repr., Hanover: Hahn, 1951), 222–3: ‘Ipse vero ad metatum discessit, transmittens librum canonum, in quo erat quaternio novus adnixus, habens canones quasi apostolicus, continentes haec: Episcopus in homicidio, adulterio et periurio depraehensus, a sacerdotio divillatur. His ita lectis … Praetextatus staret stupens’ (tr. Lewis Thorpe, Gregory of Tours: The History of the [London: Penguin, 1974], 281). 2 C. H. Turner, Ecclesiae Occidentalis Monumenta Iuris Antiquissima: Canonum et Conciliorum Graecorum Interpretationes Latinae, i (Oxford: The Clarendon Press, 1899), 33; Aram Mardirossian, La collection canonique d’Antioche: Droit et hérésie à travers le premier recueil de législation ecclésiastique (IVe siècle), Monographies 34 (Paris: Collège de France, 2010), 65–72. 3 Gregory of Tours, Historiae, 5.18. 4 Gregory of Tours, Historiae, 5.18, 7.16. 1

depose and banish him: ‘King Chilperic demanded … that Psalm 108, which contains the maledictions against Judas Iscariot … be recited over his head [and] that he … be excommunicated forever. … I myself spoke against these conditions, for they were contrary to the king’s promise that nothing should be done that was not in the canons.’5

Although this episode is brief, Gregory’s narrative sheds light on perceptions of wrongdoing in the late antique and early medieval church, especially with respect to perjury, the third offence in the canon quoted by Gregory. While perjuries were somewhat incidental to the narrative as a whole, Gregory’s quotation of the canon condemning Praetextatus illustrates how early medieval authorities had come to think of these offences in particular. According to the historian, at least three sins and offences – murder, adultery, and perjury (homicidium, adulterium, and periurium) – were considered serious enough to justify removing a bishop from his office.6 Of the three offences in this list, only the first two had been crimes in classical Roman law. Most homicides were prosecuted under a republican-era statute, the lex Cornelia de sicariis et veneficis on ‘cutthroats’ and ‘poisonings’; while adulteries could be prosecuted under a statute from the reign of (r. 27 BCE–14 CE), the lex Iulia de adulteriis.7 At the same time, all three offences were plausibly condemned in the Decalogue of Judaeo-Christian tradition. Here again, the prohibitions on murder and adultery were relatively straightforward,8 yet the Second or Third Commandment prohibiting the misuse of God’s name might be interpreted as a prohibition of perjuries also.9 In succeeding centuries, expositors of Frankish canon law like Theodulf of Orléans, Hincmar of Rheims, and Ansegisus of Luxeuil all applied these words, ‘Thou shalt not take the name of the Lord thy God in vain’, to false and violated oaths, whose terms frequently called upon

5 Gregory of Tours, Historiae, 5.18, ed. Krusch and Levison, MGH SS rer. Mer. 1/1, p. 223: ‘[P]etiit rex, ut … centisimus octavus psalmus, qui maledictionibus Scarioticas continet, super caput eius recitaretur aut … ne in perpetuo communicaret. Quibus condicionibus ego restiti, iuxta promissum regis, ut nihil extra canones gereretur’ (tr. Thorpe, Gregory, 281). 6 The fact that Gregory seems to have cast doubt on the authenticity of the canonical collection, referring to ‘what appeared to be apostolic canons’, canones quasi apostolicos (see n. 1 above), only serves to underscore the point. Gregory himself appealed to the principles which the canon embodied (see n. 5 above), and Praetextatus was condemned. 7 M. H. Crawford, ed., Roman Statutes, The Bulletin of the Institute of Classical Studies Suppl. 64, ii (London: The Institute of Classical Studies, 1996), nos 50 and 60, respectively. 8 Exod. 20:13–14, Deut. 5:17–18. 9 Exod. 20:7, Deut. 5:11. 2

God as witness.10 Nevertheless, whatever the exact legal and scriptural bases for the threefold classification described in Gregory’s Histories, one observation seems clear. The triad homicidium–adulterium–periurium referred to sins and offences of the highest order, whose gravity was apparent to those in attendance at Praetextatus’s trial.11

Remarkably, however, a very different perjury norm had been expressed just fifty years earlier, at the opposite end of the Mediterranean. In 534, the eastern emperor Justinian (r. 527–65 CE) brought forth his second and revised edition of The Justinianic Code, which incorporated the legislation of second- and third-century Roman emperors in addition to more recent legislation. With respect to perjury, the third offence in Gregory’s version of The Apostolic Canons, an imperial statute incorporated by Justinian’s editors appeared to place this offence entirely outside the bounds of human judgment. According to the decision of a late classical emperor, Severus Alexander (r. 222–35 CE), perjuries were to be punished by God or the gods alone: ‘The bond of an oath despised has God for a sufficient avenger.’12 Furthermore, certain types of punishment, one of which was inflicted on Praetextatus – corporal punishment – were specifically prohibited.13 Separated by half a century, Gregory’s quotation of The Apostolic Canons and Justinian’s quotation of the statute of Severus Alexander evince markedly differing perceptions of perjury. For the bishop of Tours, and for the norms which he was reflecting, perjury was a serious, humanly justiciable offence, ranking with murder and adultery and subject to discipline in both secular and ecclesiastical courts.14 For the east Roman emperor, by contrast – perhaps reflecting the

10 Theodulf of Orléans, Carmina, 28.91–2; Hincmar of Rheims, De divortio Lotharii regis et Theutbergae reginae, 6; Collectio capitularium Ansegesi, 1.61. Cf. Exod. 20:7, Deut. 5:11: ‘non adsumes (usurpabis) nomen Domini Dei tui in vanum (frustra)’. 11 Cf. n. 1 above: ‘Praetextatus staret stupens.’ The rough equivalence of these offences in Gregory’s mind is strengthened by the possibility that he was quoting the The Apostolic Canons from memory, accounting for discrepancies between Gregory’s version of the text and that which became standard in medieval canon law (Turner, Ecclesiae Occidentalis Monumenta, 33; cf. Gratian, Decretum, D. 81, c. 12). For conciliar condemnation of serious sin in the early church, see e.g. Jean Gaudemet, Église et cité: Histoire du droit canonique (Paris: Montchrestien, 1994), 114. 12 CJ 4.1.2 (a. 223): ‘Iurisiurandi contempta religio satis deum ultorem habet.’ 13 CJ 4.1.2 (a. 223): ‘periculum autem corporis … inferri non placet’; cf. Gregory of Tours, Historiae, 5.18, ed. Krusch and Levison, MGH SS rer. Mer. 1/1, p. 223: ‘gravissime caesus’. 14 For secular punishments in Gregory’s , cf. Pactus legis Salicae, 48.2. 3

conservative opinions of his lawyers?15 – perjury was not a justiciable offence at all, not to be classed with homicides and adulteries and not to be subjected to specific punishments. How, therefore, did such competing norms interact, and what norms actually governed perjuries and false testimony in the late antique and early medieval world? Why was a religious and ritual offence, such as the false or violated oath, classed with crimes like homicide and adultery in the first place?16

In the present dissertation, I will argue that numerous perjuries began to be treated as criminal offences much earlier than has generally been recognized. Although this treatment may have conflicted with classical principles articulated in The Justinianic Code, numerous oath violations were perceived as subject to human punishment from as early as the end of the third century CE.17 As we shall see in the next chapter, perjuries invited a combination of judicial correction and intensified social criticism, at least in the Latin-speaking, western half of the Roman empire, and particularly when these offences were committed by certain classes of person: notably soldiers, imperial administrators, and the members of town councils.18 Furthermore, a parallel movement can be detected in the incipient canonical and penitential discipline of the Latin Christian church. As increasing numbers of aristocratic Romans entered the ranks of the Christian clergy, from the last quarter of the fourth century onward,19 the Christian literary interest in perjuries and false testimony exploded. As we shall see in the chapter following, patristic writers like Jerome and Augustine wrote about these offences with a newfound frequency and severity, consistently classifying these criminalized behaviours as grave sins and canonical offences.20 At length, in the ensuing centuries, this synthesis of late Roman and patristic ideas about perjury and false witness was inherited by the greatly altered societies of the Latin Middle Ages. In a final pair

15 See pp. 13–14 below. 16 For the partial availability of the The Justinianic Code to sixth-century western churchmen, see Giuseppe Damizia, ‘Il Registrum epistolarum di S. Gregorio Magno ed il Corpus Iuris Civilis’, Benedictina 2 (1949): 196–226. 17 On the transformations of this period, see e.g. Simon Corcoran, The Empire of the Tetrarchs: Imperial Pronouncements and Government, AD 284–324 (Oxford: The Clarendon Press, 1996). 18 See ch. 2, ‘Criminalization: Perjury and False Witness in Late Roman Law’, pp. 40–96 below. 19 Cf. Peter Brown, Through the Eye of a Needle: Wealth, the Fall of , and the Making of in the West, 350–550 AD (Princeton: Princeton University Press, 2012), xxii. 20 See ch. 3, ‘Peccatization: Perjury and False Witness in Latin Patristic Literature’, pp. 97–155. 4

of chapters, we will see how church councils like King Chilperic’s synod elaborated what may be called a ‘law of perjury’ for the first time in Latin Mediterranean history, producing many more relevant legal texts than those to survive from previous centuries.21

Surprisingly, this problem of perjury’s criminalization has never been adequately addressed, by either legal or religious historians. While both have written extensively on oaths,22 the subject of perjury itself has attracted comparatively little attention. In the fields of late antique and early medieval history, just a handful of recent studies have appeared which are dedicated to our topic exclusively. In 2014, a study by the early medieval legal historian Stefan Esders documented the diffusion of one ’s cult, which came to be associated with the detection and punishment of perjuries in the Latin-speaking west. This cult of St Polyeuctus, a third-century Armenian martyr, was promoted by Gregory of Tours’s royal patron (and King Chilperic’s ), King Sigibert I of (r. 561–75), and featured treaties sworn in the saint’s name and churches dedicated in his honour.23 In 2008, meanwhile, a study of Visigothic perjuries by the Merovingian specialist Bruno Dumézil appeared in the Collège de France’s volume on oath taking, Oralité et lien social: Parole donnée, foi jurée, serment. Surveying the perjury legislation of the Visigothic church and kingdom, Dumézil argued that Iberian approaches to perjury and false witness were uniquely conditioned by the circumstances under which the Visigothic monarchy embraced Christianity.24 If we turn our attention back to the ancient sources of late antique and early medieval culture, the number of studies dedicated to our topic does not noticeably increase. In 1995, the New Testament historian John T. Fitzgerald argued that the earliest Christian sources on perjury and false witness are few and far between, and that these sources do not

21 See ch. 4, ‘An Early Medieval Case Study: Perjury and False Witness in the Visigothic Church and Kingdom’, pp. 156–214, and ch. 5, ‘Epilogue’, pp. 215–28. 22 See pp. 34–9 below. 23 Stefan Esders, ‘“Avenger of All Perjury” in Constantinople, Ravenna, and Metz: Saint Polyeuctus, Sigibert I, and the Division of Charibert’s Kingdom in 568’, in Andreas Fischer and Ian Wood, eds, Western Perspectives on the Mediterranean: Cultural Transfer in Late Antiquity and the Early Middle Ages, 400–800 AD (London: Bloomsbury, 2014), 17–40. 24 Bruno Dumézil, ‘Le crime de parjure dans l’Espagne wisigothique du VIIe siècle’, in Marie-France Auzépy and Guillaume Saint-Guillain, eds, Oralité et lien social au moyen âge (Occident, Byzance, Islam): Parole donnée, foi jurée, serment, Monographies 29 (Paris: Collège de France, 2008), 27–42. 5

substantially differ from their classical, non-Christian counterparts.25 In 2011, the classicist J. Albert Harrill partly disagreed. He holds that an episode from The , the of Ananias and Sapphira,26 evinces early Christian interest in divine justice for the perjured.27

To be sure, this handful of studies does not exhaust a secondary bibliography on ancient and early medieval perjuries. Very many historians have commented on these offences, yet their comments tend to be brief and descriptive. Amongst scholars of medieval history, for example, the perjury anecdotes of Gregory of Tours are exceptionally well known, and they are cited almost routinely.28 Moreover, this tendency to cite Gregory’s works has had a number of persistent consequences, one of which is chronological. Despite the availability of an abundance of late antique evidence,29 historians of the European Middle Ages rarely begin their discussions of perjury to Gregory’s career. Esders and Dumézil both focus on the sixth and seventh centuries, while treatments of perjury within longer works prove to be no exception. A 1989 monograph by Lothar Kolmer, Promissorische Eide im Mittelalter, includes a chapter on ‘oathbreaking’, or Eidbruch, yet largely neglects any pre-sixth century sources.30 A further consequence to this focus on Gregory has been a disproportionate emphasis on the supernatural aspects of perjury, which the bishop of Tours’s anecdotes tend to emphasize. In a typical story, an unidentified perjuror is struck dumb in a church at Tours: ‘Once he had revived … he publicly confessed the deception. … I myself saw men from Tours commit perjury in that spot. They were

25 John T. Fitzgerald, ‘The Problem of Perjury in Greek Context: Prolegomena to an Exegesis of Matthew 5:33; 1 Timothy 1:10; and 2.3’, in L. Michael White and O. Larry Yarbrough, eds, The Social World of the First Christians: Essays in Honor of Wayne A. Meeks (Minneapolis: Fortress Press, 1995), 156–77. 26 Acts 5:1–11. 27 J. Albert Harrill, ‘Divine Judgment Against Ananias and Sapphira (Acts 5:1–11): A Stock Scene of Perjury and Death’, The Journal of Biblical Literature 130/2 (2011): 351–69. 28 See e.g. John H. Corbett, ‘The Saint as Patron in the Work of Gregory of Tours’, The Journal of Medieval History 7/1 (1981): 7; Kevin Uhalde, ‘Proof and Reproof: The Judicial Component of Episcopal Confrontation’, Early Medieval Europe 8/1 (1999): 7; and Alexander Callander Murray, ‘Chronology and the Composition of the Histories of Gregory of Tours’, The Journal of Late Antiquity 1/1 (2008): 182 n. 81. For a list of Gregory’s references to oaths and perjuries, see Ian Wood, ‘Disputes in Late Fifth- and Sixth-Century : Some Problems’, in Wendy Davies and Paul Fouracre, eds, The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986), 15–16 nn. 51–2. 29 See chs 2–3, ‘Criminalization’ and ‘Peccatization’, pp. 40–155 below. 30 Indeed, the earliest sources cited by Kolmer in connection with perjury turn out to be Gregory of Tours and certain Merovingian and Visigothic church councils: Lothar Kolmer, Promissorische Eide im Mittelalter, Regensburger historische Forschungen 12 (Kallmünz: M. Lassleben, 1989), 315–17 nn. 8–15, 324 n. 67, 325 nn. 70–1. 6

condemned by divine judgement so severely that within a year they had expired from the world.’31 Possibly reflecting statements of this kind, one legal historian has stated simply that medieval oath taking was ‘considered credible because, in a case of perjury, the party was risking damnation at the Last Judgment’.32 What such a belief entailed, when and where this belief developed, and how it related to other norms which were available are all left unexplored.

Furthermore, this focus on the evidence of Gregory of Tours has also had the effect of subtly prolonging nineteenth- and early twentieth-century assumptions regarding the national or ethnic character of oaths and perjuries. While Gregory himself is usually thought of as a Gallo- Roman writer,33 the historian was writing in a Frankish political environment – to which the representatives of nineteenth-century German historiography attributed perjury’s criminalization. Indeed, the study which has arguably exerted the longest lasting influence on our field may be that of the pioneering Austro-German criminologist, Franz von Liszt, whose 1876 Meineid und falsches Zeugniss sharply differentiated between alternative conceptions of perjury in Roman and Germanic law. According to Liszt, oath violations were not and even could not be penalized during any phase of the Roman empire, ‘whose statesmen handled religion … with impartial wisdom’.34 Rather, criminal-type penalties for perjury were a unique invention of medieval Francia, operating under the influence of Christian moral theology – particularly by the eighth and ninth centuries:

To the German Middle Ages belonged the idea (developed to its remotest consequences) that the state was the advocate of the church, and that it was the most fitting bearer of the ‘temporal sword’, with which to avenge iniquity befalling religion. … To the Christian it sounded like blasphemy … [w]hen [a Roman

31 Gregory of Tours, In gloria martyrum, 19, ed. Bruno Krusch, MGH SS rer. Mer. 1/2 (repr., Hanover: Hahn, 1969), 50: ‘Ad se autem reversus dolum … publice patefecit. Vidimus enim et nos quosdam de Turonicis in loco eodem periurasse, qui ita divino iudicio condemnati sunt, ut in ipsius anni curriculo finirentur a saeculo’ (tr. Raymond Van Dam, Gregory of Tours: Glory of the Martyrs, Translated Texts for Historians 3 [Liverpool: Liverpool University Press, 1988], 38–9). 32 Mathias Schmoeckel, ‘Procedure, Proof, and Evidence’, in John Witte, Jr, and Frank S. Alexander, eds, Christianity and Law: An Introduction (Cambridge: Cambridge University Press, 2008), 159–60. 33 See e.g. Martin Heinzelmann, ‘Gregory of Tours and His Family’, in idem, Gregory of Tours: History and Society in the Sixth Century, tr. Christopher Carroll (Cambridge: Cambridge University Press, 2001), 1–35. 34 ‘[D]essen Staatsmänner mit unbefangener Klugheit die Religion … handhabten’ (Franz von Liszt, Meineid und falsches Zeugniss: Eine Strafrechts-geschichtliche Studie [Vienna: Manz, 1876], 3). 7

emperor] said that ‘insults to the gods are the gods’ concern’ [cf. Tacitus, Annales, 1.73.4].

… The principle that perjury was sacrilege against the omniscient God of Truth, an outrage to the divine majesty; that it had to be understood as a delictum mixtum, a religious offence to be punished by the state … – the principle which has ruled the entire Middle Ages and by far the greatest part of modernity – first attained its entrenched, inflexible dominion during the Carolingian period.35

Importantly, Liszt’s conclusions were echoed in a modified form by Heinrich Brunner, whose monumental Deutsche Rechtsgeschichte appeared in 1887–92. Like Liszt, Brunner traced the origins of the oath and related rituals to ethnic, ‘Indo-Germanic foundations’.36 Also for Brunner, serious legal penalties for perjury were characteristic of medieval Francia, especially during the Carolingian period.37

Today, Liszt and Brunner’s national explanations for perjury’s criminalization no longer seem persuasive. As Gregory’s Histories and The Justinianic Code both illustrate, denizens of the early medieval world drew on non-Germanic sources for many of their ideas about perjury and false witness – and in the case of the Severan statute, on sources which were much more ancient than Gregory and Justinian.38 Moreover, as both of these sources also illustrate, the experience of oaths and perjuries was hardly confined to the Frankish or . The Apostolic Canons, perhaps the oldest Christian legal text to sanction perjuries explicitly,39 were compiled in

35 Liszt, Meineid, 3, 52. 36 Heinrich Brunner, Deutsche Rechtsgeschichte, i (repr., Berlin: Duncker and Humblot, 1961), 261. 37 Brunner, Deutsche Rechtsgeschichte, ii (repr., Berlin: Duncker and Humblot, 1958), 876–7. On secular punishments for perjury in Carolingian legislation, including expropriation, amputation of the hand, and even the death penalty, see e.g. Capitulare Haristallense (a. 774), c. 10; Capitulatio de partibus Saxoniae (a. 775–90), c. 33; Capitulare missorum generale (a. 802), c. 36; Capitulare missorum in Theodonis villa datum secundum, generale, cc. 5, 11; Capitula cum primis constituta (a. 808), c. 4; and Lex Saxonum, 21–2. 38 For imperial ruler cult under the Severans, see e.g. Duncan Fishwick, ‘The Aftermath of Revolution (AD 193–284)’, in idem, The Imperial Cult in the Latin West: Studies in the Ruler Cult of the Western Provinces of the Roman Empire, iii: Provincial Cult: Institution and Evolution, Religions in the Graeco-Roman World 145 (Leiden: Brill, 2002), 197– 212. 39 See n. 2 above and ch. 3, ‘Peccatization’, pp. 105–6. 8

the Greek-speaking east, probably by a fourth-century Syrian bishop, Euzoius of Antioch.40 These considerations tend to undermine the earlier historiography, and they invite us to pursue a closer investigation of the possible links between ancient and medieval conceptions of perjury. Indeed, beginning in the 1970s,41 a more recent generation of late antique and early medieval historians has been engaged in the task of re-establishing the various continuities between ancient and medieval culture. In the words of Peter Heather, the transition between ancient and medieval societies is now considered less ‘dramatic’ or ‘abrupt’ than a scholar like Franz von Liszt would have considered it.42 In the area of oaths specifically, a 1986 study by Ian Wood, appearing in the University of Cambridge’s volume The Settlement of Disputes in Early Medieval Europe, attempted to demonstrate that oath taking had impeccably Roman as well as Germanic roots. According to a second-century Roman jurist, Gaius, writing in a commentary on Roman provincial law quoted in Justinian’s Digest,43 ‘[I]t is a frequent practice of judges in doubtful cases to pronounce, after an oath has been exacted, in favour of the party swearing.’44 As we shall continue to see, oaths and perjuries were not primarily Frankish or Germanic occurrences, but transcended ethnic, national, and even religious divisions all around the late antique and early medieval Mediterranean.45

Taken together, both the dearth of secondary sources dedicated to our topic and these recent historiographical developments argue for a new, generalized treatment of the links between ancient and medieval perjuries. The problem of perjury’s criminalization has yet to be solved, while contributions by Wood and others have provided a convenient point of departure for further

40 Mardirossian, La collection, 23–42. 41 See e.g. Peter Brown, The World of Late Antiquity: From Marcus Aurelius to Muhammad (London: Thames and Hudson, 1971); Walter A. Goffart, and Romans, AD 418–584: The Techniques of Accommodation (Princeton: Princeton University Press, 1980); Averil Cameron, The Later Roman Empire, AD 284–430 (Cambridge, MA: Harvard University Press, 1993); and many others. 42 Peter Heather, ‘Late Antiquity and the Early Medieval West’, in Michael Bentley, ed., Companion to Historiography (London and New York: Routledge, 1997), 81. 43 Gaius, Ad edictum provinciale. 44 D 12.2.31: ‘solent enim saepe iudices in dubiis causis exacto iureiurando secundum eum iudicare qui iurauerit’. For discussion see Wood, ‘Disputes’, 17. 45 For an example of the detection and punishment of perjuries by means of the ordeal, in Gaul before the advent of the Franks, see Incerti panegyricus Constantino Augusto dictus, 6(7).21.7. Note that the specific practice of compurgation or ‘oath helping’ remains attested only in post-imperial sources: Wood, ‘Disputes’, 17. 9

investigation. At one point in his study, Wood speculates that Gregory of Tours’s own interest in perjury may not have reflected so much the Frankish political environment in which the Gallo- Roman bishop was writing, as it did the expectations and values of provincial Roman law which a jurist such as Gaius observed:

The oath as recorded by the classical jurists was not, of course, a Christian procedure. [Yet t]he conversion of the Empire and the association of the Church with law may … explain the increased reliance on the oath apparent in the sixth century. … At the same time, the Church’s own interest in perjury … is likely to be relevant to an understanding of the context in which legal oath-taking became the normal method of proof.46

While the extent of Roman courts’ reliance on oath taking remains to be seen,47 I suggest that the time has come to take up Wood’s hypothesis directly. Over the course of this dissertation, I will attempt to document both some of the ways in which ‘an increased reliance on the oath’ is discernible in late Roman legal sources, and some of the ways in which ‘the Church’s own interest in perjury’ correspondingly grew – to be reflected in the canonical and penitential discipline of perjury by hierarchs like Gregory. The transformation of perjury into a criminal behaviour, grave sin, and canonical offence in both secular and religious spheres is a story which remains to be told – forming one part of that larger story, which late antique and early medieval historians now call ‘the transformation of the Roman world’.48

The remainder of this introduction is divided into three parts. First, although the belief that perjury was not a crime in Roman law is almost certainly exaggerated, it is true that surviving Roman legal sources have relatively little to say about perjuries and false testimony explicitly. Roman legal writers tended to focus on what legal historians have called the ‘private law’ –

46 Wood, ‘Disputes’, 17–18. 47 See pp. 33–4, 87–8 below. 48 For the use of this phrase, the title of a major series by Brill, see e.g. Ian Wood, ‘Foreword’, in Pohl, ed., Kingdoms of the Empire: The Integration of Barbarians in Late Antiquity, TRW 1 (Leiden: Brill, 1997), ix–x. 10

categorized by Gaius as the law concerning persons, properties, and actions49 – rather than on criminal, religious, and administrative matters, where one might expect oath violations to be discussed with greater frequency.50 Importantly, this silence of classical Roman law with respect to perjuries can still trip up the unwary, particularly scholars of medieval history who are accustomed to sources for which perjury is already a serious offence in both secular and canon law. For example, in his survey of the perjury legislation in the ,51 Bruno Dumézil appears to be unaware of the perjury legislation incorporated in The Justinianic Code. On the contrary, he seems to take perjury’s criminal status in Roman law, referring to ‘le crime de perfidie’, for granted52 – citing an imperial constitution which probably criminalized a specific type of perjury, not perjuries in general.53 Secondly, this Roman legal silence is compounded by a comparable silence of the Christian New Testament. As John T. Fitzgerald has pointed out, the earliest Christian sources exhibit few distinctive characteristics in their own treatment of perjuries and false testimony.54 According to Fitzgerald, a distinctively Christian opposition to perjury can be traced only to a ‘post-Constantinian period’ – the details of which will prove crucial for the latter portions of this dissertation.55 These twin silences of the ancient classical and Christian sources must first be dealt with, however briefly, before we can turn to sources produced at a later date.

A third difficulty which must be addressed is definitional. What were ancient and medieval perjuries and false testimony? How did the latter come to be associated with the former, and how

49 Gaius, Institutiones, 1.8. 50 Of the fifty volumes contained in Justinian’s Digest, just one and arguably two, Justinian’s so-called libri terribiles (Constitutio Tanta, 8a, referring to D 47–8) are expressly dedicated to criminal law. For discussion see e.g. Alan Watson, The Spirit of Roman Law (Athens, GA: The University of Georgia Press, 1995), 42ff. 51 See n. 24 above. 52 Dumézil, ‘Le crime’, 28. 53 Dumézil, ‘Le crime’, 28 n. 5, referring to CTh 9.37.2 (a. 369) = LRV 9.27.2. This statute, a constitution of the western emperors Valentinian I (r. 364–75) and his son Gratian (r. 367–83), lists sacramenta deserta amongst the public crimes for which Roman citizens could be prosecuted. For discussion see ch. 2, ‘Criminalization’, pp. 60–2. 54 See pp. 5–6 above. 55 Fitzgerald, ‘Problem’, 151, and see chs 3–4, ‘Peccatization’ and ‘Early Medieval Case Study’, pp. 97–214 below. 11

did the former relate to oaths, in particular?56 To some extent, this entire dissertation will function as an exploration of these questions, yet some initial observations seem important. Ancient and medieval oaths, for example, closely resembled a number of other ritual acts, notably vows and curses, from which they can only be distinguished with difficulty.57 In Gregory of Tours’s account of the trial of Praetextatus, for instance, King Chilperic requests that the assembled bishops enact a curse on the convicted bishop of Rouen: ‘The king demanded … that Psalm 108, which contains the maledictions against Judas Iscariot … be recited over his head.’58 Intriguingly, Praetextatus had initially denied the various accusations against him;59 if these denials were made on oath, as Gregory of Tours’s English translator believed, then Praetextatus’s subsequent confession would have amounted to an admission of perjury.60 Alternatively, Merovingian kings like Chilperic made frequent use of oaths of fidelity, hoping to secure the support of their free populations, and Praetextatus may have sworn such an oath to Chilperic on one or more occasions. According to Gregory, Chilperic, his successors, and those acting on their behalf exacted these oaths repeatedly,61 while a bishop like Praetextatus, as the leader of his community, would probably have been expected to swear.62 Either way, Praetextatus may have been perceived as perjured in 577, and the enactment of a curse could have functioned as a corollary to any perjury. If only for the sake of convenience, it will be necessary to set some limits to these possibilities – so that not every case of a curse or vow falls within the scope of this dissertation.

56 For late antique and early medieval definitions of oaths and perjuries, see e.g. Jerome, In Hieremiam, 1.69.2; Augustine, Epistulae, 125.4; and Isidore of , Etymologiae, 5.24.31. 57 On vowing and cursing in the pre-modern world, see e.g. Jean-Claude Maire Vigueur, ed., L’aveu, antiquité et moyen âge: Actes de la table ronde organisée par l’École française de Rome, 28–30 1984, Collection de l’École française de Rome 88 (Rome: École française de Rome, 1986), and John G. Gager, Curse Tablets and Binding Spells from the Ancient World (Oxford: Oxford University Press, 1992), respectively. 58 See n. 5 above: ‘[P]etiit rex, ut … centisimus octavus psalmus, qui maledictionibus Scarioticas continet, super caput eius recitaretur.’ 59 Gregory of Tours, Historiae, 5.18, ed. Krusch and Levison, MGH SS rer. Mer. 1/1, p. 217: ‘Praetextatus episcopus ea … facta negaret.’ 60 Translating at n. 59 above, ‘Bishop Praetextatus swore that what the King had said was not true’ (Thorpe, Gregory, 276). 61 See e.g. Gregory of Tours, Historiae, 6.12, 6.31, 7.7., 7.13. 62 Cf. Gregory of Tours, Historiae, 4.30. For discussion of these and similar cases, see David Frye, ‘Transformation and Tradition in the Merovingian Civitas’, Nottingham Medieval Studies 39 (1995): 2–5. 12

Let us take each of these difficulties in turn.

1 The Silence of Roman Law

Whatever the practices of the Roman empire’s inhabitants, Roman legal writers seem to have taken remarkably little interest in perjuries and false testimony. Other legal falsehoods, notably false accusations63 and the forgery of wills and testaments,64 frequently occupied the attention of Roman emperors and lawyers, yet oath violations and acts of false witness did not. Especially during the classical period of Roman law, usually thought to date from the middle of the first century BCE to the middle of the third century CE,65 one searches in vain for extended discussions of perjury. In all of Justinian’s Digest, our richest source of classical-era jurisprudence and a work containing more words than the Bible,66 explicit uses of the standard Latin vocabulary for ‘perjury’ (forms of periur-, peier-) occur in just eleven individual texts.67 In The Justinianic Code, these references occur in a mere eight.68 This lack of attention to perjuries may be explained in a variety of ways, at least one of which is the conservative presentation of Roman legal texts. Both jurisprudence and legislation touching on criminal matters took the form of commentaries, organized around a series of republican- and early imperial-era statutes. These statutes came to be seen as approximately fixed in number, and they included the lex Cornelia de sicariis and the lex Iulia de adulteriis mentioned above.69 In addition to criminalizing adulteries and most homicides,

63 CTh 9.39, CJ 9.45–6, D 48.16. 64 CTh 9.19, CJ 9.22, D 48.10. 65 See e.g. H. F. Jolowicz, Historical Introduction to the Study of Roman Law (2nd ed., Cambridge: Cambridge University Press, 1965), 5–6; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, tr. J. M. Kelly (Oxford: The Clarendon Press, 1966), 97–115; and Fritz Schulz, History of Roman Legal Science (Oxford: The Clarendon Press, 1946), 99–101. 66 Peter Birks and Grant McLeod, ‘Introduction’, in Birks and McLeod, tr., Justinian’s Institutes (Ithaca, NY: Cornell University Press, 1987), 9. 67 D 2.8.8.5, 2.8.16, 4.3.21–2, 12.2.13.6, 12.2.18, 12.2.26, 12.2.28.10, 12.3.4, 12.3.11, 47.20.4. 68 CJ 2.27(28).1; 2.55(56).4 (a. 529); 3.43.2 (a. 529); 4.1.1–2 (aa. 213, 223); 4.1.13 (a. 531); 6.40.2 (a. 531); 12.1.17 (a. 485–6). Notably, half of these texts date to the reign of Justinian himself, while only three (including the Severan statute) date to the classical period. Explicit references to perjury are absent from The Theodosian Code entirely. 69 See p. 2. 13

these classical-era statutes criminalized treason, public extortion, and forgeries, amongst various other offences, yet no republican assembly or early emperor whom we know of ever promulgated a lex de periurio or falso testimonio.70

As a result, classicists and classical legal historians have almost unanimously held that perjury was not a crime in Roman law. According to Franz von Liszt, ‘For the ancient period as well as for the period of the classical jurists and [even] under the dominion of Christianity, the Roman law knew no crimen periurii as an independent, individualized penal category.’71 Notably, Liszt was writing in the age of the nineteenth-century Kulturkampf, characterized by a campaign of secularization, and was interested in ‘crime’ as a primarily social or economic rather than a religious or moral phenomenon.72 Nevertheless, twentieth-century scholars have continued to emphasize this ostensibly secular aspect of Roman law. In 1954, the Italian Romanist Luigi Amirante asserted that ‘[t]he process of the secularization of the law gradually reduced the importance of perjury’ in the Roman world.73 A Polish-American legal historian, Helen Silving, concurred; in 1959, she concluded that ‘[t]he oath … added nothing to the fear of retribution, and declined in importance’ during the classical period.74 For Silving, citing Plato, Plutarch, and a host of other Greek and Roman writers, ‘Absolute veracity was the mark of a proud, self-confident and free man, lying the mark of a slave.’75 In the views of Silving and Amirante, perjuries were

70 As presented in The Justinianic Code, the named statutes were just ten in number: the lex Iulia maiestatis (treason); the lex Iulia de adulteriis et de stupro (adultery); the lex Iulia de vi publica seu privata (brigandage); the lex Cornelia de sicariis (homicide); the lex Fabia (kidnapping); the lex Visellia (usurpation of free status); the lex Cornelia de falsis (forgery); the lex Iulia de ambitu (electoral bribery); the lex Iulia repetundarum (public extortion); and the senatus consultum Turpillianum (false accusation or calumny). As Jill Harries has noted, this list of classical-era crimes ‘exclude[d] many forms of wrongdoing which we might assume to be “criminal”, such as theft, fraud, injurious behaviour, robbery with violence and [even] some kinds of murder’, in addition to perjury and false witness (Harries, Law and Crime in the Roman World [Cambridge: Cambridge University Press, 2007], 3). Hence the provocative title of a recent study by Judy E. Gaughan, Murder Was Not a Crime: Homicide and Power in the Roman Republic (Austin: The University of Texas Press, 2010). 71 Liszt, Meineid, 24. 72 See e.g. Richard F. Wetzell, ‘From Retributive Justice to Social Defense: Penal Reform in Fin-de-Siècle Germany’, in Suzanne Marchand and David Lindenfeld, eds, Germany at the Fin de Siècle: Culture, Politics, and Ideas (Baton Rouge: Louisiana State University Press, 2004), 59–78. 73 Luigi Amirante, Il giuramento prestato prima della litis contestatio nelle legis actiones e nelle formulae (Naples: E. Jovene, 1954), 184. 74 Helen Silving, ‘The Oath: I’, The Yale Law Journal 68/7 (1959): 1337. 75 Silving, ‘Oath’, 1337. 14

primarily held in check by a classical education and, possibly, by residual religious scruples; laws and procedures were unnecessary. More recent scholars have agreed: a 2000 monograph by Ferdinando Zuccotti insists that penalizing perjurors ‘would have meant invading the sphere of divine justice and rendering the entire community responsible for an affront to the divinity’.76 In 2006, John Scheid, a classical religious historian, repeated the opinion that perjurors were ‘not punished by mortal justice’.77 Almost alone amongst nineteenth- and early twentieth-century classicists, the German legal historian Theodor Mommsen held out the possibility that numerous perjurors could be penalized, yet Mommsen provided no decisive evidence of a legal nature for this contention.78

Apart from the absence of a lex de periurio or falso testimonio, the classicist consensus has founded itself on three primary sources, one of which is the Severan statute quoted in The Justinianic Code.79 In addition to this statute, two comparable passages extracted from literary sources, Cicero’s treatise On Laws and The Annals of Tacitus, are typically cited by classicists in various combinations.80 From a legal point of view, the most important of these sources is surely the legislation of Severus Alexander, which enjoyed the force of positive law81 and which was incorporated in Justinian’s great legal codification. First issued in 223 CE, the Severan statute likely endured several rounds of editing before appearing in its final form. Initially preserved in The Gregorian Code, an unofficial legal collection of the late third century,82 the original text was

76 Ferdinando Zuccotti, Il giuramento nel mondo giuridico e religioso antico: Elementi per uno studio comparatistico (Milan: Giuffrè, 2000), 46–7. 77 John Scheid, ‘Oral Tradition and Written Tradition in the Formation of Sacred Law in Rome’, in Clifford Ando and Jörg Rüpke, eds, Religion and Law in Classical and Christian Rome, Potsdamer Altertumswissenschaftliche Beiträge 15 (Stuttgart: Franz Steiner, 2006), 27. 78 Theodor Mommsen, Römisches Strafrecht (repr., Graz: Akademischen Druck- u. Verlagsanstalt, 1955), 586. For similar suggestions, see Erwin Seidl, Der Eid im römisch-ägyptischen Provinzialrecht, i (Munich: C. H. Beck, 1933), 119, and Floyd Seyward Lear, Treason in Roman and Germanic Law: Collected Papers (Austin: The University of Texas Press, 1965), 30. 79 See nn. 12–13 above. 80 The ‘oft repeated Roman view’ of perjury: Andrew R. Dyck, A Commentary on Cicero, De legibus (Ann Arbor: The University of Michigan Press, 2004), 317. See Cicero, De legibus, 2.22, and Tacitus, Annales, 1.73.4. 81 D 1.4.1.pr.: ‘Quod principi placuit, legis habet uigorem.’ 82 Tony Honoré, Emperors and Lawyers (2nd ed., Oxford: Oxford University Press, 1994), 99. 15

stripped of the majority of whatever details it may originally have contained.83 All that remains is the statement of legal principle, preceded by the name of the individual petitioner to whom the emperor addressed his decision. The entire statute now reads:

Emperor Alexander Augustus to Felix. The bond of an oath despised has God for a sufficient avenger. It is not pleasing, moreover, that corporal punishment or the charge of treason be inflicted in accordance with the decisions of my divine forebears, even if one be perjured (by means of a certain passion) on the veneration of the prince. Posted on the sixth of the Kalends of April, with Maximus for the second time and Aelianus as consuls.84

Thus for Severus Alexander, and perhaps for Justinian himself, oath violations were not to be disciplined in specific ways, including by means of accusations of treason and the use of corporal punishment. Rather, perjuries were to be excused as an excess of ‘passion’ (calore) – though the emperor himself had been the party falsely invoked by the terms of an oath (sworn ‘on the veneration of the prince’).85

We will have more to say about this important source in the next chapter,86 but one point is worth making now. Even if the surviving text accurately reflects the original – as indeed it probably does87 – this decision must not be taken as reflecting the entirety of Roman legal thought on perjuries. At a very basic level, the source before us was normative and legislative; while it expresses how the emperor and his lawyers hoped that the law would work, it does not necessarily

83 Cf. Honoré, Emperors, 48–56. 84 CJ 4.1.2 (a. 223): ‘Imp. Alexander A. Felici. Iurisiurandi contempta religio satis deum ultorem habet. Periculum autem corporis vel maiestatis crimen secundum constituta divorum parentum meorum, etsi per principis venerationem quodam calore fuerit periuratum, inferri non placet. PP. VI k. April. Maximo II et Aeliano conss.’ 85 For examples of oaths by rulers, see pp. 18, 53 n. 81, 68–9 nn. 175–84 passim, 72 n. 202, 77 n. 234, 79 n. 249, 84 n. 289, 169 n. 96, 171 nn. 108–11. On ‘crimes of passion’ in Roman law, see e.g. William V. Harris, Restraining Rage: The Ideology of Anger Control in Classical Antiquity (Cambridge, MA: Harvard University Press, 2001), 219– 20, 228. 86 See pp. 70–5 below. 87 Honoré, Emperors, 53–6. 16

express how the law did work.88 Furthermore, this particular statute took the form of a rescript, considered primarily binding in the case of the petitioner (here, ‘Felix’). Before such rescripts could come to be considered as universally applicable, they had to be cited by lawyers and magistrates in analogous cases – and magistrates did not always follow imperial policies consistently.89 In the present case, Felix evidently petitioned the government of Severus Alexander concerning a dispute in which the violation of an oath was or might be at issue. Perhaps he or one of his associates had been accused of some kind of perjury, and a trial was then under way;90 or perhaps Felix feared the possibility of such an accusation, and wished to arm himself pre- emptively.91 Either way, Felix would presumably have had to approach the emperor in person, an act of petitioning which most likely took place in Rome or its environs, where the young emperor is supposed to have spent much of his early reign.92 Unfortunately, the surviving language of the rescript does not permit us to say where it was issued, only that it was promulgated (‘posted’) on 27 March.93 The fact that Felix petitioned and received a reply suggests that certain people who made use of Roman courts considered perjury as a problem requiring imperial input. It also suggests that perjury accusations may have been ongoing, and that similar clarifications may have been requested on other occasions.94

From this one source, the most that we can say is that the administration of an individual emperor, Severus Alexander, forbade the prosecution of a given perjury, and that subsequent compilers and editors of Roman law found the decision memorable. Nevertheless, the evidence of

88 On this evidentiary problem with the functioning of law, see (in a variety of different contexts) John F. Matthews, Laying Down the Law: A Study of the Theodosian Code (New Haven: Yale University Press, 2000), 9; Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), 3; and Patrick Wormald, ‘Lex Scripta and Verbum Regis: Legislation and from to Cnut’, in P. H. Sawyer and I. N. Wood, eds, Early Medieval Kingship (Leeds, 1977), 105–38. 89 Humfress, Orthodoxy, 61. On the rescript system in general, see Honoré, ‘Rescripts: System and ’, in idem, Emperors, 33–70; Corcoran, ‘Private Rescripts’, in idem, Empire, 43–73; and Fergus Millar, ‘Petition and Response’, in idem, The Emperor in the Roman World (31 BC–AD 337) (London: Duckworth, 1977), 537–49. 90 Honoré, Emperors, 39. 91 Honoré, Emperors, 35, 39. 92 Cassius Dio, Historia Romana, 80.21.1.2. 93 See n. 84 above: ‘PP. VI k. April. Maximo II et Aeliano conss.’ 94 For further evidence see ch. 2, ‘Criminalization’, pp. 71–3, 83–5. 17

the Severan statute is strengthened by the addition of two additional sources, both of which seem to express a similar opinion. In Cicero’s On Laws, a philosophical dialogue on the nature of the Roman state probably composed in the late 50s BCE,95 the republican orator seemingly expressed his preference for extrajudicial responses to perjury. Adopting the style of an ancient Roman legislator, Cicero declared: ‘For the perjuror the punishment from the gods is destruction; the human punishment shall be disgrace.’96 The ‘disgrace’ here advocated by Cicero (dedecus) is usually identified with an historically specific though elusive legal category, the mark of ‘infamy’ or infamia.97 According to a classic study by A. H. J. Greenidge, ‘infamy’ during the classical period did not amount to a legal penalty, prescribed by statute and imposed in a public trial. Rather, infamia constituted the simple recognition of certain ‘disgraceful’ or unethical behaviours – including acting, prostitution, and violations of religious ritual98 – not all of which were necessarily illegal, but all of which rendered the infamous party incapable of giving testimony, making agreements, and exercising other civil rights.99 The evidence of the On Laws is not unambiguous; in the same treatise, Cicero appeared to advocate making certain religious violations capital offences,100 while in his treatise On Duties, Cicero claimed that the mark of infamy had once been imposed by the ancient censors: ‘[T]here were no cases in which they used to render more rigorous decisions than in cases of violation of an oath.’101 Nevertheless, classical infamia was not understood as translating automatically into legal punishment. In Greenidge’s analysis, the infamous perjuror suffered a loss of reputation, or existimatio, not a critical loss of status, or caput.102

95 Dyck, A Commentary on Cicero, De legibus, 5–7. 96 Cicero, De legibus, 2.22, tr. Clinton Walker Keyes, Cicero: On the Republic, On the Laws, LCL 213 (Cambridge, MA: Harvard University Press, 1928), 396–7: ‘Periurii poena divina exitium, humana dedecus.’ 97 CJ 2.11, D 3.2 passim. 98 A. H. J. Greenidge, Infamia: Its Place in Roman Public and Private Law (repr., Aalen: Scientia, 1977), 123–43. 99 Greenidge, Infamia, 166–70. 100 Cicero, De legibus, 2.8.22, tr. Keyes, Cicero, 394: ‘Quaeque augur iniusta nefasta, vitiosa dira defixerit, inrita infectaque sunto; quique non paruerit, capital esto.’ 101 Cicero, De officiis, 3.31.111, tr. Walter Miller, Cicero: On Duties, LCL 30 (Cambridge, MA: Harvard University Press, 1913), 390–1: ‘animadversionesque censorum, qui nulla de re diligentius quam de iure iurando iudicabant’. For the composition of this text, see Andrew R. Dyck, A Commentary on Cicero, De officiis (Ann Arbor: The University of Michigan Press, 1996), 8–10. 102 Greenidge, Infamia, 5–7. 18

Like Cicero, the classical historian Tacitus appears to have disapproved of criminal prosecutions for perjury. Writing more than a century and a half later, in the late 110s or early 120s CE,103 the historian’s comments were inspired by a type of perjury also evinced in the Severan statute. According to the first book of Tacitus’s Annals, a certain Roman knight (eques), Rubrius, had been accused of violating an oath sworn in the name of an emperor,104 the deceased and deified Augustus. Having been accused of treason, the perjured Rubrius was spared only through the intervention of the reigning emperor, Augustus’s stepson Tiberius (r. 14–37 CE), who reportedly addressed the following remarks to the Senate: ‘As to the perjury, it was on the same footing as if the defendant had taken the name of in vain: the gods must look to their own wrongs.’105 Intriguingly, this decision was communicated by means of a letter, which historians have sometimes considered as a rescript or proto-rescript; perhaps it served as a precedent for the Severan statute some two centuries later.106 Regardless, the evidence of Tacitus’s Annals proves to be even more ambiguous than that of Cicero’s On Laws, for Rubrius’s trial inaugurated a long succession of treason trials which appear to have ended badly for the defendants. According to Tacitus, a critic of the Tiberian regime,107 the accusations brought against Rubrius represented ‘the first, tentative charges … from [which] … the accursed thing [i.e., treason trials] crept in, and, after a temporary check, at last broke out, an all-devouring conflagration’.108 Both the senators Libo Drusus and Gaius Silius reportedly went on to take their own lives rather than confront the prospect of criminal conviction, and the first had been accused of a ritual or religious offence, comparable with Rubrius’s perjury.109 Given these developments, one historian has gone so far as

103 Anthony R. Birley, ‘The Life and Death of Cornelius Tacitus’, Historia: Zeitschrift für alte Geschichte 49/2 (2000): 241–7. 104 Cf. n. 84 above: ‘etsi per principis venerationem … fuerit periuratum’. 105 Tacitus, Annales, 1.73.4, tr. John Jackson, Tacitus: Histories, Books 4–5; Annals, Books 1–3, LCL 249 (Cambridge, MA: Harvard University Press, 1931), 368–9: ‘Ius iurandum perinde aestimandum quam si Iovem fefellisset: deorum iniurias dis curae’ (qtd in Liszt, at n. 35 above). 106 Honoré, Emperors, 8–9. 107 For a classic statement of this case, see G. A. Harrer, ‘Tacitus and Tiberius’, The American Journal of Philology 41/1 (1920): 57–68. 108 Tacitus, Annales, 1.73.1, tr. Jackson, Tacitus, 368–9: ‘praetemptata crimina … quibus … gravissimum exitium inrepserit, dein repressum sit, postremo arserit cunctaque corripuerit’. 109 Tacitus, Annales, 2.27–32 (Libo Drusus, tried for cursing the names of Tiberius and his family), 4.17–20 (Gaius Silius). 19

to interpret Tiberius’s remark that ‘the gods must look to their own wrongs’ as sarcastic. According to Patrick Sinclair, Tiberius could be an erudite and ironic writer, capable of deploying an epigram in order to mock his senatorial audience.110

Taken collectively, the evidence of Cicero, Tacitus, and the Severan statute has been overstated. While the evidence of the Severan statute gives us an important but partial perspective on Roman perjury law, Cicero seemed to regret the absence of formal discipline for perjuries under the late republic,111 and Tacitus implied that Rubrius’s trial might well have turned out differently. What these sources do show, however, is that a certain preference for extrajudicial responses to perjury persisted amongst Roman writers of a certain class and perspective. In one way or another, all three of our authors – Cicero, Tacitus, and the anonymous drafter of the Severan statute, a successor to the jurist Ulpian112 – belonged to the imperial aristocracy. Cicero became a member of the Roman Senate in 75 BCE,113 while Tacitus is thought to have inherited the same position.114 For their part, Ulpian and his colleagues ranked amongst the most prominent and influential lawyers in the Roman empire, working in close proximity to the emperor for many months or years.115 Perhaps equally importantly, all three of these authors wrote from the perspective of the imperial centre, and all had been the beneficiaries of a classical education – in Cicero’s case, being incorporated into educational curricula himself. As Richard Hingley has written, imperial society was remarkably successful at creating and sustaining at least the image of a unitary ‘elite culture’, ‘passed on through the tradition of classical education’.116 Tacitus made use of Cicero in his

110 Patrick Sinclair, ‘Deorum iniurias dis curae (Tac., Ann. I, 73, 4)’, Latomus 51/2 (1992): 397–403. On Tiberius’s erudition, cf. Suetonius, De vita Caesarum, Aug. 86.2, Tib. 56, 70, 71.1. Notably, Tacitus himself considered that ‘[i]t was characteristic of Tiberius to shroud his latest discoveries in crime under the phrases of an older world’: Proprium id Tiberio fuit scelera nuper reperta priscis verbis obtegere (Tacitus, Annales, 4.19, tr. Jackson, Tacitus, 34–7). 111 Implying that he admired the censorian judgments of former times: ‘qui nulla de re diligentius quam de iure iurando iudicabant’ (see n. above). 112 Honoré, Emperors, 98–9. 113 Fulfilling the office of quaestor: Cicero, Tusculanae disputationes, 5.23.64–6. 114 Ronald Syme, Tacitus, i (Oxford: The Clarendon Press, 1958), 63. 115 Tony Honoré, Ulpian: Pioneer of Human Rights (2nd ed., Oxford: Oxford University Press, 2002), 18–36. 116 Richard Hingley, Globalizing Roman Culture: Unity, Diversity, and Empire (London and New York: Routledge, 2005), 49. 20

writings;117 notably, so too did the jurist Ulpian.118 As important as these authors were, we should not assume that they spoke for all of Roman society, or even (in the case of the classical jurists) for all of Roman law. As Gaius’s observation of provincial courtrooms suggests, the practices of provincial magistrates could be very different, and the view from the periphery was not necessarily the same as the view from the centre.119 Three primary sources, of which one is legislative and another of which is philosophical, are a slender thread on which to hang the argument that perjuries were never ‘punished by mortal justice’.120

One theory which has been advanced to explain perjury’s non-criminal status in Roman law has been the conceptual ‘division between ius and fas’, or between human law and divine law.121 According to this theory, crimes like homicide and adultery were assigned to the realm of ius, because injured human parties were identifiable; whereas perjury was assigned to the realm of fas, where the injured party was a god.122 Nevertheless, this theory is also subject to qualification. As historians are increasingly aware, the ostensibly secular Roman law was intimately bound up with religion, even during the classical period.123 Crucially, the figure of the emperor served not only as the linchpin of the Roman legal system, in both symbolic and practical terms,124 but also as an object for worship – both after his death, as with the deified Augustus by whom the knight Rubrius swore,125 and during his own lifetime, as by the time of the Severans.126 Later, following

117 See e.g. Christopher van den Berg, ‘The Imitation of Some Structural Techniques in Cicero, Tacitus, and Minucius Felix’, Schedae 1/1 (2007): 1–14. 118 D 42.4.7.4. For a rhetorical interpretation of these texts, see ch. 2, ‘Criminalization’, pp. 73–5. 119 Cf. nn. 44–5 above. 120 Scheid, ‘Oral Tradition’, 27. 121 Liszt, Meineid, 24. 122 Cf. Tacitus, Annales, 1.73.4, at n. 105 above: ‘deorum iniurias dis curae’. Servius, In Vergilii Georgica, 1.269, ed. Georg Thilo, Servius: In Vergilii Carmina Commentarii, iii (Leipzig: Teubner, 1902), 193: ‘[N]am ad religionem fas, ad homines iura pertinent.’ 123 See e.g. the collections of essays in Olga Tellegen-Couperus, ed., Law and Religion in the Roman Republic (Leiden: Brill, 2012), and Clifford Ando and Jörg Rüpke, eds, Religion and Law in Classical and Christian Rome, Potsdamer Altertumswissenschaftliche Beiträge 15 (Stuttgart: Franz Steiner, 2006). 124 See e.g. Millar, Emperor, 275–607 passim. 125 Tacitus, Annales, 1.73.2, tr. Jackson, Tacitus, 368: ‘Rubrio crimini dabatur violatum periurio numen Augusti.’ 126 For attestations of the Severans and their immediate successors as living gods, see Fishwick, ‘Aftermath’, 197–212 passim. 21

the advent of Christianity, emperors continued to represent themselves as sacred persons, and the official copies of imperial legislation were publicly venerated as holy.127 Moreover, criminal penalties and procedures were considered applicable to a whole range of religious and ritual offences, including magic and the violation of tombs,128 while damage done to the emperor’s image could be criminally prosecuted as sacrilege (sacrilegium).129 Indeed, Rome’s earliest law, The Law of the Twelve Tables, had permitted sacrilegious persons (the perjured presumably included) to be extrajudicially killed,130 while false witnesses were supposed to be thrown from the Tarpeian Rock.131 At every period of Roman legal history, human and divine law were not necessarily approached as mutually exclusive categories, but overlapped and blended into one another, sometimes imperceptibly.132

All of these considerations suggest the desirability of a re-examination of the place of perjuries in the Roman world. Are there primary sources apart from the Severan statute, Cicero, and Tacitus, and do some of these sources preserve the perspective on perjuries held by Roman legal actors on the ground? Did other social classes share the conceptions of Cicero, Tacitus, and the classical jurists, and how did perjuries come to be associated with false witness? If we look beyond the great legal codifications and the classical literary authorities, my suspicion is that we can identify sources which will articulate a wider range of perspectives on perjuries in general. Particularly as later Roman legislation became increasingly moralistic,133 as Roman criminal and administrative law gradually expanded,134 and as the empire gained a denser network of public

127 For a description see Matthews, Laying Down, 182. 128 CTh 9.16, CJ 9.18 (magic); CTh 9.17, CJ 9.19 (tomb violation). 129 CTh 9.38.6 = CJ 1.4.3 (a. 381). 130 Cf. Leon ter Beek, ‘Divine Law and the Penalty of Sacer Esto in Early Rome’, in Olga Tellegen-Couperus, ed., Law and Religion in the Roman Republic (Leiden: Brill, 2012), 11–29. 131 Crawford, Roman Statutes, ii, no 40, p. 582: ‘si falsum testimonium dixerit, de saxo deicito’. 132 For a particularly striking example, see Cicero’s proposal that transgressions of augurs’ pronouncements be made subject to capital punishment, at n. 100 above. Cicero’s entire treatise, moreover, is premised on the assumption that gods and humans shared law and citizenship in common in a certain sense: ‘[L]ege quoque consociati homines cum dis putandi sumus. … [Q]uibus autem haec sunt inter eos communia, et civitatis eiusdem habendi sunt’ (Cicero, De legibus, 1.7.23, tr. Keyes, Cicero, 322). 133 See e.g. Corcoran, Empire, 3. 134 See e.g. Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 12–13, 18. 22

officials,135 the opportunities for perjury to appear in our sources seemingly increase. As we shall see, there are statements on perjury to be found in such diverse texts as North African Christian martyr acts, North African provincial law manuals, papyrus documents from Ravenna, and select imperial and post-imperial legislation, with most of these texts having been composed from a diversity of military, administrative, and local aristocratic points of view. Taken together, such post-classical legal sources may provide a needed corrective to the classicist consensus, and furnish the evidence for Theodor Mommsen’s lonely (if unproven) contention that many perjuries were justiciable.136 For a variety of reasons, the late Roman empire makes fertile hunting ground for the historian of perjury and false witness. Can the post-classical sources be made to speak, where classical Roman law was largely silent?

2 The Silence of the New Testament

Although early Christianity developed in an environment quite different from that of Roman law, the two traditions resembled each other in at least one respect. Like the classical Roman legal writers, the authors of the Christian New Testament had relatively little to say about perjuries explicitly.137 Throughout the New Testament, the standard Greek and Latin vocabulary for ‘perjury’ (forms of ἐπιορκ- and periur-, peier-) occurs just twice. In The of Matthew, Jesus paraphrases a precept of the so-called ‘Holiness Code’ of The Book of Leviticus, stating ‘Thou shalt not forswear thyself’;138 and in The First Letter to Timothy, ‘perjured persons’ are numbered amongst those for whom ‘the law’, evidently meaning the Mosaic law, had been intended.139 References to false witness, meanwhile, were more numerous than references to perjury, possibly on account of the belief that Jesus had been a victim of acts of false witness

135 Christopher Kelly, Ruling the Later Roman Empire (Cambridge, MA: Harvard University Press, 2004). 136 See n. 78 above. 137 Cf. Fitzgerald, ‘Problem’. 138 Matt. 5:33: οὐκ ἐπιορκήσεις; ‘non peierabis’ (). Cf. Lev. 19:12. 139 1 Tim. 1:10: ἐπιόρκοις; ‘periuris’ (Vulgate). On Mosaic law, see pp. 25–6 below. 23

committed during his night time trial before the Sanhedrin.140 Notably, Jesus was believed to have argued that false witness was the type of offence which could render an offender impure,141 and Paul compared those preaching about the resurrection falsely with false witnesses in a judicial context.142 Nevertheless, the New Testament author who made the most extensive use of the concept of ‘witness’, John, did not mention false testimony in any of the works ascribed to him,143 and perjuries remained peripheral to early Christian ethical discussion. Outside the books of the canonical New Testament, brief references to perjury can be found only in The Didache, an important example of ‘church order’ literature which repeats the Levitical injunction.144

Unlike Roman law, however, Christianity did have access to an extensive and authoritative literature in which perjuries and false testimony were condemned. Both offences were credibly prohibited in the Decalogue of the Hebrew Bible, where the misuse of God’s name and ‘bear[ing] false witness’ were proscribed,145 while much of the rest of the Old Testament regarded perjuries and false testimony with varying degrees of severity. In Levitical law, the standard penalty for perjury had been restitution to the injured human party and the donation of a sacrificial ram to the Jewish priesthood.146 In a case of false witness, the punishment was supposed to be the same as that which would have befallen the guilty party.147 Furthermore, particularly harsh condemnations of perjury were to be found in the Old Testament’s Wisdom and prophetic literatures, broadly composed between the eighth century BCE and the first century CE. Possibly reflecting the

140 Matt. 26:59–60, Mark 14:56–7. See also Matt. 19:18, Mark 10:19, Luke 18:20, Acts 6:13. 141 Matt. 15:19. 142 1 Cor. 15:15. 143 Cf. Allison A. Trites, The New Testament Concept of Witness (Cambridge: Cambridge University Press, 1977), 75–6. 144 Didache, 2.3, 5.1. On the origins of The Didache amongst Jews and Jewish Christians in first- and second-century Antioch, see Huub van de Sandt and David Flusser, The Didache: Its Jewish Sources and Its Place in Early Christianity and Judaism, Compendia Rerum Iudaicarum ad Novum Testamentum 5 (Assen: Royal Van Gorcum, 2002). 145 Exod. 20:7, 20:16; Deut. 5:11, 5:20. 146 Lev. 6:1–7. 147 Deut. 19:16–19. In Roman legal texts, this same penalty was supposed to fall on criminal calumniators who could not prove their case (see ch. 2, ‘Criminalization’, p. 41 n. 10). With respect to perjuries, however, note that the biblical text betrays no hesitation over identifying an injured human party. As this text was received in medieval Europe: ‘anima quae peccaverit et … negaverit depositum proximo suo … vel vi aliquid extorserit aut calumniam fecerit sive rem perditam invenerit et infitians insuper peierarit … convicta delicti reddet omnia’ (Lev. 6:2–4). 24

ubiquity of perjury in their own societies, multiple writers working within these traditions represented oath violations as idolatrous, the worst type of sin in ancient Jewish theology.148 In The Book of Wisdom, perjury’s origins were explicitly attributed to idolatry, as people who worshipped the false gods were more likely to swear false oaths.149 Most of the major prophets decried perjuries as signs of faithlessness, associating them with idolatry, blasphemy, and adultery.150 The ubiquity of these denunciations, together with comparisons of perjury to more mundane offences, such as theft,151 suggest that ancient Jews were well acquainted with oath violations and those who committed them. Like Romans who made use of the oath in provincial courtrooms,152 the denizens of ancient Israel and Judah appear to have made extensive use of the oath, and opportunities for committing perjury must have been numerous.153

Nevertheless, Christian norms with respect to perjury and false witness remained uncertain, partly on account of early Christian ambivalence toward law and legality itself. Perhaps most famously, the apostle Paul insisted that obedience to Mosaic law was unnecessary for ,154 and the author of The First Letter to Timothy made reference to perjury in precisely this context. According to the Pauline writer, ‘The law is not made for the just man’, i.e., for the justified person of faith, saved within the new Christian community;155 rather, Mosaic law had been made ‘for the unjust and disobedient … for menstealers, for liars, for perjured persons, and whatever other thing

148 See e.g. Walter C. Kaiser, Jr, Toward Old Testament Ethics (Grand Rapids: Zondervan, 1983), 5. For the origins of at least some of The Book of Isaiah, the oldest of the prophetical books, in the eighth century BCE, see e.g. William G. Dever, ‘Archaeology and the Social World of Isaiah’, in Robert B. Coote and Norman K. Gottwald, eds, To Break Every Yoke: Essays in Honor of Marvin L. Chaney (Sheffield: Sheffield Phoenix Press, 2007), 82–96. For the composition of The Book of Wisdom, one of the last major contributions to the Bible’s Wisdom literature, as late as the first century CE, see e.g. A. Peter Hayman, ‘The Wisdom of Solomon’, in James D. G. Dunn and John W. Robertson, eds, Eerdmans Commentary on the Bible (Grand Rapids: William B. Eerdmans, 2003), 763. 149 Wisd. 14:22–31. 150 Isaiah 48:1; Jer. 5:2, 7:9; Ezek. 16:59, 17:16–20. 151 See e.g. Zech. 5:1–4. 152 See pp. 9–10 above. 153 For overview see Yael Ziegler, Promises to Keep: The Oath in Biblical Narrative, Supplements to the Vetus Testamentum 120 (Leiden: Brill, 2008). 154 See e.g. Rom. 7:1–6, Gal. 3:1–14. 155 Stephen Westerholm, ‘The Law and the “Just Man” (1 Tim 1,3–11)’, Studia Theologica 36/1 (1982): 79–95. 25

is contrary to sound doctrine’.156 In a more practical vein, Paul advised his audiences not to engage in judicial battles,157 while Jesus had reserved some of his harshest criticism for the Jewish lawyers of his day.158 Traditions such as these led some observers amongst Christianity’s Jewish origins to perceive the Jesus movement as hostile to law and custom,159 yet the nascent church was in a process of developing its own, often quite different norms. At the in c.50 CE, an event frequently seen as pivotal for the early history of canon law,160 a compromise between Christian advocates and opponents of Mosaic law emerged. On the one hand, Paul and his fellow preacher Barnabas would be permitted and encouraged to minister to non-Jewish communities, whose members were dispensed from most of their potential obligations under Mosaic law. On the other hand, non-Jewish converts would still be obliged to abstain from foods sacrificed to idols, from meats slaughtered out of conformity with Mosaic law, and from sexual immorality (porneia).161 This list of offences was conspicuously short, and while some Christians and Jews may have subsumed perjury within the category of idolatry, in practice all kinds of different norms probably flourished within differing Christian communities.162

Indeed, some later Christians took a surprisingly favourable view of perjuries and false testimony, basing themselves on New Testament texts which seemed to undermine the authority of the oath. In what eventually became the locus classicus for Christian discussion of the oath, Herod Antipater, tetrarch of Galilee (r. 4. BCE–c.39 CE), reportedly had beheaded in the fulfilment of an oath. According to both The Gospel of Matthew and The Gospel of Mark,

156 1 Tim. 1:9–10: εἰδὼς τοῦτο, ὅτι δικαίῳ νόμος οὐ κεῖται, ἀνόμοις δὲ καὶ ἀνυποτάκτοις … ἀνδραποδισταῖς, ψεύσταις, ἐπιόρκοις, καὶ εἴ τι ἕτερον τῇ ὑγιαινούσῃ διδασκαλίᾳ ἀντίκειται; ‘sciens hoc quia lex iusto non est posita sed iniustis et non subditis … plagiariis mendacibus periuris et si quid aliud sanae doctrinae adversatur’ (Vulgate). 157 1 Cor. 6:1–6. 158 Luke 11:45–52. 159 See e.g. Frances M. Young, ‘Temple Cult and Law in Early Christianity: A Study of in the Relationship Between Jews and Christians in the Early Centuries’, New Testament Studies 19/3 (1973): 325–38. 160 Gaudemet, Église, 115. 161 Acts 15:20, 15:29. 162 James D. G. Dunn, Unity and Diversity in the New Testament: An Inquiry into the Character of Earliest Christianity (3rd ed., London: SCM Press, 2006), has distinguished at least four general movements (identified as Jewish Christian, Hellenistic, ‘apocalyptic’, and proto-Catholic) within the nascent church. Unity was provided by belief in the identity of Jesus with the Messiah; disagreement tended to emerge around other issues (ibid., 403–8). 26

the tetrarch had sworn to grant any request put to him by his stepdaughter, known to Christian tradition as Salome. At her mother’s urging, Salome requested the head of John the Baptist, and Herod fulfilled his promise ‘because of his oath’.163 Commenting on this text toward the beginning of the third century, the Greek theologian of Alexandria concluded that certain oath violations might be less serious offences than many others, notably murder. In his surviving Commentary on the Gospel of Matthew, the Alexandrian explained that, at least in Herod’s case, ‘[I]t was necessary to commit perjury, rather than to swear truly.’164 Christian writers at both ends of the Mediterranean echoed Origen’s opinion, with some having gone so far as to highlight the positive goods that some perjuries and false testimony entailed. For , a fourth- century western bishop who rendered many of Origen’s commentaries on the Psalms into Latin,165 acts of false witness or obstruction could be justified, provided that they were committed in the defence of fugitives and other vulnerable persons.166 For , an eastern likewise writing for a western audience, an act of perjury reportedly had a salutary effect on his own spiritual career. According to the seventeenth book of his Conferences, which was recommended reading for western ,167 the young Cassian had promised on oath to return to the monastery of his original profession, situated in Bethlehem. Despite this assurance, one of the Egyptian desert fathers (Joseph of Thmuis) persuaded Cassian to remain with him in Egypt – citing Herod’s oath once again.168

163 Matt. 14:9: διὰ τοὺς ὅρκους; ‘propter iuramentum’ (Vulgate). See also Mark 6:26. 164 Origen, In Matthaeum, 10.22, ed. Erich Klostermann, Origenes Werke, x: Origenes Matthäuserklärung, GCS (Leipzig: J. C. Hinrichs, 1935), 30: καὶ ἀποκεφαλίζεται ὁ προφήτης δι᾿ ὅρκους, ἐφ᾿ οἷς μᾶλλον ἐπιορκεῖν ἢ εὐορκεῖν ἔδει· For this and other ‘infelicitous’ oaths in the New Testament, see Jo-Ann A. Brant, ‘Infelicitous Oaths in the Gospel of Matthew’, The Journal for the Study of the New Testament 19 (1997): 3–20. 165 Paul C. Burns, A Model for the Christian Life: Hilary of Poitiers’s Commentary on the Psalms (Washington, DC: The Catholic University of America Press, 2012), 65–77. 166 Hilary of Poitiers, Tractatus super psalmos, 14.10, ed. Jean Doignon, CCSL 61 (Turnhout: Brepols, 1997), 87: ‘Est enim necessarium plerumque mendacium et nonnumquam falsitas utilis est, cum aut percussori de latente mentimur aut testimonium pro periclitante frustramur.’ 167 Regula Benedicti, 73. 168 John Cassian, Collationes, 17.2–9, ed. Michael Petschenig, CSEL 13 (2nd ed., Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2004), 466–70: ‘[Q]uid agimus de sacramenti fide, quam senioribus nostris uelocissimum reditum pollicentes dedisse nos nouimus? … IOSEPH: … Quod utrumque liquidissime … Herodis exempla testantur. … Hic uero fidem inconsulti retinens sacramenti cruentissimus praecursoris domini extitit interemptor uanoque timore periurii damnationi semet ipsum atque suppliciis perpetuae mortis inmersit.’ 27

Importantly, some historians have suggested that opinions like Origen’s amounted to one of two ‘traditions on lying’ in the early church. According to a 1985 study by Boniface Ramsey, a scholar of patristics, early Christianity embraced thinkers who both opposed and advocated some lies, and the tradition which advocated some lies ‘has a good chance of being the older’.169 For biblical exegetes such as Origen, Cassian, and Hilary of Poitiers, the circumstances of a perjury or an act of false witness could excuse or even justify the act. To of Milan, another western bishop influenced by Origen,170 the circumstances were essential: in his exegesis of the Herod episode, Ambrose pointed out that Herod had probably been drunk, possibly preventing him from making any valid agreement at all.171 To be sure, these third- and fourth-century writers based themselves not only on the New Testament texts, but also on some of the classical authorities which seemed to minimize the importance of oath taking. Ambrose’s interpretation appeared in a work, On Duties, which was closely modelled on Cicero’s treatise of the same name.172 For their part, Origen’s opinions explicitly recalled the similar opinions of Plato. In a Latin quotation of Origen’s Stromata preserved in a polemical treatise by Jerome, Origen quoted the ancient Greek philosopher in order to argue that some lies, including perjuries, could have healing, medicinal properties:

Plato says in the third book of the Republic: ‘… For if we were right in what we were saying, that falsehood is in every deed unbecoming and useless to god but to men useful … as a remedy and as a form of medicine, it is obvious that such a licence must be assigned to physicians.’ … [A] person who is obliged by necessity to lie must exercise extreme caution to use the lie as a remedy or as a form of medicine … so as to preserve moderation in its use … as [the Old Testament heroine] Judith did against [the Babylonian general] Holofernes.173

169 Boniface Ramsey, ‘Two Traditions on Lying and Deception in the Ancient Church’, The Thomist: A Speculative Quarterly Review 49/4 (1985): 532. 170 See e.g. F. B. A. Asiedu, ‘The Song of Songs and the Ascent of the Soul: Ambrose, Augustine, and the Language of ’, Vigiliae Christianae 55/3 (2001): 300ff. 171 Ambrose of Milan, De officiis, 3.12.77, ed. Testard, CCSL 15 (Turnhout: Brepols, 2000), 182: ‘Quanto tolerabilius tali fuisset periurium sacramento! Si tamen periurium posset dici, quod ebrius inter uina iurauerat.’ 172 Ivor J. Davidson, ‘Ambrose’s De officiis and the Intellectual Climate of the Late Fourth Century’, Vigiliae Christianae 49/4 (1995): 314ff. 173 As qtd in Jerome, Apologia adversus libros Rufini, 1.18, ed. P. Lardet, CCSL 79 (Turnhout: Brepols, 1982), 17– 18: ‘[I]ta loquitur: Plato, in tertio de republica libro. … Si enim, ut paulo ante rectissime dicebamus, deo indecens et 28

Notably, Judith is represented as having committed perjury.174

Despite these uncertainties, the biblical text which gave Christian exegetes the greatest difficulties was surely The Gospel of Matthew’s ‘’, in which the second of the New Testament’s two explicit references to perjury occurred. This speech, perhaps the best known summation of early Christian teaching,175 preserves a host of apparent contradictions or paradoxes which have puzzled interpreters ever since. Amongst numerous other examples, Jesus explicitly affirms the continuing validity of Mosaic law, at least prior to events of an eschatological significance: ‘For amen I say unto you, till heaven and earth pass, one jot or one tittle of the law shall not pass, till all be fulfilled.’176 Like The Didache, The Gospel of Matthew was probably composed for a community of observant Jews and Jewish Christians, and Jesus’ apparent deference to Mosaic law has been explained in that context.177 Nevertheless, Jesus proceeds in the same text to alter or revoke a succession of Old Testament teachings, ranging in subject matter from anger to love for enemies, in a series of six carefully crafted opposing statements or ‘antitheses’. In fourth position, at Matt. 5:33–7, we find this teaching:

Again you have heard that it was said to them of old, Thou shalt not forswear thyself: but thou shalt perform thy oaths to the Lord. But I say to you not to swear at all, neither by heaven, for it is the throne of God: Nor by the earth, for it is his footstool: nor by Jerusalem, for it is the city of the great king: Neither shalt thou

inutile mendacium est, hominibusque utile, ut utantur eo quasi condimento atque medicamine, nulli dubium est quin huiuscemodi licentia medicis danda sit. … Origenes … Homo autem cui incumbit necessitas mentiendi, diligenter attendat ut sic utatur interdum mendacio quomodo condimento atque medicamine, ut seruet mensuram eius. Ne excedat terminos quibus usa est Iudith contra Holofernem’ (tr. John N. Hritzu, Saint Jerome: Dogmatic and Apologetical Works, The Fathers of the Church 53 [Washington, DC: The Catholic University of America Press, 1965], 83). 174 Judith 11:4–5. On the tradition of officious lying in classical literature, see e.g. Sissela Bok, Lying: Moral Choice in Public and Private Life (2nd ed., New York: Vintage, 1999), 365ff. 175 See e.g. R. T. France, The Gospel of Matthew (Grand Rapids: William B. Eerdmans, 2007), 153. 176 Matt. 5:18: ἀμὴν γὰρ λέγω ὑμῖν, ἕως ἂν παρέλθῃ ὁ οὐρανὸς καὶ ἡ γῆ, ἰῶτα ἓν ἢ μία κεραία οὐ μὴ παρέλθῃ ἀπὸ τοῦ νόμου; ‘Amen quippe dico vobis donec transeat caelum et terra iota unum aut unus apex non praeteribit a lege’ (Vulgate). 177 See n. 144 above. 29

swear by thy head, because thou canst not make one hair white or black. But let your speech be yea, yea: no, no: and that which is over and above these, is of evil.178

While the meaning of these words has been endlessly debated, modern biblical scholars tend to agree that the historical Jesus probably intended to prohibit all oath taking. Two of the criteria employed by biblical critics for attributing individual teachings to Jesus – the so-called principle of ‘multiple attestation’,179 and the so-called principle of ‘discontinuity’, or divergence from other texts in the early Christian milieu180 – seem to be satisfied in this case. In the first place, the core of the teaching at Matt. 5:33–7 is attested elsewhere within the New Testament. According to The Epistle of James, a letter of uncertain provenance but most likely independent of the canonical ,181 early Christians were not supposed to swear at all: ‘But above all things … swear not, neither by heaven, nor by the earth, nor by any other oath. But let your speech be yea, yea: no, no: that you fall not under judgment.’182 Secondly, no other text that we know of from the early and pre-Christian Mediterranean was equally emphatic on this topic. Although statements critical of oath taking can be found in The Book of Sirach,183 the so-called ‘Dead Sea Scrolls’,184

178 Matt. 5:33–7: Πάλιν ἠκούσατε ὅτι ἐρρέθη τοῖς ἀρχαίοις, οὐκ ἐπιορκήσεις, ἀποδώσεις δὲ τῷ κυρίῳ τοὺς ὅρκους σου. ἐγὼ δὲ λέγω ὑμῖν μὴ ὀμόσαι ὅλως: μήτε ἐν τῷ οὐρανῷ, ὅτι θρόνος ἐστὶν τοῦ θεοῦ: μήτε ἐν τῇ γῇ, ὅτι ὑποπόδιόν ἐστιν τῶν ποδῶν αὐτοῦ: μήτε εἰς Ἱεροσόλυμα, ὅτι πόλις ἐστὶν τοῦ μεγάλου βασιλέως: μήτε ἐν τῇ κεφαλῇ σου ὀμόσῃς, ὅτι οὐ δύνασαι μίαν τρίχα λευκὴν ποιῆσαι ἢ μέλαιναν. ἔστω δὲ ὁ λόγος ὑμῶν ναὶ ναί, οὒ οὔ: τὸ δὲ περισσὸν τούτων ἐκ τοῦ πονηροῦ ἐστιν; ‘iterum audistis quia dictum est antiquis non peierabis reddes autem Domino iuramenta tua ego autem dico vobis non iurare omnino neque per caelum quia thronus Dei est neque per terram quia scabillum est pedum eius neque per Hierosolymam quia civitas est magni regis neque per caput tuum iuraveris quia non potes unum capillum album facere aut nigrum sit autem sermo vester est est non non quod autem his abundantius est a malo est’ (Vulgate). 179 John P. Meier, ‘Did the Historical Jesus Prohibit All Oaths? Part 2’, The Journal for the Study of the Historical Jesus 6/1 (2008): 8–20. 180 Meier, ‘Did the Historical Jesus, Part 2’, 4–8. 181 Meier, ‘Did the Historical Jesus, Part 2’, 3–4, 11. 182 Jas. 5:12: Πρὸ πάντων δέ, ἀδελφοί μου, μὴ ὀμνύετε, μήτε τὸν οὐρανὸν μήτε τὴν γῆν μήτε ἄλλον τινὰ ὅρκον: ἤτω δὲ ὑμῶν τὸ ναὶ ναὶ καὶ τὸ οὒ οὔ, ἵνα μὴ ὑπὸ κρίσιν πέσητε; ‘ante omnia autem fratres mei nolite iurare neque per caelum neque per terram neque aliud quodcumque iuramentum sit autem vestrum EST EST NON NON uti non sub iudicio decidatis’ (Vulgate). 183 Sirach 23:9–14. 184 See e.g. Chaim Rabin, ed., The Zadokite Documents: I. The Admonition, II. The Laws (2nd ed., Oxford: The Clarendon Press, 1958), no 15. 30

and the writings of Philo of Alexandria,185 none of these texts was similarly comprehensive in scope. The New Testament’s perspective is therefore thought to have been unique, increasing the chances that this particular doctrine remounts to the historical Jesus.186 Moreover, if Jesus did intend to prohibit all oath taking, then his teaching represented a significant departure from Old Testament norms and practice. In addition to permitting oaths on numerous occasions,187 Mosaic law positively imposed an oath at least twice: when a man was accused of neglecting a neighbour’s animals in his safekeeping,188 and when a woman was accused of adultery by her husband.189 In both these instances, Jesus’ followers would have been unable to discharge their duties under Mosaic law.190

For Christian interpreters, further difficulties arose because not all the New Testament’s authors necessarily shared this same teaching. Most conspicuously, Paul swore written oaths repeatedly, variously invoking God, Christ, and the ‘holy spirit’ in order to persuade his readers of the authority of his views.191 Moreover, Paul was probably not the only early Christian to swear in this way. By repeating the Levitical injunction against perjury, The Didache at least implied that some early Christians might be expected to swear – even though both this text and The Gospel of Matthew had likely been produced for similar communities.192 Perhaps most intriguingly, non- Christian observers also took note of the early Christian practice of swearing. In the early 110s, Pliny the Younger, at that time the Roman governor of and in Minor,193 addressed a series of letters to the emperor Trajan (r. 98–117 CE). According to Pliny, Christian rites featured rituals of collective oath taking, possibly including sworn promises not to commit

185 See e.g. Philo, De specialibus legibus, 2.1–9. 186 For summary see John P. Meier, ‘Did the Historical Jesus Prohibit All Oaths? Part 1’, The Journal for the Study of the Historical Jesus 5/2 (2007): 180–7. 187 See e.g. Num. 30:2(3); Deut. 6.13, 10:20. 188 Exod. 22:10–11. 189 Num. 5:11–31. 190 Meier, ‘Did the Historical Jesus, Part 2’, 22–3 n. 93. 191 See e.g. Rom. 1:9, 9:1; 1 Cor. 15:31; Phil. 1:8; and 1 Thess. 2:5, 10. 192 See n. 144 above. 193 R. J. A. Talbert, ‘Pliny the Younger as Governor of Bithynia-Pontus’, in Carl Deroux, ed., Studies in and Roman History, ii (Brussels: Latomus, 1980), 423–4. 31

any perjury in the future: ‘[T]hey [viz., the Christians] had met regularly before dawn on a fixed day to chant verses alternately among themselves … and also to bind themselves by oath, to abstain from theft, robbery and adultery, to commit no breach of trust, and not to deny a deposit when called upon to restore it.’194 Importantly, this evidence may or may not be reliable; by his own account, the Christians who provided this information had been interrogated and threatened with death.195 The use of the word sacramentum may also have been garbled, as it would apply to and the Eucharist in succeeding centuries.196 Nevertheless, it remains striking that early Christian rituals were intelligible to outside observers in terms of oath taking, and that this explanation might appear plausible to Roman governors and emperors. If sources such as Paul, The Didache, and Pliny can all be trusted, then early Christians probably continued to swear, despite (or in ignorance of) Jesus’ prohibition.197

Early Christian communities thus enjoyed minimal authoritative guidance on perjuries, about which a range of opinion existed. In some communities, for instance Pliny’s oath-bound Christians of Asia Minor, the condemnation of perjury may have been a feature of the group’s identity.198 In other places, however, Christian intellectuals from Origen to John Cassian expressed qualified approval for certain acts of perjury and false witness, and Ambrose seemed to imply that the oath violations could be a relatively normal part of a person’s duties.199 As we shall see, the Latin patristic effort to reconcile Christ’s emphatic teaching against all oath taking with the

194 Pliny the Younger, Epistulae, 10.96.7, tr. Betty Radice, Pliny the Younger: Letters, Books 8–10; Panegyricus, LCL 59 (Cambridge, MA: Harvard University Press, 1969), 288–9: ‘Adfirmabant … quod essent soliti stato die ante lucem convenire, carmenque Christo quasi Deo dicere secum invicem seque sacramento non in scelus aliquod obstringere, sed ne furta ne latrocinia ne adulteria committerent, ne fidem fallerent, ne depositum adpellati abnegarent.’ 195 Pliny the Younger, Epistulae, 10.96.3. 196 For the deliberate admixing of oath and sacramental imagery, see Dimitri Michaélidès, Sacramentum chez Tertullien (Paris: Études augustinnienes, 1970), 39–191 passim, and cf. J. Albert Harrill, ‘The Influence of Roman Contract Law on Early Baptismal Formulae (, Ad martyras, 3)’, Studia Patristica 35 (2001): 275. 197 John Meier is forced to conclude that Paul ‘th[ought] that the prohibition … d[id] not apply to him’, or ‘simply did not know about Jesus’ prohibition of oaths’ (Meier, ‘Did the Historical Jesus, Part 1’, 188–9 n. 28). For early Christian oath taking also see Kevin Uhalde, Expectations of Justice in the Age of Augustine (Philadelphia: The University of Pennsylvania Press, 2007), 77–84. 198 For some models of early Christian identity, see Éric Rebillard, Christians and Their Many Identities in Late Antiquity: North , 200–450 CE (Ithaca, NY: Cornell University Press, 2012). 199 Ambrose, De officiis, 1.50.255, ed. Testard, CCSL 15, p. 94: ‘Est etiam contra officium nonnumquam promissum solvere, sacramentum custodire.’ 32

contrary practices of Paul would occasion some of the most specific and alarming reflections on perjury and false witness in the late antique and early medieval world. According to John T. Fitzgerald, ecclesiastical censure for perjury can likely be traced to this ‘post-Constantinian period’,200 when Christians like Ambrose, Jerome, and Augustine no longer felt themselves to be an embattled minority within a hostile or indifferent empire.201 Given that the New Testament texts themselves had so little to say about perjuries specifically, how would Christian bishops and theological writers use their exegetical freedom? And how would Christian communities respond in practice, once perjuries and false testimony were perceived as properly Christian problems?

3 Definitions

Finally, we must consider the problem of definitions. What were perjuries and false testimony, and how were these categories understood by late antique and early medieval authors? Although this dissertation will attempt to answer those questions at greater length, some initial observations are necessary to help us navigate our sources. In the case of false witness, the definitions of legal historians are relatively stable. An act of false witness is usually considered as an intentionally false statement, made in the course of legal testimony or perhaps in a legal document – either with or without an oath.202 Importantly, we do not know if or how often Roman witnesses swore testimonial oaths during the classical period. Though Roman judges and juries were frequently supposed to be sworn, not to be swayed in their decision making by considerations of corruption and venality,203 no such evidence exists for ordinary witnesses. Intriguingly, the classical rhetorician Quintilian preserves evidence for both possibilities: his discussion of witnesses in The Orator’s Education omits any direct discussion of an oath,204 yet he briefly refers

200 Fitzgerald, ‘Problem’, 159. 201 See e.g. Michelle Renee Salzman, The Making of a Christian Aristocracy: Social and Religious Change in the (Cambridge, MA: Harvard University Press, 2002), 79–80. 202 See e.g. ‘False statement’, ‘false witness’, and ‘falsehood’, in Henry Campbell Black, Black’s Law Dictionary (rev. 4th edn, St Paul, MN: West, 1968), 725–6; cf. Code of Canon Law: Latin–English Edition (Washington, DC: The Canon Law Society of America, 1983), c. 1562 § 1–2. 203 Harries, Law and Crime, 63. 204 Quintilian, Institutio oratoria, 5.7. 33

to the rejection of hearsay evidence on the grounds that the people who originated such rumours were considered to be unsworn.205 Regardless, whether classical-era witnesses swore testimonial oaths or not, Quintilian was prepared to speak about falsi testes and falsa testimonia,206 whose exact association with perjurors and perjuries needs to be established.

By contrast, perjury is a much more elusive category. In common usage, it can shade off into offensive or vulgar speech,207 and the definitions which have been offered by legal and religious historians are more contestable. In particular, the incidence of perjury is closely connected to the incidence of the oath, even at the level of etymology (iurare, ‘to swear’ → periurare, ‘to commit perjury’),208 yet what an oath is has remained largely in the eye of the beholder. To take just one example, oaths which were used to solemnize promises, as was the case with Herod’s oath and with the fidelity oaths exacted by Chilperic,209 were not easily distinguishable from vows – a ritual which modern canon law defines as ‘a deliberate and free promise made to God’.210 Ancient and medieval authors frequently treated oaths and vows together, employing the terms synonymously or even interchangeably. Biblical literature is no exception: in ‘The Sermon on the Mount’, for example, Jesus’ words can be interpreted as referring to both oaths and vows. ‘Again you have heard that it was said to them of old,’ Jesus begins his teaching, ‘Thou shalt not forswear thyself: but thou shalt perform thy oaths to the Lord.’211 Although both Greek and Latin versions of this text employ the standard vocabulary for oaths (ὅρκους, iuramenta), the more common word to appear in this type of construction is ‘vow’ (εὐχή, votum), which might be alternately ‘performed’, ‘fulfilled’, or ‘paid’. In The Book of Deuteronomy,

205 Quintilian, Institutio oratoria, 5.7.5, ed. and tr. Donald A. Russell, Quintilian: The Orator’s Education, Books 3– 5, LCL 125 (Cambridge, MA: Harvard University Press, 2002), 336–8: ‘Nam et gentium simul universarum elevata testimonia ab oratoribus scimus et tota genera testimoniorum: ut de auditionibus (non enim ipsos esse testes sed iniuratorum adferre voces).’ 206 Quintilian, Institutio oratoria, 2.17.28, 5.7.4, 5.10.87. 207 See e.g. Frances A. Shirley, ‘The Mouth-Filling Oath’, in eadem, Swearing and Perjury in Shakespeare’s Plays (London: George Allen and Unwin, 1979), 1–23. 208 ‘Ius’, in Michiel de Vaan, Etymological Dictionary of Latin and Other Italic Languages (Leiden: Brill, 2008), 317. 209 See nn. 61–2, 163 above. 210 Code of Canon Law, c. 1191 § 1, pp. 430–1. 211 Matt. 5:33: Πάλιν ἠκούσατε ὅτι ἐρρέθη τοῖς ἀρχαίοις, οὐκ ἐπιορκήσεις, ἀποδώσεις δὲ τῷ κυρίῳ τοὺς ὅρκους σου; ‘iterum audistis quia dictum est antiquis non peierabis reddes autem Domino iuramenta tua’ (Vulgate). 34

to which Jesus may have been alluding in addition to The Book of Leviticus,212 we read: ‘When thou hast made a vow to the Lord thy God, thou shalt not delay to pay it.’213 Similar statements are to be found in The Book of Numbers,214 The Book of Ecclesiastes,215 and throughout the Psalms.216 As the biblical scholar John P. Meier has observed, ‘If this [blurring between oaths and vows is] true in legal texts and sacred narratives, one can reasonably suppose that the confusion was even greater “on the ground”, in the daily life of the uneducated masses.’217 Distinguishing between the violation of an oath (‘perjury’) and the transgression of a vow is therefore extremely difficult.

Still more confusingly, some historians – notably Heinrich Brunner218 – have defined the oath as a species of curse. As we saw in Gregory of Tours’s account of the trial of Praetextatus, the solemn enactment of a curse may have been seen as a natural corollary to any perjury – and the oath itself as a type of ‘conditional self-curse’, to borrow Brunner’s phrasing.219 On this view, the oath taker addressed a prayer to God or gods that if he or she did not fulfil the terms of his or her oath or state the truth on oath, then various supernatural punishments would redound on him or her. In Mosaic law, one of the oaths positively imposed on Jewish communities possessed this structure: in cases where a woman was accused of adultery by her husband,220 she was supposed to be subjected to an ordeal administered by the priest: ‘If another man hath not slept with thee … these most bitter waters, on which I have heaped curses, shall not hurt thee. But if thou hast gone aside from thy husband … [t]hese curses shall light upon thee.’221 Nor was this conception of the

212 See France, Gospel, 214. 213 Deut. 23:21: ἐὰν δὲ εὔξῃ εὐχὴν κυρίῳ τῷ θεῷ σου οὐ χρονιεῖς ἀποδοῦναι αὐτήν; ‘cum voveris votum Domino Deo tuo non tardabis reddere’ (Vulgate). 214 Num. 30:2(3) (also citing an ‘oath’). 215 Eccles. 5:4. 216 See e.g. Ps. 50(49):14. 217 Meier, ‘Did the Historical Jesus, Part 1’, 180. 218 Brunner, Deutsche Rechtsgeschicte, i, 257. 219 Brunner, Deutsche Rechtsgeschicte, i, 257: ‘eine bedingte Selbstverfluchung’; see above, pp. 11–12. 220 See n. 189 above. 221 Num. 5:19–21: ‘adiurabitque eam et dicet si non dormivit vir alienus tecum … non te nocebunt aquae istae amarissimae in quas maledicta congessi sin autem declinasti a viro tuo … his maledictionibus subiacebis’ (Vulgate). The Septuagint calls this procedure an oath taking (ὁρκιεῖ) explicitly, and scholars of both Old and New Testaments 35

oath as curse or ordeal confined to biblical tradition. According to Elizabeth Meyer, oaths and curses lay at the heart of Roman notarial traditions too.222 In Livy’s account of a semi-legendary treaty between Rome and Alba Longa, for example, the classical historian imagined that the Romans had solemnized the treaty by means of an oath, praying that Jupiter would punish them in the event of perjury: ‘If first the Roman people shall have fallen away by public counsel by malicious fraud, then you on that day … thus strike the Roman people.’223 For Meyer, this oath/curse’s underlying linguistic structure (si + a verb in the imperative mood or the jussive subjunctive mood) became typical of Roman statutes and private documents alike.224 Again, distinguishing amongst oaths, vows, and curses becomes extremely difficult or impossible, and Meyer occasionally treats all three under the rubric of ‘judicial prayers’.225 Nevertheless, not every transgression of a vow and not every unsuccessful ordeal can be considered as an instance of perjury, lest this dissertation swell beyond measure.

For the purposes of this dissertation, I will adopt the narrowest definition of oaths and perjuries which is available. Stretching back to the thirteenth century,226 this definition holds, as John P. Meier has put it, that an oath is any ‘assertion or promise that calls upon God [or gods] to act as witness to the truth of what the oath-taker says’.227 Where the oath solemnizes an assertion, as is the case with numerous judicial oaths, the oath in question is called ‘assertory’; where the oath solemnizes a promise, as with the oaths of Herod and Chilperic’s subjects, the oath is called

universally regard it as such. See e.g. Michael Fishbane, ‘Accusations of Adultery: A Study of Law and Scribal Practice in Numbers 5:11–31’, The Hebrew Union College Annual 45 (1974): 27ff.; Tikva Frymer-Kensky, ‘The Strange Case of the Suspected Sotah (Numbers v, 11–31)’, Vetus Testamentum 34/1 (1984): 24ff; and Meier, ‘Did the Historical Jesus, Part 1’, 181. 222 Elizabeth A. Meyer, Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (Cambridge: Cambridge University Press, 2004). 223 Livy, Ab urbe condita, 1.24.8, ed. B. O. Foster, Livy: History of Rome, Books 1–2, LCL 114 (Cambridge, MA: Harvard University Press, 1919), 84: ‘Si prior defexit publico consilio dolo malo, tum tu ille Diespiter populum Romanum sic ferito’ (tr. Meyer, Legitimacy, 47). 224 Meyer, Legitimacy, 44–56. 225 Meyer, Legitimacy, 103–4. 226 , Summa theologiae, 2a 2ae, q. 89, a. 1. 227 Meier, ‘Did the Historical Jesus, Part 1’, 179. 36

‘promissory’.228 While this definition suffers from serious limitations, which I will occasionally point out throughout this dissertation,229 it nonetheless offers a useful starting point for our investigation. Perhaps most importantly, it sets a limit to the number of potential perjury cases which we will consider. Transgressed vows and unsuccessful ordeals, while they may have been indistinguishable from perjuries in practice, must be saved for a future study.230 Furthermore, the essential element in our definition – ‘the call[ing] upon God … as witness’, or the element of divine invocation – was not inconsistent with late antique and early medieval concerns. As Jerome insisted, basing himself on Jesus’ prohibition in The Gospel of Matthew, all oaths were supposed to invoke the supreme being – whether explicitly or implicitly.231 Ancient Roman formulas such as per Iovem lapidem thus amounted to oaths (albeit, for this particular church father, pagan and illicit ones);232 likewise, St Paul’s invocations of God, Christ, and the ‘holy spirit’ also amounted to oaths.233 Any text which employs some version of a divine invocation (including an invocation of the ruler), as well as any text which makes use of the standard Latin vocabulary for perjury (periur-, peier-) and its synonyms (perfidia in Visigothic legislation, crimen mendacii in late Roman law),234 I will take as relevant to this study.

By these criteria, numerous peoples all around the ancient and medieval Mediterranean made use of oaths and incurred the risk of perjury, including inhabitants of the Roman empire at its height. Although oaths were rarely strictly necessary in order to conclude agreements or

228 Meier, ‘Did the Historical Jesus, Part 1’, 179. See also Code of Canon Law, cc. 1199 § 1, 1201 § 1. Cf. Silving, ‘Oath’, 1334; John T. Fitzgerald, ‘Perjury in Ancient Religion and Modern Law: A Comparative Analysis of Perjury in Homer and United States Law’, in John Fotopoulos, ed., The New Testament and Early Christian Literature in Greco-Roman Context: Studies in Honor of David E. Aune, Supplements to Novum Testamentum 122 (Leiden: Brill, 2006), 191; and Barbara J. Shapiro, ‘Law and the Evidentiary Environment’, in Lorna Hutson, ed., The Oxford Handbook of English Law and Literature, 1500–1700 (Oxford: Oxford University Press, 2017), 258. 229 See especially ch. 4, ‘Early Medieval Case Study’, pp. 178–9, 199–214. 230 For discussion see ch. 5, ‘Epilogue’, pp. 223–4. 231 Jerome, In Matthaeum, 1.647–9, ed. D. Hurst and M. Adriaen, CCSL 77 (Turnhout: Brepols, 1969), 32: ‘Qui iurat, aut ueneratur aut diligit eum per quem iurat. In lege praeceptum est ut non iuremus nisi per Dominum Deum nostrum.’ Cf. Cicero, De officiis, 3.10.44, 3.29.104. 232 Aulus Gellius, Noctes Atticae, 1.21.4; for Jerome’s disapproval of such pagan and ‘creaturely’ formulas, see ch. 3, ‘Peccatization’, pp. 125–6, 138. 233 See n. 191 above. 234 See pp. 91–3 (crimen mendacii), 190 (perfidia). 37

solemnize various judicial acts,235 the legal and documentary record of the Roman empire makes clear that imperial denizens chose to make use of oaths at various periods in the empire’s history, and for all kinds of different reasons. For the classical period of Roman law, the standard published sources of pre-Justinianic law preserve historically attested oaths or references to oaths in the regulations of a shipping guild from Puteoli;236 in a statute of the emperor Augustus regulating aqueducts;237 and in a bronze inscription commemorating the oath of allegiance sworn by the inhabitants of Alvega, , to the emperor Caligula (r. 37–41 CE).238 A statute of the emperor Domitian (r. 81–96 CE) preserves a particularly interesting use of the oath: according to the interior inscription of the oaken tablet, the military veteran Marcus Valerius Pollia ‘testified and stated on oath’ that his three children had been born during the period of his military service (in militia sibi), and so would enjoy the benefits of Roman citizenship and the emperor’s privilege of immunity.239 For the later Roman empire, meanwhile, numerous oaths and references to oaths can be found in the papyrus documents coming down to us from late antique Egypt and Ravenna.240 As Ian Wood has argued, oaths and perjuries must not be seen as primarily ethnic, Frankish or Germanic occurrences, but represented pan-imperial, pan-Mediterranean experiences. Indeed, oath taking could serve as a kind of ritual lingua franca, permitting one Roman governor, Pliny the Younger, to understand and interpret the practices of a new and potentially subversive religious sect.241

As one might expect from such a widespread phenomenon, conceptions of oaths and perjuries were subject to change. In the words of an early modern legal historian, Paolo Prodi, ‘[T]he institution of the oath did not represent an immoveable reality … but a dynamic [one]’.242

235 See e.g. M. H. Crawford, ‘Foedus and Sponsio’, Papers of the British School at Rome 41 (1973): 1–7. 236 FIRA(2) 3, ed. Vincenzo Arangio-Ruiz (Florence: S. A. G. Barbèra, 1968), no 32. 237 FIRA(2) 1, ed. Salvatore Riccobono (Florence: S. A. G. Barbèra, 1968), no 67. 238 FIRA(1) 1, ed. Karl Georg Bruns (rev. 7th ed., Tübingen: I. C. B. Mohr, 1909), no 101. 239 FIRA(2) 1, no 76. 240 See e.g. FIRA(2) 3, nos 6–7, 9, 13, 15, 67–8, 115, 158, 178–9, 182, 184, 188. For the Ravenna papyri, see Jan-Olof Tjäder, ed., Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700, 2 vols (Lund and Stockholm: C. W. K. Gleerup, 1955–82), nos 8, 13, 16, 20, 22, 24, 43, 49, 59. 241 See nn. 194–5 above. 242 Paolo Prodi, Il sacramento del potere: Il giuramento politico nella storia costituzionale dell’occidente (Bologna: Il Mulino, 1992), 13. 38

Following Prodi, one might do better to speak of ‘perjuries’ than of ‘perjury’, and in the pages which follow, we will meet many different types of perjury: military and administrative perjuries,243 perjuries of relationships of clerical patronage,244 and injudicious oath taking,245 as well as the perjuries of private agreements and testimonial perjuries which are more familiar to most readers.246 For Roman soldiers and administrators, for town councillors, and for Christian clerics and even ordinary laypeople, these perjuries could have diverse and judicially dangerous meanings – as they could for emperors and their lawyers, whenever this latter group took an interest in the problem.247 As we shall see, perjuries and false testimony were not static but dynamic realities, gradually transforming into criminal behaviours, grave sins, and canonical offences. To be sure, this process of development was neither continuous nor uniform, and much of the ancient rhetoric around perjuries never disappeared. Viewed in one way, Gregory of Tours’s perjury anecdotes are a perfect illustration of the classical theory of nefas, as an offence to be avenged directly by means of some sort of divine intervention.248 Nevertheless, Gregory’s conceptions were not simply identical with those of his classical forebears, and numerous sources suggest that Gregory and many of his contemporaries had come to regard perjuries as both profoundly sinful and humanly justiciable – leading to those conceptions of perjury and false witness which are better known to students of the European Middle Ages.

243 See pp. 50–68. 244 See pp. 140 nn. 263–4, 199–214 passim. 245 See pp. 128–9, 199–214. 246 Notably, Wood assumed a primarily testimonial or judicial context for his perjuries: see n. 46 above. 247 For examples of emperors who were more attuned to the problem of perjury, see ch. 2, ‘Criminalization’, pp. 61– 3, 83. 248 For cases of divine intervention, see e.g. Gregory of Tours, Historiae, 8.16; In gloria martyrum, 52, 57; Vitae patrum, 8.9. For an examples of the continuing use of the vocabulary of fas and nefas in the post-classical period, see p. 112 n. 97 below. 39

Chapter 2 Criminalization: Perjury and False Witness in Late Roman Law

The purpose of this chapter is twofold. First, I will argue that perjuries in particular began to be treated as criminal offences in the law of the late empire as early as the end of the third century CE; but secondly, and more fundamentally, I will attempt to identify a range of transitional texts which illustrate the shift toward the human justiciability of perjury in Latin legal tradition. As we saw in the introduction to this thesis, classicists and classical legal historians have held almost unanimously that oath violations were not and even could not be penalized by ‘mortal justice’, an act which ‘would have meant invading the sphere of divine justice’.1 Instead, perjuries were to be avenged directly, either by the god or gods whose names had been falsely invoked, and discouraged by extrajudicial means, through the application of the kinds of social pressure implied by infamia.2 As we shall see, however, a diversity of sources descending from the late Roman empire raise questions about this consensus. Especially for the post-classical period of Roman law, usually thought to date from the middle of the third century to the reign of Justinian (r. 527–65),3 a series of Latin writers from differing backgrounds recorded conflicting attitudes towards perjuries and false testimony. At one time or another, the writers of North African Christian martyr acts, North African provincial law manuals, Ravenna papyri, and even late imperial and post- imperial legislation all considered oath violations as humanly justiciable. These sources have come down to us from a wide swath of the western empire, and they envisioned formal perjury procedures for certain classes of person: notably soldiers and administrators,4 as well as the members of town councils.5 Whether perjuries and false testimony were assimilated to classical-

1 John Scheid, ‘Oral Tradition and Written Tradition in the Formation of Sacred Law in Rome’, in Clifford Ando and Jörg Rüpke, eds, Religion and Law in Classical and Christian Rome, Potsdamer Altertumswissenschaftliche Beiträge 15 (Stuttgart: Franz Steiner, 2006), 27; Ferdinando Zuccotti, Il giuramento nel mondo giuridico e religioso antico: Elementi per uno studio comparatistico (Milan: Giuffrè, 2000), 46. 2 For a summary of these views, see ch. 1, ‘Introduction’, § 1, ‘The Silence of Roman Law’, pp. 13–23. 3 See e.g. H. F. Jolowicz, Historical Introduction to the Study of Roman Law (2nd ed., Cambridge: Cambridge University Press, 1965), 6; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, tr. J. M. Kelly (Oxford: The Clarendon Press, 1966), 135–43; and Fritz Schulz, History of Roman Legal Science (Oxford: The Clarendon Press, 1946), 262–6. 4 See § 4, ‘Military and Administrative Perjuries: A Different Paradigm’, pp. 50–68 below. 5 See § 5, ‘Perjury on the Emperor: From the Severan Statute to The Opinions of Paul’, pp. 68–86. 40

era crimes like forgery, public extortion, or even treason,6 the people who made use of Roman law seem to have devised means for penalizing perjuries in practice.7

A central component of this chapter will be the concept of ‘crime’, whose meaning changed over the course of Late Antiquity. By contrast to modern definitions, which tend to emphasize the illegal or criminal behaviour in question,8 crimen during the classical period generally designated a procedure: the formal charge or accusation, by which an individual accuser denounced a criminal defendant in court.9 As we have seen, there was a limited number of such charges available, and these had been established by a succession of late republican and early imperial statutes. As presented in The Justinianic Code, the named statutes were ten in number, and they had criminalized a range of behaviours from treason to calumny, or false accusation.10 In the criminal procedure of the classical period, the accuser was supposed to file a written indictment, the inscription of accusation, which identified the statute under which the accusation was brought. If the relevant magistrate approved, a trial could then take place before the appropriate court or quaestio, comprising jurors drawn from a list compiled by the praetor.11 In the late classical and post-classical periods, this quaestio procedure became more bureaucratic and investigative. Though inscriptions were still required,12 power seems to have concentrated in the hands of a single magistrate, whom late classical jurists encouraged to take initiative in hunting down offenders13 and whose verdict replaced that of the former juries. Commonly known as the cognitio

6 See § 6, ‘Perjury, False Witness, and Forgery’, pp. 86–96. 7 On Roman law as a system used by imperial inhabitants, see e.g. Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), 1–6, 269–72, and passim. 8 See e.g. ‘Crime’, in Henry Campbell Black, Black’s Law Dictionary (rev. 4th ed., St Paul, MN: West, 1968), 444–5. 9 ‘Crimen’, in Adolf Berger, Encyclopedic Dictionary of Roman Law, Transactions of the American Philosophical Society NS 43/2 (Philadelphia: The American Philosophical Society, 1953), 418. 10 See p. 14 n. 70 above. Indeed, the criminal charge of calumny, together with the use of inscriptions of accusation – which generally bound the accuser to undergo the penalty of the condemned in the event that the accuser failed to prove his or her case (CTh 9.1.14 [a. 383], 9.1.19 [a. 423]) – served as the primary means by which Roman emperors and lawyers attempted to protect the integrity of the judicial process. See e.g. O. F. Robinson, ‘The Role of Delators’, in J. W. Cairns and P. J. du Plessis, eds, Beyond Dogmatics: Law and Society in the Roman World, Edinburgh Studies in Law 3 (Edinburgh: Edinburgh University Press, 2007), 206–20. 11 For overview see Jill Harries, Law and Crime in the Roman World (Cambridge: Cambridge University Press, 2007), 16–27. 12 CTh 9.1, CJ 9.2 passim. 13 See e.g. D 1.18.13.pr., 48.13.4.2. 41

procedure, this second process became the characteristic criminal and even civil proceeding of Late Antiquity, particularly in the empire’s provinces.14 Like the word crimen, criminal trials implied the use of certain procedures in the areas of proof and punishment. For example, torture was increasingly deployed against lower-status citizens, or humiliores, and even against some higher-status ones, the honestiores.15 Capital punishments were likewise stratified by class: honestiores were reportedly sent into exile, while humiliores were given to ‘the beasts’ or burned alive.16

This essentially procedural understanding of crime did not remain unchanged, however. While crimen retained its primary sense of ‘charge’ or ‘accusation’, the word also acquired more behavioural content. In the legislation of later Roman emperors, crimen could refer both to the accusation and to the wrongdoing which had occasioned it. A case in point is a statute which we will meet again, a constitution of the western emperors Valentinian I (r. 364–75) and Gratian (r. 367–83).17 In both criminal and civil disputes, Roman litigants occasionally wished to withdraw from the trials which had been initiated, and governments like Valentinian and Gratian’s were obliged to decide when and where such litigants would be allowed to withdraw. In a decree prohibiting any withdrawal from the most serious criminal trials, Valentinian and Gratian’s administration revealed that it thought of crimes as both procedures and behaviours:

In the case of many crimes (criminibus), annulment must not be granted even if the parties consent, as in those crimes in which the Imperial Majesty has been violated

14 Harries, Law and Crime, 28–42. 15 See e.g. Ramsay MacMullen, ‘Judicial Savagery in the Roman Empire’, Chiron 16 (1986): 147–66. 16 PS 5.29.1: ‘His antea in perpetuum aqua et igni interdicebatur: nunc uero humiliores bestiis obiciuntur uel uiui exuruntur, honestiores capite puniuntur.’ On this ‘dual penalty’ system stratified by class, see Peter Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford: The Clarendon Press, 1970), 103–78 passim. For overview of the very different procedures of the classical private law, see Humfress, Orthodoxy, 23–7, and Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 101–2. 17 See pp. 60–3 below. 42

or the fatherland attacked or betrayed or peculation has been committed … and all those crimes which are contained in the ancient law.18

This usage, where an activity like ‘violat[ing] the Imperial Majesty’ or ‘attack[ing] and betray[ing] the fatherland’ subsisted in the crimen itself, was even more pronounced in late antique moral literature. In the works of Augustine, bishop of Hippo, crimen was fully absorbed into the Judaeo- Christian vocabulary of sin and redemption. Commenting on The Epistle to Titus’s insistence that a person to be ordained should be, in Latin, ‘without crime’ (sine crimine),19 Augustine explained that crimen could not refer to sin in general (since everyone committed sins), but only to certain grave sins, notably murder, adultery, fornication, theft, fraud, sacrilege, and ‘other [sins] of this kind’.20 Augustine made a related point while preaching to his congregation at Hippo: certain grave sins (crimina), including false witness and rape, were obviously sinful – yet so were other behaviours, such as being a busybody or listening to gossip.21

Just as the meanings of crimen broadened, so too did the criminal law itself. This broadening, often considered as typical of the post-classical period,22 developed in a variety of ways, only some of which were theoretical. Amongst jurists, the republican and early imperial statutes were expanded through acts of creative interpretation, in which lawyers reasoned by analogy between similar cases.23 Perhaps more importantly, however, a larger proportion of the

18 CTh 9.37.2 = CJ 9.42.3 (a. 369): ‘[V]t plerisque criminibus ne consentientibus quidem partibus praestatur abolitio, ut sunt illa, in quibus aut violata maiestas, aut patria oppugnata vel prodita, aut peculatus admissus … omniaque ea, quae iure veteri continentur.’ 19 Titus 1:6–7. 20 Augustine, In Iohannis evangelium, 41.10, ed. D. Radbod Willems, CCSL 36 (Turnhout: Brepols, 1954), 363: ‘Ideo et apostolus Paulus quando elegit ordinandos uel presbyteros uel diaconos, et quicumque ordinandus est ad praeposituram ecclesiae, non ait: Si quis sine peccato est; hoc enim si diceret, omnis homo reprobaretur, nullus ordinaretur: sed ait: Si quis sine crimine est, sicuti est homicidium, adulterium, aliqua immunditia fornicationis, furtum, fraus, sacrilegium, et cetera huiusmodi.’ 21 Augustine, Sermones, 261. Notably, neither of these lists of crimina was that of a Roman lawyer: cf. ch. 1, ‘Introduction’, p. 14 n. 70. 22 See e.g. Harries, Law and Empire, 13, 162. 23 R. A. Bauman, ‘The Leges iudiciorum publicorum and Their Interpretation in the Republic, Principate, and Later Empire’, in Hildegard Temporini, ed., ANRW 2/13 (Berlin: Walter de Gruyter, 1980), 103–233. For the continuation of this process in Late Antiquity, see Humfress, Orthodoxy, 86–92. 43

imperial population seems to have been making use of Roman judicial processes, for both criminal and civil matters alike. In 212 CE, the emperor Caracalla (r. 198–217) bestowed Roman citizenship on nearly all free inhabitants of the empire, making them subject to the full spectrum of Roman law.24 Under the reforms of the emperors (r. 284–305) and Constantine (r. 306–37), the number of imperial provinces approximately doubled, so that local access to imperial justice presumably increased.25 With respect to criminal matters specifically, provincial governors were exhorted to track down various classes of offender, including the ‘sacrilegious’,26 and these displays of policing power may have relieved some of the burden on accusers when bringing offenders to court. Indeed, in certain cases – notably accusations of forgery – certain emperors dispensed with the requirement of an inscription altogether, facilitating criminal trials for forgery in particular.27 From a practical perspective, though any type of justice surely remained expensive,28 emperors also sought to limit the fees which court officials charged.29 If the complaints in imperial legislation are any guide, Roman courtrooms in Late Antiquity were often clogged,30 while governors’ cognitiones were empowered to handle cases extra ordinem – that is, outside the ‘order’ of the classically established crimes.31

Importantly, as the cognitiones extra ordinem might suggest, the number of behaviours which could result in criminal procedures also seems to have increased. Notably, the list of crimes furnished by Valentinian and Gratian’s government (treason, peculation, etc.) appeared to be

24 The long-term consequences of this development are disputed: Peter Garnsey, ‘Roman Citizenship and Roman Law in the Late Empire’, in Simon Swain and Mark Edwards, eds, Approaching Late Antiquity: The Transformation from Early to Late Empire (Oxford: Oxford University Press, 2006), 133–55. 25 For administrative expansion, see Timothy D. Barnes, ‘The Verona List’ and ‘Diocletian and the Provinces’, in idem, The New Empire of Diocletian and Constantine (Cambridge, MA: Harvard University Press, 1982), 201–25. For implications see e.g. David S. Potter, The Roman Empire at Bay, AD 180–395 (2nd ed., London and New York: Routledge, 2014), 392–3. 26 See p. 41 n. 13 above: ‘ut praesides sacrilegos latrones plagiarios conquirant’. 27 CTh 9.19.2 (a. 326, 320), 9.19.4 (a. 376). 28 Caroline Humfress, ‘Poverty and Roman Law’, in Margaret Atkins and Robin Osborne, eds, Poverty in the Roman World (Cambridge: Cambridge University Press, 2006), 183–203. 29 See e.g. CTh 1.29.5 = CJ 1.55.3 (a. 370, 373). 30 Constitutiones Sirmondianae, 1 (a. 333). 31 For this interpretation, see especially Harries, Law and Crime, 29–32. 44

indefinite, concluding vaguely with ‘all those crimes which are contained in the ancient law’.32 Possibly reflecting the greater use being made of Roman courtrooms, post-classical jurists conceded that certain rules might derive from custom, and that criminal and civil procedures could mix and mingle as they did so.33 One example of these tendencies is the case of magic (maleficium, mathematica), a religious or therapeutic behaviour which came to be criminalized in the law of the later empire. According to a 2003 study by James B. Rives, some magical practices were criminalized as early as the beginning of the classical period, when the late republican statute on homicides, the lex Cornelia de sicariis et veneficis (81 BCE), provided for wrongful deaths brought about through the use of poisons – substances which might be employed or manufactured in magical practices.34 Nevertheless, later Roman emperors proceeded to treat magic as a crime in its own right, dedicating entire chapters of both The Theodosian and Justinianic Codes’ books on criminal law to this one topic.35 Furthermore, as Rives points out, provincial magistrates probably enjoyed a considerable degree of latitude when determining exactly what behaviours constituted criminal ‘magic’. According to a North African juristic manual, The Opinions of Paul – another source which will prove important to this chapter – ‘those privy to the magic art’ (magicae artis conscii) were condemned to suffer ‘the supreme penalty’.36 Yet the text leaves ‘the magic art’ undefined, so that ‘[t]h[is] identification … was presumably the responsibility of the individual official’.37 If The Opinions of Paul can be believed, the later Roman empire thus allowed for variation in the administration of justice, and the classicizing rule of nullum crimen sine lege was not literally understood or enforced.38

32 See p. 43 n. 18 above, and cf. Simon Corcoran, The Empire of the Tetrarchs: Imperial Pronouncements and Government, AD 284–324 (Oxford: The Clarendon Press, 1996), 69–73. 33 PS 5.4.6: ‘Iniuriarum actio aut lege aut more aut mixto iure introducta est.’ 34 M. H. Crawford, ed., Roman Statutes, The Bulletin of the Institute of Classical Studies Suppl. 64, ii (London: The Institute of Classical Studies, 1996), no 50; James B. Rives, ‘Magic in Roman Law: The Reconstruction of a Crime’, Classical Antiquity 22/2 (2003): 313–39. 35 CTh 9.16, CJ 9.18. 36 PS 5.23.17 (tr. Rives, ‘Magic’, 329). 37 Rives, ‘Magic’, 334. 38 Cf. Fritz Schulz, Principles of Roman Law, tr. Marguerite Wolff (Oxford: The Clarendon Press, 1936), 173. 45

Hence ‘crime’ and ‘criminalization’ are useful categories of analysis for understanding changes to Roman law in the late antique period, and I hope to show that perjury and false witness moved in the same direction that magic did. If magic, which was an offence both religious in nature and undefined by any lex, could be treated as a criminal offence, then might not oath violations have been treated similarly? Like perjury, magic fell within the domain of what classical Romans might have termed as fas, or religious law, which has traditionally been seen as holding exclusive jurisdiction over perjuries.39 For example, in The Natural History of , medical practices which would have invited criminal accusations of magic under the later empire were regularly described as nefas. Commenting on reports that epileptics consumed the blood of gladiators, Pliny asked rhetorically: ‘To look at human entrails is considered sin (nefas); what must it be to eat them?’40 Commenting on the magi, whose ‘magical art’ The Opinions of Paul rejected, Pliny criticized their practices as ‘the most fraudulent of arts’, tracing their origins to ‘the art of the poisoner’ (proscribed by statute) and attractive to publicly disgraced rulers, such as Nero.41 Moreover, late Roman emperors continued to employ the rhetoric of violated religious and moral law in their own constitutions on magic. One statute declared nocturnal prayers against fas (‘nefarias preces’) to be illegal,42 while another explained that purchasing or even touching funerary monuments was a punishable offence (nefas).43 In James Rives’s view, such legislation evinces an increasing suspicion of ‘religious deviance’, which may well have ensnared perjurors too.44

Yet there are still further reasons to look for change in the law of perjuries and false testimony in the late empire. According to Jill Harries, the end of the third and beginning of the fourth centuries CE witnessed the origins of a ‘culture of criticism’, in which Roman emperors, their lawyers, and Christian bishops began aggressively criticizing the false accusations, false

39 See ch. 1, ‘Introduction’, pp. 21–2. 40 Pliny the Elder, Naturalis historia, 28.2.5, tr. W. H. S. Jones, Pliny: Natural History, Books 28–32, LCL 418 (Cambridge, MA: Harvard University Press, 1963), 4–7: ‘Aspici humana exta nefas habetur, quid mandi?’ 41 Pliny the Elder, Naturalis historia, 30.1.1, 30.6.18, tr. Jones, Pliny, 278–9, 288–9: ‘fraudulentissima artium’, ‘veneficas artes’. For Nero, see Pliny the Elder, Naturalis historia, 30.5.14–30.6.17. 42 CTh 9.16.7 (a. 364). 43 CTh 9.17.2 = CJ 9.19.3 (a. 349). 44 Rives, ‘Magic’, 317, 327, 333–5. 46

documents, and false judgments of Roman litigants, witnesses, and judges.45 For Harries, this culture benefited from a strong legislative impetus. As we have seen, the government of the emperor Constantine expanded the criminal statute on forgeries, the lex Cornelia testamentaria nummaria or lex Cornelia de falsis (81 BCE), by dispensing with the necessity of an inscription.46 Decurions, or the members of town councils, were made subject to the use of torture,47 and criminal defendants lost whatever presumption of innocence they may originally have had: ‘The investigation shall not be incumbent upon the accuser alone, nor shall the entire proof be assigned to him, but the judge shall be neutral between the two parties.’48 In addition to such policy changes, the ‘culture of criticism’ was also marked by a strong rhetorical component, in which Constantine’s government in particular expressed grave doubts about the honesty and integrity of the cases coming before it. In one example, the Constantinian administration raged against fraudulent sales of land, allegedly practised by provincial landowners:

With no shame or pause for rest or any interval of hesitation, now individuals and now nations are rushing everywhere into our gaze, presenting uniform complaints in almost the same words, so that the credibility of the petitioners cannot be established or the quality of allegations distinguished. … We are greatly moved by these things, fearing that – seduced by someone’s subtle tricks for loathsome gain – people should sell their property without its tax liability, and afterwards request the support of our clemency; and thus, for the cunning mixers of shrewdness’s schemes, when we are least suspecting of the secrets of deceivers’ plots … we should grant relief to those doing injury, to the detriment of the tax registration. These frauds, these deceits, these verbal tricks we prohibit by law. … Solemnity must be observed in all sales, so that this fallacious and fraudulent selling may utterly perish, inwardly entombed.49

45 To be sure, these complaints do not mean that the people who used late Roman law courts were necessarily more corrupt than their forebears were, but that critics ‘were more often prepared to say so’ (Harries, Law and Empire, 171). See also eadem, ‘Constructing the Judge: Judicial Accountability and the Culture of Criticism in Late Antiquity’, in Richard Miles, ed., Constructing Identities in Late Antiquity (London and New York: Routledge, 1999), 224–43. 46 See p. 44 n. 27 above. For the statute, see J. A. Crook, ‘The Lex Cornelia “de falsis”’, Athenaeum NS 65 (1987): 163–71. 47 CTh 9.19.1 = CJ 9.22.21 (a. 316). 48 CTh 9.19.2 = CJ 9.22.22 (a. 326, 320): ‘Nec accusatori tantum quaestio incumbat nec probationis ei tota necessitas indicatur, sed inter utramque personam sit iudex medius.’ 49 Fragmenta Vaticana, 35.1–7, ed. Giovanni Baviera, FIRA(2) 2 (Florence: S. A. G. Barbèra, 1968), 469–70: ‘Nulla uerecundiae uel quietis mora uel quolibet interuallo cunctandi passim nunc singuli, modo populi proruentes nostros in 47

In such a legal and rhetorical environment, it would be surprising if other legal falsehoods did not attract heightened scrutiny.50

For those historians who have insisted that perjury was never a crime in Roman law, even during the age of Constantine,51 one way in which they have maintained their argument is to distinguish rigorously between perjuries and false testimony. Whereas oaths were used to solemnize many different sorts of legal and extra-legal act,52 the testimony of witnesses was qualitatively different, and in classical times may not have required an oath.53 In Franz von Liszt’s Meineid und falsches Zeugniss, the distinction proved to be crucial, for as both he and many other legal historians have recognized, false witness (like magic) began to be criminalized during the classical period. In the lex Cornelia de sicariis, the ordinary statute on homicides,54 giving false evidence in a capital case was treated as a kind of judicial murder.55 According to Liszt, such provisions furnished the basis for a thoroughgoing distinction between perjuries, on the one hand, and false testimony, on the other. Whereas the former were ostensibly injurious to the gods alone, false testimonies were injurious to other citizens, so that judicial remedies might be sought for them:

obtutus sic uniformes querellas isdem fere sermocinationibus uolutarunt, ut nec interpellantium credulitati ualeret occurri nec allegationum qualitas disparari. … His sumus ualde permoti, uerentes ne alicuius calliditatibus auersabili emolumento persuasi res suas uenderent sine censu ac post subsidia nostrae mansuetudinis precarentur, itaque uersutis calliditatis commenta miscentibus, dum insidiarum fallentium non suspicamur arcana … detrimento census nocentes leuaremus. Has fraudes, hos dolos, istas argutias lege prohibemus. … Ita ergo uenditionum omnium est tractanda sollemnitas, ut fallax illa et fraudulenta uenditio penitus sepulta depereat.’ 50 As the urban prefect Symmachus asked, with reference to senatorial oath taking in 384: ‘Qua religione mens falsa terrebitur, ne in testimoniis mentiatur?’ (Symmachus, Relationes, 3.5, ed. Michaela Zelzer, CSEL 82/3 [Vienna: Hölder–Pinchler–Tempsky, 1982], 24). On moralizing language in late antique legislation, see e.g. Corcoran, Empire, 3. 51 Cf. ch. 1, ‘Introduction’, p. 14 n. 71. 52 See ch. 1, ‘Introduction’, pp. 37–8. 53 But see Quintilian, Institutio oratoria, 5.7.5. 54 See p. 45 n. 34 above. 55 Crawford, Roman Statutes, ii, no 50, p. 752: ‘falsumue testimonium dolo malo dixerit, <…> quo quis publico iudicio rei capitalis condemnaretur’. 48

Conditions with respect to false witness developed differently from those with respect to perjury. Here, by contrast, the direct assault on an individual’s most important legal possessions, on his life and body, on the honour, freedom, and fortune of the citizen, had to render the punishment of the offender imminent – allowing the nature of false witness, as an offence to be punished in the general interest, to attain legal recognition earlier than was the case with perjury.56

Yet as we shall see, multiple late antique sources do not support such a rigorous distinction. To take just one example, the legislation of one of Constantine’s successors seemed to speak of an undifferentiated crimen mendacii, or ‘crime of lying’, which might refer to an act of false witness, an act of perjury (where an oath was now used), an act of forgery, or even an act of calumny.57 Once again, Liszt’s case is overstated, and the presence of some acts of false witness in the lex Cornelia de sicariis is not compelling evidence for the unpunishability of perjuries in general.

Indeed, there was at least one part of the imperial population for whom perjuries were clearly punishable, especially in sources descending from the late empire. As we shall see below, soldiers and imperial administrators were considered bound by oath to serve their emperor, and oath violations by such persons were subject to penalties in both civilian and military courts.58 Once we have established the justiciability of perjuries in this context, we will go on to reconsider the most important of the classical sources which have formed the basis of the classicist consensus. Amongst these sources, the rescript on perjury issued by the late classical emperor Severus Alexander (r. 222–35)59 turns out to preserve evidence that different imperial governments – most notably those of his immediate predecessors, Septimius (r. 193–211) and Caracalla – pursued a very different path with respect to perjuries.60 Viewed in the light of The Opinions of Paul, the juristic manual which also treated magic as a crime, the outlines of a Roman criminal procedure

56 Franz von Liszt, Meineid und falsches Zeugniss: Eine Strafrechts-geschichtliche Studie (Vienna: Manz, 1876), 25. 57 CTh 11.39.10 = CJ 1.3.8 (a. 385, 386). For discussion see pp. 91–3 below. 58 Acta Marcelli; cf. CTh 9.37.2 = CJ 9.42.3 (a. 369). 59 See ch. 1, ‘Introduction’, pp. 3, 15–17. 60 CJ 4.1.2 (a. 223) and D 12.2.13.6. 49

for ordinary perjuries can begin to emerge.61 Finally, we will conclude this chapter with an examination of perjury’s association with false witness, showing how both of these offences came to be partially assimilated to the established crime of forgery.62 Throughout this chapter, I will be at pains to emphasize the social implications of perjury’s criminalization, especially for the military, the bureaucracy, and the members of town councils. As criminal conceptions and procedures broadened, and as different areas of religious, criminal, civil, and even customary law all mixed and intertwined, the formal discipline of perjury came to play an important but underappreciated role in the late antique ‘culture of criticism’ – deployed against those whom critics perceived to be undermining law and justice.

4 Military and Administrative Perjuries: A Different Paradigm

By contrast to the civilian population, where the discussion of perjury has been dominated by the concepts of fas and nefas, members of the Roman military most likely faced justice for their oath violations which was ‘imminent’.63 Indeed, any movement toward the criminalization of perjuries in this area may have been less detectible. For reasons of its own, the Roman military had long possessed an interest in the discipline of perjuries.64 So far as we can tell, both the republican and the early imperial army relied on oath taking to a considerable extent, both for internal organization and for the conduct of daily business. During the second through first centuries BCE–CE, according to literary reports, Roman soldiers were supposed to swear oaths around the time of their enlistment.65 Soldiers reportedly swore when transferring their allegiance

61 Martin David and H. L. W. Nelson, ‘Apographum, Text und philologischer Kommentar’, in G. G. Archi et al., eds, Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1956), 7. 62 LRV 11.14.5 + Interp.; LV 2.4.14 (Antiqua). 63 Cf. p. 49 n. 56 above. 64 C. E. Brand, Roman Military Law (Austin: The University of Texas Press, 1968), 79, 97–8. 65 Polybius, Historiae, 6.21; Livy, Ab urbe condita, 22.38.2–5; Dionysius of Halicarnassus, Antiquitates Romanae, 10.18.2, 11.43.2; Frontinus, Strategamata, 4.1.4. For discussion see J. B. Campbell, The Emperor and the Roman Army, 31 BC–AD 235 (Oxford: The Clarendon Press, 1984), 19–32, and Alexandra Holbrook, ‘Loyalty and the Sacramentum in the Roman Republican Army’, MA thesis, McMaster University, 2003. 50

from one general to another,66 in order to assemble at the start of a campaign,67 and when setting up camp.68 Of the oaths appearing in the standard published sources of pre-Justinianic Roman law,69 at least two pertained to military affairs. In May 37 CE, two months after the emperor Caligula (37–41 CE) had ascended to the throne,70 the inhabitants of the Roman military installation at Alvega, Portugal, swore an oath of allegiance to the new emperor. The phrasing of the oath, recorded on bronze, suggested that the members of this community swore individually; everyone promised to be ‘hostile’ to the emperor’s enemies, whom they would pursue ‘by means of arms, in murderous war, on both land and sea’.71 Meanwhile, in c.88–9 CE, a former military officer by the name of Marcus Valerius Pollia swore an oath in the context of the veterans’ policy of the emperor Domitian (r. 81–96 CE). According to the oaken tablet, Valerius ‘testified and stated on oath’ that all three of his children had been born during the period of his military service (in militia sibi). They would thus enjoy both Roman citizenship and the privileges of the emperor’s immunity, the subject of Domitian’s legislation.72

This military reliance on the oath seems to have continued during Late Antiquity. In The History of Ammianus Marcellinus, an ex-military officer writing toward the end of the fourth century,73 late imperial generals and soldiers swore oaths repeatedly. In one episode, Ammianus reports that he himself swore an oath, while he and his fellow officers were in pursuit of an imperial pretender, Silvanus the Frank (d. 355). According to Ammianus, he and the other officers led by

66 Julius Caesar, De bello civili, 1.23.5. 67 Polybius, Historiae, 6.26.2–4. 68 Polybius, Historiae, 6.33.2. 69 See ch. 1, ‘Introduction’, p. 38. 70 Tacitus, Annales, 12.53, and Suetonius, De vita Caesarum, C. Cal. 12–13. 71 FIRA(1) 1, ed. Karl Georg Bruns (rev. 7th ed., Tübingen: I. C. B. Mohr, 1909), no 101, p. 277: ‘Ex mei animi sententia, ut ego iis inimicus ero, quos G. Caesari Germanico inimicos esse cognovero, et si quis periculum ei salutiq(ue) eius infert inferetque armis bello internicivo terra mariq(ue) persiqui non desinam.’ On Alvega, Portugal, see S. J. Keay, Roman (London: The British Museum, 1988), 35. 72 FIRA(2) 1, ed. Salvatore Riccobono (Florence: S. A. G. Barbèra, 1968), no 76, p. 427: ‘Ibi M. Valerius M. f. Pol(lia) Quadratus coram ac praesentibus eis, | qui signaturi erant, testatus est iuratusque dixit per I(ouem) O(ptimum) M(aximum) et Genium | sacratissimi Imp(eratoris) Caesaris Domitiani Aug(usti) Germanici in militia | sibi L. Valerium Valentem et Valeriam Heraclun et Valeriam | Artemin natos esse.’ 73 John Matthews, ‘Composition’, in idem, The Roman Empire of Ammianus (2nd ed., Ann Arbor: The Michigan Classical Press, 2007), 17–32. 51

the magister equitum Ursicinus made use of the oath while formulating their plan of attack. ‘[I]n the end,’ the historian remembered, ‘after often changing our minds through fear, we resolved to search with the greatest pains for discreet representatives, to bind our communication with solemn oaths’, and to seek the support of two neighbouring Gallican tribes, which up until that point had been supporting Silvanus.74 On other occasions, Ammianus highlighted the importance of the oaths of enlistment, sworn at the time of a soldier’s recruitment. In 365, another imperial pretender, Procopius (d. 366), allegedly reminded the members of two opposing legions of the oaths that they had sworn under the previous emperor (and Procopius’s own cousin), Julian the Apostate (r. 361– 3). In an elaborately narrated battlefield scene, the pretender addressed a soldier whom he recognized in the opposing ranks: ‘So this is the old loyalty of Roman armies and their oaths bound by firm religious rites! … No, no – follow rather the house of your own royal line.’75 Intriguingly, Procopius’s arguments seem to have worked, and may suggest that the oaths of enlistment did not transfer to a new emperor automatically. The legion in question went over to Procopius, ‘swearing … that [he] would be invincible’.76

From a legal and legislative point of view, the oath sworn at the time of enlistment was probably the most important. Dozens of imperial constitutions required, regulated, or otherwise referred to this sacramentum militiae, which became synonymous with military membership and office in post-classical legal usage.77 Although the exact form of the oath and the regularity with which it was sworn remain uncertain, the most complete account of the procedure is to be found

74 Ammianus Marcellinus, Res gestae, 15.5.30, tr. J. C. Rolfe, Ammianus Marcellinus: History, Books 14–19, LCL 300 (Cambridge, MA: Harvard University Press, 1939), 152–3: ‘[S]ederatque tandem mutatis prae timore saepe sententiis, ut quaesitis magna industria cautis rei ministris, obstricto religionum consecratione colloquio, Bracchiati sollicitarentur atque Cornuti.’ 75 Ammianus Marcellinus, Res gestae, 26.7.16, tr. J. C. Rolfe, Ammianus Marcellinus: History, Books 20–26, LCL 315 (Cambridge, MA: Harvard University Press, 1940), 620–1: ‘“En” inquit “cana Romanorum exercituum fides et religionibus firmis iuramenta constricta! … Quin potius sequimini culminis summi prosapiam.”’ 76 Ammianus, Res gestae, 26.7.17, tr. Rolfe, Ammianus, 622–3: ‘testati …invictum Procopium fore’. 77 See e.g. CTh 6.23.1 (a. 415), 6.27.3.3(1) (a. 380), 7.1.4 (a. 350, 349), 7.1.6 (a. 368, 370, 373), 7.8.15 (a. 430, 433), 7.13.5–7 (aa. 368, 370, 373; 370; 375), 7.20.12.3 (a. 400), 8.1.8 (a. 363), 8.4.4 (a. 349), 8.4.13 (a. 382), 8.4.22 (a. 412), 10.22.4 (a. 398), 11.7.21 (a. 412), 11.12.3 (a. 365), 12.1.10 (a. 325), 12.1. 42–3 (aa. 354, 346; 355), 12.1.87 (a. 381), 12.1.95 (a. 383), 12.1.113 (a. 386), 12.1.147 (a. 416), 12.1.168 (a. 409), 12.1.179.2 (a. 415), 12.1.181.1 (a. 416), 12.6.5 (a. 365), 13.1.2 (a. 360, 357), 16.5.48 (a. 410), 16.8.24 (a. 418). See also Stefan Esders, ‘Les origines militaires du serment dans les royaumes barbares (Ve–VIIe siècles)’, in Marie-France Auzépy and Guillaume Saint-Guillain, eds, Oralité et lien social au moyen âge (Occident, Byzance, Islam): Parole donnée, foi jurée, serment, Monographies 29 (Paris: Collège de France, 2008), 19–26. 52

in a late antique text, The Epitome of Military Science by the western imperial administrator, Flavius Vegetius Renatus.78 Probably composed during the first half of the fifth century,79 the bureaucrat’s text recorded both the circumstances under which the sacramentum was supposed to be administered and a form of the words which it might use. By Vegetius’s time, apparently several decades after Ammianus was writing,80 the oath was already Christianized; yet the particular promises made on oath most likely had ancient roots:

So when recruits have been carefully selected who excel in mind and body, and after daily training for four or more months, a legion is formed by order and auspices of the invincible Emperor. The soldiers are marked with tattoos in the skin which will last and swear an oath, when they are enlisted on the rolls. That is why the oaths are called the ‘sacraments’ of military service. They swear by God, Christ, and the Holy Spirit, and by the Majesty of the Emperor which second to God is loved and worshipped by the human race. For since the Emperor has received the name of the ‘August’, faithful devotion should be given, unceasing homage paid to him as if to a present and corporeal deity. For it is God whom a private citizen or a soldier serves, when he faithfully loves him who reigns by God’s authority. The soldiers swear that they will strenuously do all that the Emperor may command, will never desert the service, nor refuse to die for the Roman State.81

78 Michael B. Charles, Vegetius in Context: Establishing the Date of the Epitoma Rei Militaris, Historia Einzelschriften 194 (Stuttgart: Franz Steiner, 2007), 23–6, 39–50. 79 Charles, Vegetius, 183–4. 80 Charles, Vegetius, 144–54. 81 Vegetius, Epitoma rei militaris, 2.5, ed. Alf Önnerfors, Vegetius: Epitoma rei militaris (Stuttgart and Leipzig: Teubner, 1995), 60–2: ‘Diligenter igitur lectis iunioribus animis corporibusque praestantibus, additis etiam exercitiis cottidianis quattuor uel eo amplius mensuum, iussu auspiciisque inuictissimi principis legio formatur. Nam uicturis in cute punctis milites scripti, cum matriculis inseruntur, iurare solent; et ideo militiae sacramenta dicuntur. Iurant autem per Deum et per Christum et per sanctum Spiritum et per maiestatem imperatoris, quae secundum Deum generi humano diligenda est et colenda. Nam imperator cum Augusti nomen accepit, tamquam praesenti et corporali Deo fidelis est et praestanda deuotio et inpendendus peruigil famulatus. Deo enim uel priuatus uel militans seruit, cum fideliter eum diligit qui Deo regnat auctore. Iurant autem milites omnia se strenue facturos, quae praeceperit imperator, numquam deserturos militiam nec mortem recusaturos pro Romana re publica’ (tr. N. P. Milner, Vegetius: Epitome of Military Science, Translated Texts for Historians 16 [2nd ed., Liverpool: Liverpool University Press, 1996], 34–5). 53

While the theological content of this oath is quite striking,82 the individual promises to be made – to follow orders, not to run away, and to die if necessary – echo similar statements to be found in the older accounts of the sacramentum militiae.83 Nevertheless, these promises furnished a legal basis for disciplining the soldiers’ behaviour, and as with several of the other oath texts which we will see, this one appears to have been enforcement-oriented.84 On the one hand, Vegetius’s procedure evidently attempted to persuade its audience, invoking supernatural authorities (‘God, Christ, and the Holy Spirit’) and concepts (‘the Majesty of the Emperor’) which were dear to at least some portion of the imperial population.85 Moreover, Vegetius included a persuasive explanation, advising his audience – probably an official one86 – that ‘second to God [the emperor’s majesty is to be] loved and worshipped by the human race. … For it is God whom a private citizen or a soldier serves, when he faithfully loves him who reigns by God’s authority.’87 On the other hand, the procedure described by Vegetius also contains evidence of more coercive mechanisms. Most notably, new recruits were to be ‘marked with tattoos in the skin which will last’ (victuris … punctis), a practice which would have rendered any swearers of the oath visible.88 Although some historians have thought that this nota militaris was imposed through branding,89 an actual pricking or tattooing of the skin seems more likely. Branding was typically reserved for

82 See pp. 68ff. below. 83 Cf. Polybius, Historiae, 6.21 (following orders); Livy, Ab urbe condita, 22.38.2–5 (not running away); Dionysius of Halicarnassus Antiquitates Romanae, 11.43.2 (following orders, not running away). 84 For enforcement in the penalty clauses of Visigothic oaths, cf. ch. 4, ‘Early Medieval Case Study’, p. 192 nn. 245– 8. 85 For an evocation of military religious fervour prior to the age of Christianization, see e.g. Tertullian, Apologeticum, 16.8, ed. E. Dekkers, CCSL 1 (Turnhout: Brepols, 1954), 116: (with reference to the legions’ standards): ‘Religio tota castrensis signa ueneratur, signa adorat, signa iurat, signa omnibus deis praeponit.’ 86 Charles, Vegetius, 39–50. 87 See p. 53 n. 81 above: ‘[Q]uae secundum Deum generi humano diligenda est et colenda. … Deo enim uel priuatus uel militans seruit, cum fideliter eum diligit qui Deo regnat auctore.’ For the ethos of service amongst administrators like Vegetius, see Christopher Kelly, Ruling the Later Roman Empire (Cambridge, MA: Harvard University Press, 2004). 88 See p. 53 n. 81 above. 89 A. H. M. Jones, The Later Roman Empire, 284–602: A Social, Economic, and Administrative Survey, i (repr., Baltimore: The Johns Hopkins University Press, 1986), 616–17; see also G. W. H. Lampe, The Seal of the Spirit: A Study in the Doctrine of Baptism and Confirmation in the New Testament and the Fathers (New York: Longmans, Green, and Co., 1951), 243. 54

convicts and for animals,90 and soldiers were honourably marked – possibly with the emperor’s name,91 possibly with that of their unit or commanding officer.92 In Augustine’s view, the practice was sufficiently widespread that those who did not have a tattoo could obtain one,93 and he himself compared the tattoo’s permanence with that of baptism.94

Both the more persuasive and the more coercive aspects of Vegetius’s description suggest that administrators like Vegetius took the oath of enlistment seriously. Imperial constitutions back this impression up: numerous pieces of legislation deal with soldiers and their desertions.95 As we shall see in a moment, perjury of the sacramentum militiae came to be at issue in at least several of these cases, but we must also remember the importance that military service had for the empire as a whole. Defensively, soldiers protected the empire’s borders, and many (the so-called limitanei) were stationed along the frontiers of the Rhine, , and Euphrates rivers.96 At various points in late antique history, membership in the military ranged from anywhere around 300,000 to 600,000 men, depending upon modern calculations based on the Notitia dignitatum, a fourth- and early fifth-century administrative document.97 While this figure represented only a small fraction of the empire’s estimated 50–60 million inhabitants,98 soldiers nonetheless

90 C. P. Jones, ‘Stigma: Tattooing and Branding in Graeco-Roman Antiquity’, The Journal of Roman Studies 77 (1987): 151–2; W. Mark Gustafson, ‘Inscripta in fronte: Penal Tattooing in Late Antiquity’, Classical Antiquity 16/1 (1997): 79–105. 91 Ambrose, De obitu Valentiniani, 58.5–7. 92 Vegetius, Epitoma, 1.8; Augustine, In Iohannis evangelium, 6.15–16. 93 Augustine, De baptismo, 1.4.5. 94 For discussion of all these examples, see Bradley Mark Peper, ‘On the Mark: Augustine’s Baptismal Analogy of the Nota Militaris’, Augustinian Studies 38/2 (2007): 353–63. Curiously, Augustine’s commentary included the observation that deserters themselves sometimes wished to be marked with the tattoos following their desertion (De baptismo, 1.4.5), suggesting that the tattoo constituted prima facie evidence against military perjury and that legal and military officers may have had additional enforcement mechanisms at their disposal. 95 See e.g. CTh 7.18.1–17 passim, 9.37.2 (a. 369). In the classical period, desertion seems to have been most commonly (and dangerously) discussed under the rubric of transfugium to the enemy: D 49.15–16 passim; cf. Brand, Roman Military Law, 101. 96 See e.g. A. D. Lee, War in Late Antiquity: A Social History (Oxford: Blackwell, 2007), 10–12, 87, 109, 150, 164– 5, 175. 97 For a summary and bibliography of these estimates, see Lee, War, 74–9. The high figure of 600,000 is favoured in Jones, Later Roman Empire, i, 679–86. 98 Walter Scheidel, ‘Progress and Problems in Roman Demography’, in Scheidel, ed., Debating Roman Demography (Leiden: Brill, 2001), 63–4. 55

possessed an outsized political, social, and economic importance – as Marcus Valerius Pollia’s oath concerning the status of his children might imply.99 Numerous post-classical emperors hailed from the military class,100 and the need to pay, provision, and transport the troops drove the collection of taxes, the distribution of goods and services (notably grain and olive oil), and the construction and maintenance of roads.101 At the same time, soldiers could serve as important agents of cultural change: according to a recent study by John F. Shean, early Christians were probably overrepresented in the military.102 If the sacramentum militiae was sworn with any regularity, then at any given time a hugely significant political, social, and economic cross-section of society was considered to be bound by oath, partially governed by rules and procedures which were particular to it. By contrast to civilian trials, which could drag on for months or years – even in criminal cases103 – military justice was often swift, and soldiers had an unusual interest in policing each other’s observance of their oaths.

Perhaps ironically, one of the earliest pieces of evidence for the penalization of perjuries in practice arises from the early Christian encounter with the Roman military. In The Acts of Marcellus, a North African Christian martyr act probably composed shortly after the events in question,104 a military officer or centurion, Marcellus, is tried and convicted of violating his military enlistment oath. According to this text, the proceedings took place at Tingis in , on 30 October 298.105 The occasion was ceremonial: several months previously, Marcellus had publicly protested the celebration of the emperor Diocletian’s birthday, and ‘reject[ing] these

99 See p. 51 n. 72 above. 100 See e.g. Michael Whitby, ‘Emperors and Armies, AD 235–395’, in Simon Swain and Mark Edwards, eds, Approaching Late Antiquity: The Transformation from Early to Late Empire (Oxford: Oxford University Press, 2006), 156–86. 101 See e.g. the collection of essays in Paul Erdkamp, ed., The Roman Army and the Economy (Amsterdam: J. C. Gieben, 2002). 102 John F. Shean, ‘Evidence for the Presence of Christians in the Roman Army’, in idem, Soldiering for God: Christianity and the Roman Army (Leiden: Brill, 2010), 177–215. Shean’s analysis relies particularly on the evidence of inscriptions: ibid., 183–8. 103 Constantine and his successors tried to limit criminal trials to a year: CTh 9.1.2 (a. 319), 9.19.2.2 (a. 326, 320), 9.36 passim. 104 See pp. 57–9 below. 105 Acta Marcelli, 3.1 (recensio N), ed. Herbert Musurillo, The Acts of the Christian Martyrs (Oxford: The Clarendon Press, 1972), 256: ‘Fausto et Gallo consulibus III kalendas nouembris apud Tingi’. 56

pagan festivities … thr[ew] down his soldier’s belt in front of the legionary standards’.106 Immediately responding to the affront, Marcellus’s fellow soldiers arrested and threw him into prison,107 and forwarded his case to the court of the provincial governor, identified as one Astasius or Fortunatus.108 Fortunatus in turn transferred Marcellus’s case to the court of a deputy for the praetorian prefects, identified as one Aurelius Agricolanus, who then heard the case at Tingis on 30 October.109 After Marcellus confessed to ‘throw[ing] down the symbols of [his] military oath’ (proiceres sacramenta),110 the deputy for the prefects proceeded to condemn and sentence him:

Agricolanus said: ‘What Marcellus has done merits punishment according to military rules. And so, whereas Marcellus, who held the rank of centurion, first class, has confessed that he has disgraced himself by publicly renouncing his military oath (abiecto … sacramento pollui se dixit), and has further used expressions completely lacking in control as are recorded in the report of the prefect, I hereby sentence him to death by the sword.’111

A variant version of the text reads: ‘Whereas Marcellus has publicly rejected and defiled the oath of the centurion’s rank in which he served.’112

According to the historians who have examined it, this account has a high degree of historical verisimilitude. Whereas numerous Christian martyr acts were composed generations and

106 Acta Marcelli, 1.1 (recensio M), ed. and tr. Musurillo, Acts, 250–1: ‘Marcellus quidam … profana refutans conuiuia, reiecto etiam cingulo militari coram signis legionis quae tunc aderat.’ 107 Acta Marcelli, 1.2 (recensio M), ed. Musurillo, Acts, 250: ‘stupentes autem milites … apprehensum eum in custodia coniecerunt’. 108 Acta Marcelli, 1.1–3. 109 Acta Marcelli, 2.2–3.1. 110 Acta Marcelli, 4.2 (recensio M), ed. and tr. Musurillo, Acts, 252–3. 111 Acta Marcelli, 5.1 (recensio M), ed. and tr. Musurillo, Acts, 254–5: ‘Agricolanus dixit: Ita se habent facta Marcelli ut haec disciplina debeant uindicari. Atque ita Marcellum, qui centurio ordinarius militabat, qui abiecto publice sacramento pollui se dixit, et insuper apud acta praesidialia uerba furoris plena deposuit, gladio animaduerti placet.’ 112 Acta Marcelli, 5.1 (recensio N), ed. and tr. Musurillo, Acts, 258–9: ‘Marcellum qui centurionatum in quo militabat ablatum publice sacramentum polluit.’ 57

even centuries after the events which they recorded,113 The Acts of Marcellus rank amongst the few which seem roughly contemporary with the events in question.114 The Acts appear to be largely constructed around official court documents generated by the magistrates, Fortunatus and Agricolanus. Notably, the majority of the text consists of quotations from them,115 and the presence of the court secretary is recorded;116 the Christian compiler has added very little in the way of editorial comment.117 With respect to the two magistrates, the compiler appears to have made a mistake: Fortunatus was not the governor of , but has been identified as the prefect for the legio II Trajana, part of which was stationed in Mauretania at the time.118 Other aspects of the narrative conform to what we know of Roman military culture. Marcellus’s dramatic gesture of deposing his military belt in front of the legion’s standards corresponds to the testimony of another third-century North African, the Christian writer Tertullian, concerning the significance of the legionary standards to Roman soldiers.119 Celebrations for the emperor’s birthday, including sacrifices, are recorded in a liturgical calendar, the Feriale Duranum, which was in use at a Roman military installation in Syria.120 Intriguingly, although Diocletian is represented as the reigning emperor, the text makes no mention of the so-called ‘Great’ or ‘Diocletianic Persecution’, which is dated to a slightly later period, beginning in 303 – further underscoring the historical veracity of the text.121 The text has also been compared with a second North African martyr act, The Acts of Maximilian, where irregularities with respect to oath taking likewise lead to the trial and execution

113 See e.g. Lucy Grig, ‘Torture and Truth in Late Antique Martyrology’, Early Medieval Europe 11/4 (2002): 334–5. 114 Herbert Musurillo, ‘Introduction’, in Musurillo, ed., The Acts of the Christian Martyrs (Oxford: The Clarendon Press, 1972), xxxvii–xxxix. 115 Acta Marcelli, 1.3–5.1. 116 Acta Marcelli, 3.1 (recensio M), ed. Musurillo, Acts, 252: ‘ex officio dictum est’. 117 In recension M, the compiler of the text appends a short comment: ‘Cum ad supplicium ducereretur, idem Marcellus dixit: Agricolane, Deus tibi bene faciat. Sic decebat Marcellum gloriosum martyrem de hoc recedere saeculo’ (Acta Marcelli, 5.2 [recensio M], ed. Musurillo, Acts, 254). 118 ‘Legio (II Traiana)’, in Georg Wissowa, ed., Paulys Realencyclopädie der classischen Altertumswissenschaft, xii (2nd ed., Stuttgart: Alfred Druckenmüller, 1925), col. 1491; René Cagnat, L’armée romaine d’Afrique et l’occupation militaire de l’Afrique sous les empereurs (2nd ed., Paris, 1912), 736ff. 119 Tertullian, Apologeticum, 16.8. 120 R. O. Fink, A. S. Hoey, and W. F. Snyder, ‘The Feriale Duranum’, Yale Classical Studies 7 (1940): 41–9 passim. 121 See e.g. P. S. Davies, ‘The Origin and Purpose of the Persecution of AD 303’, The Journal of Theological Studies NS 40/1 (1989): 66–94. 58

of a (prospective) Roman soldier.122 Finally, even if all or part of The Acts of Marcellus have been forged, the document still speaks to the expectations of a broader western imperial audience. A variant version was produced for a Spanish setting, apparently at León,123 and the court secretary went on to star in a hagiographical work of his own, The Acts of Cassianus.124

As The Acts of Marcellus make clear, perjury was believed to be centrally at issue in Marcellus’s trial and execution. The text quickly focuses on Marcellus’s obligations under the sacramentum militiae, which play a vital role in the centurion’s interrogation, trial, and final sentencing. During his initial examination before the governor or legionary prefect, Marcellus explains that he ‘could not serve under this military oath (sacramento huic), but only for Christ Jesus’.125 In the subsequent trial before the deputy of the prefects, Marcellus confirms in response to Agricolanus’s questioning that he ‘thr[e]w down the symbols of [his] military oath’.126 In the final act of sentencing, Agricolanus pronounces judgment that the centurion had ‘disgraced himself by publicly renouncing his military oath’, while the variant version of the text treats the oath itself as the direct object of the centurion’s defilement: ‘Marcellus has publicly rejected and defiled the oath of the centurion’s rank in which he served.’127 Although such images of pollution and defilement in connection with perjuries may be more familiar from biblical narratives,128 classical Roman authors were capable of using such images in their writings. In Ovid’s Fasti, for example, the goddess Diana instructs a perjured woman to depart from her and her nymphs, so as not to ‘pollute’ the waters in which they are bathing.129 Likewise, the historian Livy reports that the disgraced members of the so-called ‘Bacchanalian sect’, suppressed in 186 BCE, were

122 See e.g. J. Helgeland, ‘Christians and the Roman Army from Marcus Aurelius to Constantine’, in Wolfgang Haase, ed., ANRW 2/23–1 (Berlin: Walter de Gruyter, 1979), 770–83; Shean, Soldiering, 201–4. 123 Acta Marcelli [recensio N], ed. Musurillo, Acts, 254: ‘Passio sancti Marcelli martyris qui est passus apud Legionem prouinciae Galleciae’. 124 Acta Cassiani. 125 Acta Marcelli, 2.1 (recensio M), ed. and tr. Musurillo, Acts, 250–1. 126 See p. 57 n. 110 above. 127 See p. 57 nn. 111–12 above. 128 For examples in Visigothic literature, see ch. 4, ‘Early Medieval Case Study’, p. 179 n. 164. 129 Ovid, Fasti, 2.173–4, ed. E. H. Alton, D. E. W. Wormell, and E. Courtney, P. Ovidi Nasonis Fastorum libri sex (rev. 4th ed., Leipzig: Teubner, 1997), 30: ‘Cui dea, “virgineos, periura Lycaoni, coetus / Desere, nec castas pollue” dixit “aquas”.’ 59

‘contaminated’ by false testimony, forgeries, and various frauds, in addition to sexual and violent offences.130 In The Acts of Marcellus, the pollution of an oath appeared as the primary offence for which a Roman soldier was legally condemned (or credibly believed to have been condemned) in the court of the praetorian prefects. By contrast, Marcellus’s Christian faith recedes into the background; the judicial sections of the narrative focus almost entirely on the violation of the oath, together with the centurion’s insulting words and the deposition of his belt.131

Indeed, The Acts of Marcellus shed light on the formal discipline of perjuries which was possible in the Roman military. The centurion’s case was handled by a combination of military and civilian procedures: Marcellus’s initial questioning appears to have been carried out by a military officer, the prefect of the legion,132 and the centurion’s apprehension by his fellow soldiers is noteworthy.133 At the same time, Marcellus’s trial was conducted in the court of the praetorian prefects, increasingly bureaucratized and staffed by jurists under the reforms of Diocletian and Constantine.134 Despite the centurion’s sentencing before a principally civilian magistrate, the relevance of military rules to his case appears to have been acknowledged. According to Agricolanus’s judgment, ‘What Marcellus has done merits punishment according to military rules (disciplina)’;135 similar language can be found in the variant version.136 Crucially, this mixing of military and civilian procedures is also evinced by subsequent legislation, which occasionally treated perjury of the sacramentum militiae as a public crime explicitly. In the constitution on

130 Livy, Ab urbe condita, 39.18.3, tr. Evan T. Sage, Livy: History of Rome, Books 38–39, LCL 313 (Cambridge, MA: Harvard University Press, 1936), 270–1: ‘qui stupris aut caedibus violati erant, qui falsis testimoniis, signis adulterinis, subiectione testamentorum, fraudibus aliis contaminati’. 131 These actions seem to have aggravated the charge against Marcellus: ‘et insuper apud acta praesidialia uerba furoris plena deposuit’ (see p. 57 n. 111 above). Notably, Marcellus’s identity as a Christian is not challenged; in The Acts of Maximilian, Christian presence in the military is taken for granted: ‘In sacro comitatu dominorum nostrorum Diocletiani et Maximiani … milites Christiani sunt et miltant’ (Acta Maximiliani, 2.9, ed. Musurillo, Acts, 246–7). 132 See p. 58 n. 118 above. 133 See p. 57 n. 107 above: ‘stupentes autem milites … apprehensum eum’. 134 Notably, one of the praetorian prefects in c.298–302 was the jurist Hermogenian, the compiler of The Hermogenian Code: Corcoran, Empire, 87–90. For overview of these developments, see Christopher Kelly, ‘Bureaucracy and Government’, in Noel Lenski, ed., The Cambridge Companion to the Age of Constantine (Cambridge: Cambridge University Press, 2006), 185–7. 135 See p. 57 n. 111 above. 136 Acta Marcelli, 5.1 (recensio N), ed Musurillo, Acts, 258: ‘Agricolanus dixit: Quia ita se habent, facta Marcelli ex disciplina debent uindicari.’ 60

annulments of the western emperors Valentinian and Gratian, which we briefly saw in the introduction to this chapter,137 military perjuries were classed amongst the most serious criminal offences, from which no withdrawals were permitted. First issued in 369, three quarters of a century following Marcellus’s trial and execution, the text reads in its entirety:

Emperors Valentinian, Valens, and Gratian Augustuses to , Praetorian Prefect. The accuser who binds himself by the noose of the law shall know that he may have no recourse to the refuge of annulment after the accused has sustained any injury in consequence of the inscription which he has instituted. … However, before any person may be freed from a criminal trial, he shall be subject to the following condition, namely, that in the case of many crimes, annulment must not be granted even if the parties consent, as in those crimes in which the Imperial Majesty has been violated or the fatherland attacked or betrayed or peculation has been committed or oaths of the imperial service have been abandoned [my emphasis], and all those crimes which are contained in the ancient law. In such cases the judge must press the accuser to prove what he has charged, no less than the accused to clear himself of what he denies. Given on the day before the ides of October at Trier in the year of the consulship of the Emperor Designate Valentinian and of the Most Noble Victor.138

Although some historians have gone so far as to interpret this reference to ‘abandoned oaths’ (sacramenta deserta) as a reference to perjuries in general,139 a more cautious interpretation is that Valentinian and Gratian’s constitution criminalized perjury of the sacramentum militiae

137 See pp. 42–3. 138 CTh 9.37.2 = CJ 9.42.3 (a. 369): ‘IMPPP. VAL(ENTINI)ANVS, VALENS ET GR(ATI)ANVS AAA. AD PROBVM P(RAEFECTVM) P(RAETORI)O. Accusator, qui se laqueo legis adstringit, agnoscat nullum sibi fore ad latebram abolitionis recursum, postquam aliquid iniuriae merito inscribtionis inlatae tolerarit inscribtus. … Prius tamen quam aliquis de quaestione liberetur, sequitur illud, ut plerisque criminibus ne consentientibus quidem partibus praestatur abolitio, ut sunt illa, in quibus aut violata maiestas aut patria obpugnata vel prodita aut peculatus admissus aut sacramenta deserta sunt, omniaque ea, quae iure veteri continentur. In quibus iudex non minus accusatorem ad docenda quae detulit, quam reum ad purganda quae negat debet urguere. DAT. PRID. ID. OCTOB. TREV(IRIS) VAL(ENTINI)ANO N(O)B. P. ET VICTORE V. C. CONSS.’ 139 Bruno Dumézil, ‘Le crime de parjure dans l’Espagne wisigothique du VIIe siècle’, in Marie-France Auzépy and Guillaume Saint-Guillain, eds, Oralité et lien social au moyen âge (Occident, Byzance, Islam): Parole donnée, foi jurée, serment, Monographies 29 (Paris: Collège de France, 2008), 28. 61

specifically. Perhaps importantly, the senior emperor in 369, Valentinian,140 was a military emperor, and he has enjoyed a reputation for both strict military discipline and criminal severity throughout Late Antiquity and the modern era.141 According to Ammianus, Valentinian grew up amongst his soldiers, who reportedly nicknamed the child ‘Funarius’, on account of the skill which he displayed in tug of war.142 Valentinian rose through the military ranks from bodyguard to tribune to comes, eventually commanding armies in Africa and Britain,143 before being acclaimed as emperor by the remnants of Julian the Apostate’s Persian campaign in 364.144 Similar to his father, the emperor Gratian appears to have received an at least partly military formation. Though Ammianus went on to criticize the judicial policies of the father,145 the ex-military officer found much to admire in the son, whom he represented as accepted by Valentinian’s troops with enthusiasm. According to the historian, the young Gratian ‘was recommended by the fiercer gleam of his eyes, the delightful charm of … his whole body, and the noble nature of his heart; these qualities would have completed an emperor fit to be compared with the choicest rulers of the olden time’.146 Given this military background, the inclusion of ‘abandoned oaths’ in a legislative summary of crimes may have reflected Valentinian and Gratian’s personal priorities and military mentality. Depending on the time and place, individual emperors could assert themselves through

140 Ian Hughes, Imperial Brothers: Valentinian, Valens, and the Battle of Adrianople (Barnsley: Pen and Sword Military, 2013), 27. 141 On severitas in general, see Harries, Law and Empire, 99 n. 1, 145, 147–8; for Valentinian specifically, see e.g. Hughes, Imperial Brothers, 89–91, and John Matthews, Western Aristocracies and the Imperial Court, AD 364–425 (Oxford: The Clarendon Press, 1975), 33–4. On Valentinian’s military policies, see Jones, Later Roman Empire, i, 618, 625, 626–7, 631, 638, 647. 142 Ammianus Marcellinus, Res gestae, 30.7.2–3, tr. J. C. Rolfe, Ammianus Marcellinus: History, Books 27–31, LCL 331 (Cambridge, MA: Harvard University Press, 1950), 352: ‘[C]ognaminatus est a pueritia Funarius, ea re quod nondum adultus, venalem circumferens funem, quinque militibus eum rapere studio magno conatis, nequauquam cessit.’ 143 Ammianus, Res gestae, 30.7.3. 144 Ammianus, Res gestae, 26.1–2. 145 See e.g. Ammianus, Res gestae, 27.7. 146 Ammianus, Res gestae, 27.6.15, tr. Rolfe, Ammianus, 42–3: ‘Consurrectum est post haec in laudes maioris principis et novelli, maximeque pueri, quem oculorum flagrantior lux commendabat, vultusque et reliqui corporis iucundissimus nitor, et egregia pectoris indoles: quae imperatorem implesset cum veterum lectisssimis comparandum.’ 62

acts of legislation, and imperial initiative (the so-called spontaneus motus) was one factor in the creation of new law.147

Furthermore, the criminalization of military perjuries had implications outside the military. Like the soldiers themselves, with whom they were frequently compared,148 many of the late empire’s bureaucrats were also considered bound by oath, and these oaths may have furnished the basis for perjury prosecutions similar to Marcellus’s. Regrettably, less seems to be known about the oaths of imperial administration – I am not familiar with any description of the ceremony as detailed as Vegetius’s – yet some imperial constitutions offer hints. By contrast to the surviving versions of many constitutions, which refer to sacramenta indiscriminately,149 a constitution of the emperor Gratian’s son, the western emperor Valentinian II (r. 375–92), referred to the oaths of administrators specifically. According to the text, the western imperial government would ‘not allow any persons to desert their oaths of enlistment on civil office staffs, whether they have been initiated into these services of their own free will or are bound to them by the participation of their ancestors’ (my emphasis).150 Moreover, as with the military, oaths probably regulated numerous aspects of administrators’ lives, and not only their induction into the bureaucracy. For example, a mid-fifth century constitution of the eastern emperor Theodosius II (r. 408–50) and the western emperor Valentinian III (r. 425–55) called for bureaucrats to be promoted partly on the basis of oath taking. Decrying the practice of an ‘earlier time’, when administrators had aspired to higher office through ‘ambition’, the imperial government required hardworking bureaucrats to obtain the sworn testimony of fifteen of their fellow administrators, before they could leave the offices in

147 For the post-classical period, see e.g. Harries, Law and Empire, 36, 47, and John F. Matthews, Laying Down the Law: A Study of the Theodosian Code (New Haven: Yale University Press, 2000), 160–2, 171. For the classical period, cf. Tony Honoré, Emperors and Lawyers (2nd ed., Oxford: The Clarendon Press, 1994), 135. On the military mentality of other imperial administrations, e.g. that of the eastern emperor Marcian (r. 450–7), see Jones, Later Roman Empire, i, 614–15, 643, and cf. Corcoran, Empire, 97–101, on soldiers’ petitions. 148 Kelly, Ruling, 20–1. 149 See e.g. CTh 6.13.1 (a. 413), 6.35.14 (a. 423), 7.2.2 (a. 385), 7.22.3 (a. 331), 8.1.17 (a. 433), 8.4.8 (a. 364), 8.4.21 (a. 410), 8.4.26 (a. 415), 8.7.16.1 (a. 385), 9.37.2 (a. 369), 9.38.11 (a. 410, 413), 12.1.105 (a. 384). 150 CTh 8.7.16.1 (a. 385): ‘Adeo autem unumquemque ea, quibus vel sponte initiatus est vel suorum retinetur consortio maiorum, non sinimus civilium officiorum sacramenta defugere.’ 63

which they were currently enrolled.151 Again, as with the military, these oaths would have affected an extremely important part of the imperial population. Though much smaller than the army, the late imperial bureaucracy is estimated to have numbered some 30,000 or 35,000 people, likewise bearing outsized political, social, and economic importance.152

With respect to administrative perjuries, successive imperial governments seem to have adopted a novel tactic. Whereas Valentinian and Gratian’s administration seemed to treat military perjury as a crime in its own right, subsuming sacramenta deserta within ‘all those crimes which are contained in the ancient law’,153 late imperial legislation assimilated cases of administrative perjury to one of the classical criminal statutes: the lex Iulia repetundarum on public extortion (59 BCE).154 Originally, the laws on public extortion were directed at imperial authorities, particularly provincial governors, operating in provinces where the protections of Roman urban law were unavailable. Perhaps most famously, the governor of prosecuted in Cicero’s orations Against Verres, Gaius Verres, was tried under the statute on extortion.155 Nevertheless, by the fifth century CE, imperial governments were willing to employ the lex Iulia repetundarum against all manner of official wrongdoing, both in the provinces and closer to home, at the imperial court. A constitution of the eastern emperor Theodosius II, dated to 439, laid out the following procedures for appointing governors:

Emperors Theodosius and Valentinian Augustuses to Florentius, praetorian prefect. We sanction that men of this kind, who are accustomed to be promoted to the insignia of honour not by ambition or for price, but by the testimony of an approved life and of your amplitude, should accede to the rule of provinces. Certainly, therefore, let those to whom these honours have been committed through

151 CJ 12.19.7 (a. 443, 444): ‘[V]t nemini penitus liceat, cum sit posterior tempore, in locum praecedentis ambire, nisi forte adeo qui tempore vincitur laborum comparatione superat, ut quindecim primatum eiusdem scrinii testimonio cum sacramenti religione subnixus praecedentibus dignior iudicetur.’ 152 For these numbers see Kelly, Ruling, 111, 115. 153 See p. 61 n. 138 above. 154 Crawford, Roman Statutes, ii, no 55. For discussion of this accusation in still more ancient legislative iterations, see J. S. Richardson, ‘The Purpose of the Lex Calpurnia de repetundis’, The Journal of Roman Studies 77 (1987): 1– 12. 155 Cicero, In Verrem, 1.or.41, 1.or.51, 2.lib.2.15, 2.lib.2.142, 2.lib.3.195, 2.lib.4.17, 2.lib.4.56. 64

our election or through that of your authority, publish amongst their deeds on oath that they neither gave anything for the acquisition of their administrations nor ever shall give anything in future, either through themselves or through the interposition of another person, in fraud of the law and of their oath. … And though we believe that no one is so forgetful of divine fear in counting an oath as nothing, that he would place any profit ahead of his own salvation, nevertheless, in order that the necessity of danger may also be subjoined to the fear of salvation, if anyone should dare to neglect the offered oaths, then we concede the right of accusation, as of a public charge [my emphasis], to all, not only against the one receiving, but also against the one giving [the bribe], with the one who should be convicted being struck by a fourfould penalty in every way. Given on the sixth of the kalends of December at Constantinople, with Theodosius Augustus for the seventeenth time and Festus as consuls.156

Like Valentinian and Gratian’s constitution on military perjuries, this constitution represents a transitional text in the evolving justiciability of perjury. Although the giving and receiving of a bribe occasioned the statute, and both the giver and receiver of the bribe were made subject to its provisions,157 Theodosius’s government explained its reasoning primarily with reference to perjury. Before newly appointed governors could assume the ‘rule of provinces’, those who had been selected were obliged to swear, stating that they had not ‘given anything for the acquisition of their administrations’, and promising that they would not ‘give anything in future’.158 Moreover, the constitution imagines that the ‘fear of salvation’ might not be sufficient to deter potential perjurors. Instead, ‘so that the necessity of danger may also be subjoined to the fear of salvation’ (!), certain penalties were added – ‘should anyone should dare to neglect the

156 CJ 9.27.6 (a. 439): ‘Impp. Theodosius et Valentinianus AA. Florentio pp. Sancimus eiusmodi viros ad provincias regendas accedere, qui honoris insignia non ambitione vel pretio, sed probatae vitae et amplitudinis tuae solent testimonio promoveri, ita sane ut, quibus hi honores per sedis tuae vel nostrum fuerint electionem commissi, iurati inter gesta depromant se pro administrationibus sortiendis neque dedisse quippiam neque daturos umquam postmodum fore, sive per se sive per interpositam in fraudem legis sacramentique personam. … Et licet neminem divini timoris contemnendo iureiurando arbitramur immemorem, ut saluti propriae ullum commodum anteponat, tamen, ut ad salutis timorem et necessitas periculi subiungatur, tunc si quis ausus fuerit praebita sacramenta neglegere, non modo adversus accipientem, sed etiam adversus dantem cunctis tamquam crimen publicum concedimus facultatem, quadrupli poena eo qui convictus fuerit modis omnibus feriendo. D. VI k. Dec. Constantinopoli Theodosio A. XVII et Festo conss.’ 157 ‘[N]on modo adversus accipientem, sed etiam adversus dantem’ (see p. 65 n. 156 above). 158 See p. 65 n. 156 above: ‘iurati … depromant se pro administrationibus sortiendis neque dedisse quippiam neque daturos umquam postmodum fore’. 65

offered oaths’.159 At least at the level of rhetoric, this penalization for the neglect of oaths represents a significant shift from the classical perspectives on perjury with which we began this dissertation. For Tacitus, quoting the emperor Tiberius (r. 14–37 CE), ‘[T]he gods must look to their own wrongs’ in perjury cases;160 for the government of Severus Alexander, ‘The bond of an oath despised has God for a sufficient avenger’.161 Here, however, oaths held in contempt (‘… though we believe that no one is so forgetful of divine fear in counting an oath as nothing …’) furnished the basis for a legal action, which could be brought by anyone.162 Importantly, Theodosius’s government clarified that the action was criminal,163 and that the (financial) penalties would be severe.164 Lower-ranking administrators might not be so lucky: according to Ammianus, an unnamed apparitor on Julian the Apostate’s campaign was subjected to the death penalty, apparently for violating a solemn promise to provision the troops by a certain date.165 In the case of Theodosius’ constitution, the language of the statute seems to have arisen out of practice. The administrators being promoted are ‘accustomed’ to being so on the basis of the praetorian prefect’s ‘testimony’; governors are chosen either ‘through our election or through that of your authority (lit., seat)’.166

Thus for both soldiers and administrators, the classicist consensus that perjury could not be penalized by ‘mortal justice’167 did not apply – at least in Late Antiquity. The western

159 See p. 65 n. 156 above: ‘ut ad salutis timorem et necessitas periculi subiungatur, tunc si quis ausus fuerit praebita sacramenta neglegere’. 160 Tacitus, Annales, 1.73.4, tr. John Jackson, Tacitus: Histories, Books 4–5; Annals, Books 1–3, LCL 249 (Cambridge, MA: Harvard University Press, 1931), 368–9: ‘deorum iniurias dis curae.’ 161 CJ 4.1.2 (a. 223): ‘Iurisiurandi contempta religio satis deum ultorem habet.’ See ch. 1, ‘Introduction’, pp. 15–17. 162 See p. 65 n. 156 above: ‘cunctis’. 163 See p. 65 n. 156 above: ‘tamquam crimen publicum’. 164 See p. 65 n. 156 above: ‘quadrupli poena eo qui convictus fuerit modis omnibus feriendo’. 165 Ammianus, Res gestae, 25.3.6, tr. Rolfe, Ammianus, 336: ‘Pari sorte hic quoque omen inlaetabile visum est, apparitoris cuiusdam cadaver extentum, carnificis manu deleti, quem praefectus Salutius praesens, ea re supplicio capitali damnarat, quod intra praestitutum diem alimentorum augmentum exhibere pollicitus, casu impediente frustratus est.’ 166 See p. 65 n. 156 above: ‘qui … amplitudinis tuae solent testimonio promoveri … quibus hi honores per sedis tuae vel nostrum fuerint electionem commissi’; and cf. Theodosius’ constitution on administrative promotions through oath taking (p. 63 n. 151). Perhaps the praetorian prefect and addressee of the 439 statute, Florentius, was the real formulator of this policy. 167 Scheid, ‘Oral Tradition’, 27. 66

government of Valentinian and Gratian classified military perjuries as a crime, and the eastern government of Theodosius II considered that ‘the necessity of danger may also be subjoined to the fear of salvation’, assimilating at least some administrative perjuries to the classical crime of public extortion. At the same time, North African Christian martyr acts like The Acts of Marcellus show that such policies could be carried out in practice, and were being carried out even before the surviving legislation concerning them was issued.168 As The Acts of Marcellus and Ammianus’s account of the unnamed apparitor likewise illustrate, justice in the military and even administrative worlds could be unexpectedly swift. Marcellus was arrested quickly, and the investigation into his behaviour was concluded within several months.169 The apparitor executed on the Persian campaign appears to have been rapidly condemned: according to Ammianus, the promised supplies arrived on just the following day.170 If such sources are reliable, then soldiers and administrators had an interest in policing each other’s behaviour, making use of oaths and enforcing their oaths as they did so, and this interest was occasionally reflected in legislation and judicial decrees. Far from invoking a rhetoric of fas and nefas, constitutions like Theodosius’ and judicial sentences like that against Marcellus regarded justice for the perjured as imminent, treating perjuries (in the case of Marcellus) as defiling and polluting,171 to be cut off by force of arms.172 At least implicitly, all of these cases also concerned the emperor, who was the beneficiary of Vegetius’s oath text173 and who was probably the beneficiary of administrative sacramenta as well. As we shall now see, this connection to the emperor proved crucial, for soldiers and administrators were not the only ones who swore oaths to the emperor or using the emperor’s name.

168 On the expectations of The Acts’ western imperial audiences, see p. 59 above. 169 The date of his arrest was 21 July; the date of his trial and execution was 30 October (Acta Marcelli, 2.1–3.1). 170 Ammianus, Res gestae, 25.3.6, tr. Rolfe, Ammianus, 336: ‘Sed miserando homine trucidato, postridie advenit, ut ille promiserat.’ 171 See p. 57 nn. 111–12 above: ‘abiecto publice sacramento pollui se’; ‘ablatum publice sacramentum polluit’. 172 See p. 57 n. 111 above: ‘gladio animaduerti’. 173 See p. 53 n. 81 above: ‘Iurant autem milites omnia se strenue facturos, quae praeceperit imperator.’ 67

5 Perjury on the Emperor: From the Severan Statute to The Opinions of Paul

In Vegetius’s account of the sacramentum militiae, the western imperial administrator observed that soldiers swore not only by God, but also ‘by the Majesty of the Emperor, which second to God is loved and worshipped by the human race’. As Vegetius went on to explain, ‘For since the Emperor has received the name of the ‘August’, faithful devotion should be given, unceasing homage paid to him as if to a present and corporeal deity. For it is God whom a private citizen or soldier serves, when he faithfully loves him who reigns by God’s authority.’174 Indeed, one underappreciated aspect of this cult of the emperors in Late Antiquity is that private citizens as well soldiers and administrators invoked the person of the emperor in their oaths, many of which have come down to us today. Of the oaths appearing in the standard published sources on pre- Justinianic Roman law, more than half call the emperors to witness, both living and deceased.175 Amongst these oath formulas, the most common prove to be invocations of the emperor’s ‘spirit’ or ‘fortune’ (genius, τύχη) and of his ‘victory’ (victoria, νίκη) in battle.176 Both private documents and juristic texts likewise attest the swearing of oaths on the emperor’s ‘safety’ or ‘salvation’ (salus, διαμονή),177 a formula which may have originated with the cult of the goddess Salus Augusta.178 In late antique Ravenna, where private citizens and officials registered their acts in the municipal archive, legal actors and witnesses also employed the formulation recommended by Vegetius, swearing by the ‘majesty’ (maiestas) of the emperor.179 Similar to the concept of the

174 See p. 53 n. 81 above: ‘Iurant autem per Deum et per Christum et per sanctum Spiritum et per maiestatem imperatoris. … Nam imperator cum Augusti nomen accepit, tamquam praesenti et corporali Deo fidelis est et praestanda deuotio et inpendendus peruigil famulatus. Deo enim uel priuatus uel militans seruit, cum fideliter eum diligit qui Deo regnat auctore.’ 175 FIRA(1) 1, nos 101–2; FIRA(2), 1, no 76; FIRA(2), 3, nos 67, 115, 178–9, 182, 184, 188. 176 FIRA(2) 1, no 76; FIRA(2), 3, nos 67, 115, 179, 182, 184, 188. 177 FIRA(2) 3, nos 67, 179; cf. p. 77 n. 234 below. 178 According to a pair of surviving inscriptions, Salus Augusta enjoyed an active cult with both priestesses and games dedicated in her honour: Inscriptiones Latinae Selectae, ed. Hermann Dessau, i (Berlin: Weidmann, 1892), nos 1012, 6218. 179 Jan-Olof Tjäder, ed., Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700, ii (Stockholm: Svenska Institutet i Rom, 1982), no 59. 68

emperor’s salus, the concept of the emperor’s maiestas had ancient precedents, and could be worshipped as a divinity before the empire’s conversion to Christianity.180

Yet just as scholarly definitions of the oath remain contested,181 so too do the religious implications of these oaths on the emperor’s safety, majesty, victory, or spirit. For imperial inhabitants who approached these oaths with reverence,182 at least two possibilities have been distinguished. On the one hand, these oaths could have functioned in a traditional way, as an invitation to the (pre-Christian) divine emperor (whether living or deceased) to avenge any perjury directly. A good example is the allegiance oath sworn by the soldiers of Alvega, Portugal, to the emperor Caligula in 37 CE.183 According to the text, the swearers prayed, in the event of perjury, that Jupiter Optimus Maximus and divus Augustus would ‘render [them] and [their] children … outcast[s] from the security of [their] country and from every fortune’ – a noticeably this-worldly penalty, which nonetheless was supposed to function in an other-worldly way.184 On the other hand, and from the emperors’ point of view more alarmingly, oaths sworn on the emperor could be interpreted not as a divine invitation to take vengeance on the perjuror, but as a divine invitation to inflict damage on something or someone which the perjuror valued – in this case, the emperor’s safety, majesty, victory, or spirit, invoked by the terms of the oath.185 As we saw in the introduction to this dissertation, oaths have been closely related to curses,186 and curses could operate in a variety of ways. While the oath has usually been understood as a species of self-curse,187 some ancient observers considered that oaths operated by placing at risk the outside witness whom the terms of an oath invoked. According to Pliny the Younger, a certain Marcus Aquilius Regulus

180 Ovid, Fasti, 5.25–48. For discussion of these formulas, see Rhona Beare, ‘The Meaning of the Oath by the Safety of the Roman Emperor’, The American Journal of Philology 99/1 (1978): 106–10, and Michael McCormick, Eternal Victory: Triumphal Rulership in Late Antiquity, Byzantium, and the Early Medieval West (Cambridge: Cambridge University Press, 1986), 235–7. 181 See ch. 1, ‘Introduction’, pp. 34–6. 182 Cf. Tertullian, Apologeticum, 16.8, at p. 54 n. 85 above, with reference to soldiers. 183 See p. 51 n. 71 above. 184 FIRA(1) 1, no 101, pp. 277–8: ‘[S]i sciens fallo fefellerove, tum me liberosq(ue) meos Iuppiter optimus maximus ac divus Augustus ceteriq(ue) omnes di immortales expertem patria incolumitate fortunisque omnibus faxint.’ 185 Cf. Vegetius, Epitoma, 2.5, ed. Önnerfors, Vegetius, 61: ‘cum fideliter eum diligit’. 186 See pp. 38, 51 above. 187 Heinrich Brunner, Deutsche Rechtsgeschicte, i (repr., Berlin: Duncker and Humblot, 1961), 257. 69

notoriously placed his own son at risk, falsely swearing in the son’s name in order to persuade a dying woman to have himself inserted in the woman’s will.188 As the classicist Rhona Beare has argued, perjury of an oath on the emperor could thus ‘endanger the emperor’, and ‘[i]t remains surprising that the emperor should [have] permit[ted] such an oath to be used’ at all.189

Nevertheless, as the documentary and legal record demonstrates, multiple generations of Romans did swear in their emperors’ names, and the possibility that some Romans believed that these oaths placed the emperors at risk must be taken seriously. Remarkably, oath violations were repeatedly discussed in the context of treason, a concept which encompassed injuries done to the emperor from a very early date.190 In later juristic opinions, imperial insults were to be prosecuted under the law on treason; according to Venuleius Saturninus, these included destroying a statue of the emperor which was consecrated, while Marcian implied that assaulting the statue on purpose could be handled in the same way.191 As we saw in the introduction to this dissertation, an early test case for prosecuting perjury under the lex Iulia maiestatis seems to have been the trial of the Roman knight (eques) Rubrius, briefly narrated in The Annals of Tacitus. Although the emperor Tiberius intervened on Rubrius’s behalf, issuing a letter or ‘proto-rescript’ which resulted in Rubrius’s acquittal,192 Tacitus’s narrative also makes clear that Rubrius might well have been convicted.193 Two centuries later, the problem of perjury in the emperor’s name resurfaced, when another petitioner, the otherwise unidentified ‘Felix’, seems to have sought relief from the government of Severus Alexander. Like Tacitus’s narrative, Alexander’s reply preserved in The

188 Pliny the Younger, Epistulae, 2.20.5–6, tr. Betty Radice, Pliny the Younger: Letters, Books 1–7, LCL 55 (Cambridge, MA: Harvard University Press, 1969), 150: ‘Illa ut in periculo credula poscit codicillos, legatum Regulo scribit. Mox ingravescit, clamat moriens hominem nequam perfidum ac plus etiam quam periurum, qui sibi per salutem filii peierasset. Facit hoc Regulus non minus scelerate quam frequenter, quod iram deorum, quos ipse cottidie fallit, in caput infelicis pueri detestatur.’ 189 Beare, ‘Meaning’, 106, 110. 190 Richard A. Bauman, ‘Sua Domusque Suae Maiestas’, in idem, The Crimen Maiestatis in the Roman Republic and Augustan Principate (Johannesburg: Witwatersrand University Press, 1967), 198–245; Floyd Seyward Lear, Treason in Roman and Germanic Law: Collected Papers (Austin: The University of Texas Press, 1965), 19–20, 28–30. 191 D 48.4.5–6: ‘Nec qui lapide iactato incerto fortuito statuam attigeret, crimen maiestatis commisit. … Qui statuas aut imagines imperatoris iam consecratas conflauerint aliudue simile admiserint, lege Iulia maiestatis tenentur.’ 192 Cf. Honoré, Emperors, 8–9. 193 For discussion, see ch. 1, ‘Introduction’, pp. 19–20. 70

Justinianic Code illustrates that perjuries were being discussed in the context of treason.194 The text reads once again:

Emperor Alexander Augustus to Felix. The bond of an oath despised has God for a sufficient avenger. It is not pleasing, moreover, that corporal punishment or the charge of treason (maiestatis crimen) should be inflicted in accordance with the decisions of my divine forebears, even if one be perjured (by means of a certain passion) on the veneration of the prince. Posted on the sixth of the Kalends of April, with Maximus for the second time and Aelianus as consuls.195

Now that the justiciability of perjury has been established in the case of some late antique soldiers and administrators, it is worth re-examining the Severan statute in a different light. Far from expressing a uniform view of perjuries, as some historians have maintained,196 Severus Alexander’s rescript actually preserves surprising evidence for a divergence of opinion with respect to perjuries. According to the rescript, cases similar to Felix’s had previously been addressed through the ‘decisions of my divine forebears’ (constituta divorum parentum meorum).197 At a minimum, this phrase illustrates that oath violations were perceived as a recurrent topic of third-century petitions, and that many or most of the imperial responses to these petitions may not have survived.198 Yet the particular phrasing of Severus Alexander’s decision can be interpreted in different ways. While the policy prohibiting accusations of treason and corporal punishment is clear enough, the meaning of the allusion to the ‘decisions of my divine forebears’ is not. One interpretation, seemingly favoured by The Justinianic Code’s early twentieth-century translator, S. P. Scott, held that this language qualified the emperor’s decision as a whole,

194 See ch. 1, ‘Introduction’, pp. 15–17. 195 CJ 4.1.2 (a. 223): ‘Imp. Alexander A. Felici. Iurisiurandi contempta religio satis deum ultorem habet. Periculum autem corporis vel maiestatis crimen secundum constituta divorum parentum meorum, etsi per principis venerationem quodam calore fuerit periuratum, inferri non placet. PP. VI k. April. Maximo II et Aeliano conss.’ 196 Andrew R. Dyck, A Commentary on Cicero, De legibus (Ann Arbor: The University of Michigan Press, 2004), 317. 197 See p. 71 n. 195 above. 198 Honoré, Emperors, 48. 71

reaffirming the precedents set by previous imperial governments: ‘In accordance with the decisions of my divine forebears, it is not pleasing that corporal punishment or the charge of treason should be inflicted.’199 Nevertheless, this interpretation is almost certainly wrong. The phrase secundum constituta divorum parentum meorum does not seem to qualify Severus Alexander’s decision, but the practice of corporal punishment and the use of treason charges themselves: ‘It is not pleasing that corporal punishment or the charge of treason should be inflicted in accordance with the decisions of my divine forebears.’ In other words, previous imperial governments had issued rulings which permitted those types of procedure to be used, and Severus Alexander’s government was now reversing course.200 A crucial piece of evidence for this hypothesis turns out to be a quotation of the classical jurist Ulpian preserved in Justinian’s Digest, where the jurist makes reference to a decision by Alexander’s immediate predecessors, the emperors Septimius and Caracalla. Probably serving as the emperors’ magister libellorum, or chief legislative drafter, in 203–9,201 Ulpian reported:

If in a money matter someone swears on the spirit of the emperor that a debt is not due from him or is due to him and proves forsworn or swears he will pay within a certain time and does not pay, it is held by rescript of our emperor and his father that he must be sent for flogging (fustibus eum castigandum) under a motto, ‘Take not oaths in vain.’202

Taken side by side, Ulpian’s opinion and Severus Alexander’s rescript demonstrate that petitioners raised the problem of perjury repeatedly and that imperial policies might differ. Indeed,

199 Cf. S. P. Scott, tr., The Civil Law: Including the Twelve Tables, The Institutes of Gaius, The Rules of Ulpian, The Opinions of Paulus, The Enactments of Justinian, and The Constitutions of Leo, xiii (2nd ed., New York: AMS Press, 1973), 3. 200 According to Fara Nasti, restoring classical principle: Nasti, L’attività normativa di Severo Alessandro (Naples: Satura, 2006), 126ff. 201 Honoré, Emperors, 81–6, 190. 202 D 12.2.13.6: ‘Si quis iuraverit in re pecuniaria per genium principis dare se non oportere et peieraverit vel dari sibi oportere, vel intra certum tempus iuraverit se soluturum nec solvit: imperator noster cum patre rescripsit fustibus eum castigandum dimittere et ita ei superdici: προπετῶς μὴ ὄμνυε.’ 72

as Jill Harries has emphasized, one of the reasons for petitioning a government was to find out what the current law was, and if imperial policies were consistent.203 For Caroline Humfress, magistrates often ‘stretched the limits of [conclusions] laid down by existing legislation … provok[ing] new imperial rulings … driven by concrete cases’.204 In the case attested by Ulpian, the suitability of corporal punishment for a debtor who had committed perjury on the ‘spirit’ of the emperor seems to have been disputed: ‘[I]t is held by rescript of our emperor and his father that [the perjuror] must be sent for a flogging (castigandum).’205 By contrast, Severus Alexander’s government disapproved of this method of enforcement: ‘[I]t is not pleasing that corporal punishment … should be inflicted.’206 Notably, although a physical beating might fall far short of a treason trial,207 the infliction of corporal punishment could be perceived as having similarly degrading effects. Within Justinian’s Digest, under the criminal title ‘De poenis’, ‘certain punishments that may take away life’, ‘inflict slavery’, ‘deprive of citizenship’, or ‘include either exile or corporal punishment’ were all grouped together.208 Individual petitioners do not seem to have disagreed: typically reserved for slaves and domestics,209 corporal punishment provided the occasion for more than one imperial ruling. In c.180–3, a group of free but poor labourers on a North African estate appeared to worry that physical beatings had taken away their citizenship, complaining to the emperor: ‘[The conductor] ordered some of us to be apprehended and harassed, others to be chained, and not a few – Roman citizens indeed – to be destroyed by means of switches and rods.’210 Presumably, the alleged perjurors of Severus Alexander’s rescript and Ulpian’s

203 Harries, Law and Empire, 84. 204 Humfress, Orthodoxy, 61. 205 See p. 72 n. 202 above. 206 See p. 71 n. 195 above: ‘Periculum autem corporis … inferri non placet.’ 207 Depending on the severity of the beating: Richard Saller, ‘Corporal Punishment, Authority, and Obedience in the Roman Household’, in Beryl Rawson, ed., Marriage, Divorce, and Children in (Oxford: Oxford University Press, 1996), 151. 208 D 48.19.6.2 (also quoting Ulpian): ‘Nunc genera poenarum nobis enumeranda sunt, quibus praesides adficere quemque possint. Et sunt poenae, quae aut uitam adimant aut seruitutum iniungant aut ciuitatem auferant aut exilium aut coercitionem corporis contineant.’ 209 Saller, ‘Corporal Punishment’, passim. 210 FIRA(2) 1, no. 103, p. 496: ‘ut missis militib(us) … aliǀ[os nos]trum adprehendi et uexari, aliǀ[os uinc]iri, nonnullos, ciues etiam Roǀ[manos], uirgis et fustibus effligi’. 73

opinion wished to escape the appearance or the reality of degrading, servile, criminal treatment. In Severus Alexander’s case, the petitioner seems to have won; in Ulpian’s, he seems to have lost.

One further difference between the evidence of these two cases is rhetorical. Whereas (according to Ulpian) the emperors Septimius and Caracalla presented themselves with relative severity, ordering the perjuror to be flogged ‘under a motto, “Take not oaths in vain”’,211 the government of Severus Alexander presented the young emperor as acting with relative clemency. At the time of the Severan statute’s issue, in March 223, the approximately sixteen-year-old emperor had ruled for almost exactly one year.212 Moreover, the position of chief legislative drafter or magister libellorum was held by an anonymous jurist whom Tony Honoré has identified as ‘secretary no 7’, serving from October 222 to October 223.213 As Honoré has found, the rescripts issued during this early period of Severus Alexander’s reign are characterized by a tendency toward mildness, especially in matters pertaining to treason. Less than a month after the rescript on perjury was issued, secretary no 7 drafted another rescript in which the emperor announced that ‘even now … accusations of treason are ceasing in my time’.214 More mundane decisions were similarly characterized as generous: legal heirs retained their right to one fourth of a legacy, ‘even in legacies given to the emperor’.215 While such rulings may have reflected some consistent policy preferences,216 they also served as moral arguments, which attempted to persuade their audience. In Ulpian’s case, the jurist made use of ‘a motto, “Take not oaths in vain”’, but on other occasions he quoted Cicero.217 As we have seen in the case of military and administrative perjuries, moral arguments and rhetoric were subject to variation. For the magistrate who condemned Marcellus, the soldier had ‘publicly rejected and defiled the oath of the centurion’s rank’.218 For the

211 See p. 72 n. 202 above: ‘ita ei superdici: προπετῶς μὴ ὄμνυε.’ 212 Honoré, Emperors, 98–101, 190. 213 Cassius Dio, Historia Romana, 80.19–21. 214 CJ 9.8.1 (a. 223): ‘Etiam … maiestatis crimina cessant meo saeculo.’ 215 CJ 6.50.4 (a. 222): ‘[e]t in legatis principi datis’. 216 Notably, the language has persuaded Fara Nasti: ‘Morality, legality, and moderation appear to have been … the concepts which inspired the government of Severus Alexander’ (Nasti, L’attività, 22). 217 D 42.4.7.4. For discussion see Tony Honoré, Ulpian: Pioneer of Human Rights (2nd ed., Oxford: Oxford University Press, 2002), 76–84, and Dieter Nörr, ‘Cicero-Zitate bei den klassischen Juristen’, Ciceroniana NS 3 (1978): 115–36. 218 See p. 57 n. 112 above: ‘centurionatum in quo militabat ablatum publice sacramentum polluit’. 74

government of Theodosius II, ‘the necessity of danger [might] also be subjoined to the fear of salvation, if anyone should dare to neglect the offered oaths’.219 The legal rhetoric around perjuries could therefore vary, from period to period and even from reign to reign, as all of these cases indicate.220

By the end of the classical period, shortly after the reign of Severus Alexander,221 the evidence for the unpunishability of perjuries is much less persuasive than has frequently been admitted. Perjury complaints had arisen in the context of treason on multiple occasions, and at least two governments – that of Septimius and Caracalla and that of Severus Alexander – had disagreed about the suitability of corporal punishments. Nevertheless, the most important piece of evidence that ordinary perjuries could be treated criminally in Roman law derives from a post- classical text, The Opinions of Paul, which was believed to have been composed by another classical jurist, Julius Paulus, but was most likely composed in North Africa at the very end of the third century.222 Unlike the Severan statute, The Opinions of Paul were not legislative, and so did not enjoy the positive ‘force of a statute’223 in the way that the rescripts did. On the other hand, a source like The Opinions of Paul possesses its own distinct advantages, of which the most significant may be the comparatively practical nature of the text. Whereas imperial legislation remained essentially normative, describing how society ought to be governed from the perspective of the imperial centre,224 The Opinions of Paul are arguably closer to the administration of justice on the ground. According to the most important recent student of this source, Detlef Liebs, the provincial, North African context of the manual is discernible in many of its observations.225 Rural arsonists, who threatened the all-important North African grain supply, ‘are afflicted with the

219 See p. 65 n. 156 above: ‘ut ad salutis timorem et necessitas periculi subiungatur, tunc si quis ausus fuerit praebita sacramenta neglegere’. 220 According to some historians, the exceptional rhetoric of clemency typical of ‘secretary no 7’ was unusual: see Corcoran, Empire, 51, and contrast Valentinian on severitas, at p. 62 n. 141 above. 221 See p. 40 n. 3 above. 222 Detlef Liebs, Römische Jurisprudenz in Afrika: Mit Studien zu den pseudopaulinischen Sentenzen (Berlin: Akademie, 1993). 223 D 1.4.1.pr.: ‘legis uigorem’. 224 See ch. 1, ‘Introduction’, pp. 16–17, 20–1. 225 Liebs, Römische Jurisprudenz, 32–3, 38–43. 75

supreme penalty’;226 human sacrifice, a Roman stereotype concerning North African religion, is included in the section on homicide.227 The style of the text is mostly plain and unadorned, with many observations having been made in the indicative mood and present tense, and the text seems to have been popular with practising magistrates and lawyers. According to James Rives, The Opinions of Paul were ‘by far [one of] the most convenient sources of [legal] information’ in the post-classical period,228 and may constitute a better guide to fourth- and fifth-century legal practice than the imperial codifications do.

Crucially for us, The Opinions of Paul contains an opinion on perjury. Preserved in a single, fragmentary manuscript, the so-called Leiden Codex of The Opinions of Paul,229 this sententia also addresses perjury in the context of treason, yet arrives at a different conclusion from that of the Severan statute. According to a palaeographical study by Robert Marichal, the Leiden Codex was probably composed some time during the first part of the fourth century, and, intriguingly, in the eastern part of the empire – not in the text’s native North Africa.230 As Marichal explains, certainty in these matters is impossible, since original Latin documents surviving from the third through fifth centuries are usually too few to be dated and localized with certainty.231 Nevertheless, Marichal has classified the Leiden Codex’s script as an ‘archaic uncial’, ‘archaic half-uncial’, or ‘mixed uncial’,232 most comparable with another surviving manuscript, an eastern bilingual Greek and Latin edition of Vergil’s Aeneid.233 Hence this opinion on perjury appears to have enjoyed a relatively wide reception, relatively early in The Opinions of Paul’s career, and it deals with perjury both summarily and surprisingly:

226 PS 5.3.6: ‘Incendiarii, qui consulto incendium inferunt, summo supplicio adficiuntur.’ For discussion see Liebs, Römische Jurisprudenz, 40–1. 227 PS 5.23.16. Cf. James B. Rives, ‘Tertullian on Child Sacrifice’, Museum Helveticum 51/1 (1994): 54–63. 228 Rives, ‘Magic’, 330. 229 Leiden, Universiteitsbibliotheek, BPL 2589. 230 R. Marichal, ‘L’écriture du Paul de Leyde’, in G. G. Archi et al., eds, Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1956), 23–57. 231 Marichal, ‘L’écriture’, 29–30. 232 Marichal, ‘L’écriture’, 25. 233 P. Cairo 85.644 A, B + P. Milan I + P. Ryl. III, 478. For discussion see Marichal, ‘L’écriture’, 34–6, 57. 76

He who should commit perjury on the salvation of the prince cannot be condemned under this law [i.e., the lex Iulia maiestatis], for it is convenient that we set this matter down to a mere unbridled slip of the tongue. Nevertheless, having been judged with rods, he is either banished or temporarily suspended from the town council (my emphasis).234

The significance of this sententia is apparent. Corporal punishments, permitted by the government of Septimius and Caracalla but prohibited by that of Severus Alexander, are here restored. Moreover, the provincial jurist has observed the addition of another penalty: banishment, specified in the text as ‘relegation’.235 By contrast to corporal punishment, whose meaning for the physically disciplined individual might be ambiguous,236 banishment was a clearly criminal penalty, standard for honestior-rank citizens and existing in various degrees.237 In the most severe degree, classified as deportation, classical jurists had understood that the penalty stripped the convict of Roman citizenship and confined him or her to a particular place, usually an island.238 In the less severe degree, classified as relegation, the penalty could entail prohibitions on various locations and may or may not have been permanent.239 Notably, this distinction may not have been implied by our particular sententia: in Late Antiquity, ‘relegation’ could be synonymous with deportation, as when the former imperial chamberlain was expropriated of all his goods, subjected to a damnatio memoriae, and relegated to Cyprus in 399.240 Moreover, for the author of

234 Martin David and H. L. W. Nelson, ‘Apographum, Text und philologischer Kommentar’, in G. G. Archi et al., eds, Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1956), 7: ‘Hac lege damnari non potest, qui per salutem principis periurauerit: hoc enim nos lubrico linguae inpoenito dare tantum (?) conuenit; fustibus tamen animaduersus aut relegatur aut curia ad tempus ǁ submouetur.’ 235 David and Nelson, ‘Apographum’, 7: ‘relegatur’. 236 See p. 73 nn. 208–10 above. 237 For discussion see Daniel A. Washburn, Banishment in the Later Roman Empire, 284–476 CE (London and New York: Routledge, 2013). PS 5.19.1, 5.19a.1, 5.20.2–6, 5.21.2, 5.22.2–5, 5.23.4–19, 5.25.1–12, 5.26.1–3, 5.30b.1. 238 D 48.19.2.1, 48.22 passim. 239 D 48.19.4, 48.22 passim. 240 CTh 9.40.17 (a. 399): ‘Omnes res Eutropi … aerarii nostri calculis adiunximus, erepto splendore eius et consulatu a taetra inluvie et a commemoratione nomine eius et caenosis sordibus vindicato. … Adhibitis itaque fidis custodibus 77

The Opinions of Paul, relegation was likewise observed as a penalty for such classically established crimes as calumny, homicide, forgery, brigandage, public extortion, and kidnapping.241 The same penalty was indicated for more recently criminalized behaviours, notably magic.242 To be sure, the text of the Leiden Codex still engaged with classical legal principles, noting that perjurors were not to be prosecuted under the law on treason specifically and that their oaths could be ‘set down to a mere unbridled slip of the tongue’ – apparently an allusion to the opinion of yet another third-century jurist, Herennius Modestinus.243 ‘Nevertheless’, as the text itself continued,244 criminal procedures for perjury on the emperor were available.

As with the opinion of Ulpian and the rescript of Severus Alexander, the figure of the emperor remained central: ‘He who should commit perjury on the salvation of the prince’, The Opinions of Paul began. While such a statement did not apply to other oaths, not sworn in the emperor’s name, such a rule may still have criminalized a very large proportion of the perjuries committed in the later Roman empire, since late antique oath takers swore by the emperors repeatedly.245 Although there is no way of knowing what proportion of the oaths sworn in Late Antiquity did invoke the emperors, at least one third-century North African observer considered that oath takers chose to swear on the emperors for this very reason. According to Tertullian, a contemporary of Septimius, Caracalla, and Severus Alexander,246 swearing by the emperors was evidence of a declining belief in the traditional gods of the empire. As he insisted in his apologetical treatise To the Nations, ‘[T]he danger of swearing by the gods has vanished.’247 While this remark might be interpreted as a premature declaration of victory by a committed

ad Cyprum insulam perducatur, in qua tua sublimitas relegatum esse cognoscat.’ For ‘relegation’ to in The Opinions of Paul, see PS 5.4.11–17, 5.23.19, 5.25.10. 241 PS 5.4.11, 5.23.4, 5.25.8–13, 5.26.3, 5.28, and 5.30b.1, respectively. 242 PS 5.21.4, 5.23.14. 243 D 48.4.7.3: ‘Nec lubricum linguae ad poenam facile trahendum est.’ 244 See p. 77 n. 234 above: ‘tamen’. 245 See pp. 68–9 above. 246 For the traditional chronology of Tertullian’s career, see Ernst Nöldlechen, Die Abfassungszeit der Schriften , Texte und Untersuchung zur Geschichte zur Geschichte der altchristlichen Literatur 5 (Leipzig: J. C. Hinrichs, 1888), 25–9. 247 Tertullian, Ad nationes, 1.10, ed. J. G. Ph. Borleffs, CCSL 1 (Turnhout: Brepols, 1954), 27: ‘Immo, iam per deos deierandi periculum euanuit.’ 78

monotheist,248 Tertullian added an explanation, which he considered to furnish the evidence of non-Christian swearers’ hypocrisy. ‘[T]he bond of swearing by Caesar [is] considered to be more powerful’, the apologist observed, ‘for those committing perjury on Caesar are more easily punished (punirentur) than those committing perjury on any “Jove”!’249 If Tertullian is correct, then oath takers chose to invoke the persons of the emperors precisely because the methods of enforcement described in Ulpian’s opinion and The Opinions of Paul were considered to be effective. From a juristic point of view, such oath taking was usually unnecessary; famously, all that a valid contract required was the verbal exchange of question and answer, spondes?– spondeo.250 By swearing oaths on the emperor, late Roman inhabitants created novel mechanisms for enforcement, transforming what would have been a mere private offence – such as the failure to repay a loan251 – into a public one.

Once the possibility of criminal penalties has been admitted, the outlines of a criminal or criminalized procedure for perjury can begin to emerge. In numerous cases, such as the loan solemnized by oath in the opinion of Ulpian, a civil plaintiff seeking to enforce a sworn agreement would have had a further complaint to make against his or her defendant. Although no crimen periurii has been identified, the magistrate presiding in such a case – which increasingly resembled criminal trials anyway, especially in the provinces252 – might choose to impose additional degrading penalties, beginning with the corporal punishment attested by Ulpian and The Opinions of Paul.253 If the defendant were rich and able to pay, financial penalties could be included, particularly where the terms of the agreement had stipulated a financial penalty, and the civil disabilities of infamia would follow.254 Nevertheless, if the perjuror was an honestior and the

248 On Tertullian’s rhetoric see e.g. Cecilia Ames, ‘Roman Religion in the Vision of Tertullian’, in Jörg Rüpke, ed., A Companion to Roman Religion (Oxford: Blackwell, 2007), 457–71. 249 Tertullian, Ad nationes, 1.10, ed. Borleffs, CCSL 1, p. 27: ‘[P]otiore habita religione per Caesarem deierandi … facilius enim per Caesarem peierantes punirentur quam per ullum Iovem!’ 250 See e.g. M. H. Crawford, ‘Foedus and Sponsio’, Papers of the British School at Rome 41 (1973): 1–7. 251 See p. 72 n. 202 above. 252 See p. 42 n. 14 above. 253 See pp. 72 n. 202, 77 n. 234 above. 254 See e.g. CTh 2.9.3 = CJ 2.4.41 (a. 395): ‘[N]on sol(um) inuratur infamia, verum etiam actione privatus restituta poena, (quae) pactis probata inser(t)a.’ 79

perjury were considered serious enough, the magistrate might also choose to relegate the party who had been thus exposed – at least in late third- through fourth-century North Africa and the eastern provinces, where The Opinions of Paul were written and transcribed.255 Importantly, all of these penalties appear to have been imposed summarily, in the sense that no separate perjury trial was deemed necessary (whether under the lex Iulia maiestatis or any other). Alternatively, we should not underestimate the possibility that private perjurors were prosecuted extra ordinem, i.e., outside the ‘order’ of classical crimes.256 In this case, the criminal penalties of beating and banishment observed in The Opinions of Paul make even more sense, as criminal cognitiones in the provinces embraced perjurors within their scope. As we have seen, provincial governors were exhorted to track down various classes of offender, including the ‘sacrilegious’, in which category perjurors might be included.257 The letters of Augustine appear to contain an example: according to the letters which he exchanged with another bishop, Auxilius of Nurco in Mauretania, and an imperial comes in North Africa, Classicianus, Classicianus had ‘c[o]me to the church [in Nurco] accompanied by an entourage of a few men befitting his position of authority’, ‘and spoke[n] with [the bishop] so that [he] would not … favour those persons who, by falsely swearing upon the Gospels, sought in the very house of faith a means to break their faith.’258

Intriguingly, the Leiden Codex of The Opinions of Paul contains a clue as to the identity of many of the perjurors prosecuted in Late Antiquity. Although the perjurors pursued by Classicianus appear to have been poor debtors,259 the author of The Opinions of Paul apparently had a different class in mind. According to the text, magistrates in perjury disputes possessed the alternative of either ‘relegat[ing]’ the convicted perjuror, presumably if the perjury were more

255 On the westward diffusion of The Opinions of Paul, see e.g. Ernst Levy, West Roman Vulgar Law: The Law of Property (Philadelphia: The American Philosophical Society, 1951). 256 See p. 44 n. 31 above. 257 See pp. 41 n. 13, 44 n. 26 above. Cf. imperial constitutions which prohibited pardons for ‘sacrilege against the Imperial Majesty’: CTh 9.38.3 (a. 367, 369), 9.38.7–8 (aa. 384, 385). 258 Augustine, Epistulae, 250.1, ed. A. Goldbacher, CSEL 57 (Vienna: Tempsky, 1911), 593–4: ‘[Q]uod uenerit ad ecclesiam apparitione paucorum suae potestati congrua comitatus et egerit tecum, ne … faueris eis, qui per euangelia peierando adiutorium uiolandae fidei in ipsa domo fidei requirebant’ (tr. Roland J. Teske, The Works of Saint Augustine: A Translation for the Twenty-first Century, ii.4: Letters 211–70, 1*–29* [Hyde Park, NY: New City Press, 2005], 183). Cf. Augustine, Epistulae nuper in lucem prolatae, 1. 259 Kevin Uhalde, Expectations of Justice in the Age of Augustine (Philadelphia: The University of Pennsylvania Press, 2007), 39–40. 80

severe, or of ‘temporarily suspend[ing]’ him ‘from the town council’, if the perjury were less severe: aut relegatur aut curia ad tempus submovetur.260 While relegation itself already implies an honestior-rank perjuror,261 this alternative suggests that many of the perjurors envisioned by the manual were the members of town councils, municipal aristocrats who generally comprised the wealthiest and most socially influential part of a town’s population.262 While decurions as a class may not have received as much scholarly attention as the Roman military, imperial legislation makes clear that the curial class was perceived as equally essential to the empire’s governance. From an imperial perspective, decurions were responsible for collecting and transmitting taxes,263 assisting with the public post,264 witnessing the production of local government records,265 and even heating the public baths.266 At 192 individual constitutions, legislation concerning decurions accounts for the single longest surviving section of The Theodosian Code.267 Moreover, like the soldiers and administrators who frequently inherited their offices and were periodically prosecuted for desertion,268 town councillors were obliged to serve involuntarily. Dozens of imperial constitutions insisted that sons succeed their fathers,269 and some of these constitutions spoke of

260 See p. 77 n. 234 above. 261 See p. 77 n. 237 above, and Garnsey, Social Status, 103–78 passim. 262 For overview see Jones, Later Roman Empire, i, 724–31, 737–57. For more recent discussion of the curial class, see also Benet Salway, ‘Prefects, Patroni, and Decurions: A New Perspective on the Album of Canusium’, The Bulletin of the Institute of Classical Studies 44/S73 (2000): 115–71; Henrik Mouritsen, ‘Freedmen and Decurions: Epitaphs and Social History in Imperial ’, The Journal of Roman Studies 95 (2005): 38–63; and Paul McKechnie, ‘Christian City Councillors in the Roman Empire Before Constantine’, The Interdisciplinary Journal of Research on Religion 5 (2009): 1–20. 263 See e.g. CTh 12.1.8 (a. 323), 12.1.70 (a. 365), 12.1.97 (a. 383), 12.1.117 (a. 387), 12.1.173 (a. 410, 409), 12.1.186 (a. 429). 264 CTh 12.1.21 (a. 335, 334), 12.1.119 (a. 388). 265 CTh 12.1.151 (a. 396). 266 CTh 12.1.131 (a. 393). 267 CTh 12.1–192. 268 See pp. 55–6, 63–4 above. 269 See e.g. CTh 12.1.7 (a. 320, 329), 12.1.14 (a. 326, 353), 12.1.15 (a. 329, 319), 12.1.18 (a. 329, 353, 326), 12.1.22 (a. 336), 12.1.26 (a. 338), 12.1.31–2 (a. 341), 12.1.35 (a. 343), 12.1.37 (a. 344), 12.1.43 (a. 355), 12.1.49.1 (a. 361), 12.1.51 (a. 362), 12.1.53 (a. 362), 12.1.57–8 (a. 364), 12.1.64 (a. 368, 370, 373), 12.1.69 (a. 365, 368, 370, 373), 12.1.74 (a. 371), 12.1.78–9 (aa. 372–5), 12.1.89 (a. 382, 381), 12.1.93 (a. 382), 12.1.98 (a. 383), 12.1.101 (a. 383), 12.1.105 (a. 384). 81

curial obligations as ‘bonds’ (nexus curiales, nexus curiae)270 or ‘chains’ (vincula)271 – language which strikingly recalls the use of an oath. As we have seen, soldiers and administrators were ‘bound’ (innexi) by ‘oaths of service’,272 while the ‘chain of an oath’ (vinculum sacramenti) proved to be one of Ambrose of Milan’s favourite expressions for oath taking.273 Given these similarities, we must consider the possibility that at least certain curial aristocrats were bound to their offices by oath, and that decurions had an interest in supervising their fellow decurions’ oaths in a way analogous to that of soldiers and administrators.274

This class-based dimension of certain perjury prosecutions highlights what Jill Harries has called the late antique ‘culture of criticism’, in which Roman emperors, their lawyers, and Christian bishops more aggressively criticized the false accusations, false documents, and false judgments of Roman litigants, witnesses, and judges.275 Typically, the ‘culture of criticism’ targeted officials within the imperial hierarchy, as when Theodosius II’s government attempted to combat the persistence of bribery amongst provincial governors. Seeking to prevent the rise of officials through ‘ambition’, the under Theodosius sought to curb such acts of corruption through imposing an oath on appointed governors, and granting a right of accusation, ‘as of a public charge’, in the event that ‘anyone should dare to neglect the offered oaths’.276 Despite this focus, as The Opinions of Paul also illustrates, local aristocrats could be affected by the culture of criticism too. The juristic manual acknowledged that decurions were suspended from their town councils for a wide array of offences, including committing false witness,277 chopping

270 CTh 7.1.6 (a. 368, 370, 373), 8.4.8.1 (a. 364), 12.1.58.2 (a. 364), 12.1.64 (a. 368, 370, 373), 12.1.89 (a. 382, 381), 12.1.107 (a. 384), 12.1.121 (a. 390), 12.1.161 (a. 399), 12.1.168 (a. 409), 12.1.177–8 (aa. 413–5), 12.1.180 (a. 416). 271 CTh 12.1.82 (a. 380), 14.3.14 (a. 372). 272 CTh 12.1.105 (a. 384). 273 See e.g. Ambrose, De Cain et Abel, 1.10.43, and Expositio psalmi CXVIII, 14.14. 274 For desertions by decurions, see e.g. CTh 12.1.11 (a.325), 12.1.13 (a. 326), 12.1.29 (a. 340), 12.1.38 (a. 346, 357), 12.1.63 (a. 370, 373), 12.1.91 (a. 382). Notably, one constitution characterized curial-class desertion as a kind of ‘mendacity’: CTh 12.1.43 (a. 355): ‘fraudis huius commenta’ (cf. the rhetoric of the Fragmenta Vaticana at pp. 47–8 n. 49 above). Another constitution acknowledged that decurions charged each other with offences: CTh 12.1.164 (a. 399): ‘a suis consortibus in iudicio … lite pulsabitur’. On petitions by decurions, see Corcoran, Empire, 101–5. 275 See p. 47 n. 45 above. 276 See p. 65 n. 156 above: ‘tunc si quis ausus fuerit praebita sacramenta neglegere … tamquam crimen publicum concedimus facultatem’. 277 PS 5.15.5: ‘Qui falso uel uarie testimonia dixerunt … aut in insulam relegantur aut curia submoventur.’ 82

down a neighbour’s fruit bearing trees under the cover of darkness,278 and receiving bribes while acting as magistrates with delegated authority (iudices pedanei).279 Moreover, although decurions were ordinarily exempt from corporal punishments,280 the sententia on perjury implied that a perjured decurion could be beaten.281 As we have seen, the emperor Constantine made decurions subject to the use of torture uniquely in cases of forgery,282 and this policy may have reflected some of the emperor’s own commitments. Just as the military emperors Valentinian and Gratian had issued a constitution criminalizing military perjuries in 369,283 Constantine, the grandson of a ‘most noble man’ from north-central Illyria,284 was reputed to possess a particular distaste for perjuries. In c.307–11, an anonymous rhetorician who delivered a panegyric before the young emperor at Trier noted that his own native city of Autun was recommended for a certain spring, which was useful in the detection of perjuries. ‘Now may all the temples be seen to beckon to you,’ the rhetorician hopefully expressed, ‘and particularly our Apollo, whose boiling waters punish perjuries – which ought to be especially hateful to you.’285

Considered in the light of The Opinions of Paul, additional sources which also express a non-classical view of perjuries appear less aberrant. Curiously, an opinion of Modestinus preserved in The Digest dealt with an unusual variety of perjury under the rubric of stellionatus, or ‘swindling’.286 According to the classical jurists, some people contrived to sell or exchange certain items which they had previously pledged to others, and then swore that the items in question

278 PS 5.20.6. 279 PS 5.28.1. 280 See e.g. CTh 12.1.39 (a. 349, 350), 12.1.47 (a. 359), 12.1.80 (a. 380), 12.1.85 (a. 381), 12.1.126 (a. 392), 12.1.128 (a. 392), 12.1.190 9 (a. 436). 281 See p. 77 n. 234 above: ‘fustibus … animaduersus’. 282 CTh 9.19.1 = CJ 9.22.21 (a. 316). 283 See pp. 60–3 above. 284 Historia Augusta, Div. Claud., 13.2, tr. David Magie, Historia Augusta, LCL 263 (Cambridge, MA: Harvard University Press, 1932), 176: ‘nobilissimo gentis Dardanae viro’. 285 Incerti panegyricus Constantino Augusto 6(7).21.7, ed. and tr. C. E. V. Nixon and Barbara Saylor Rodgers, In Praise of Later Roman Emperors: The Panegyrici Latini (Berkeley and Los Angeles: The University of California Press, 1994), 251, 583: ‘Iam omnia te uocare ad se templa uideantur praecipueque Apollo noster, cuius feruentibus aquis periuria puniantur, quae te maxime oportet odisse.’ 286 D 47.20. 83

belonged to them. If an oath taker did so, ‘There will be a charge of swindling for perjury … and he will be sent into temporary exile’: the same type of penalty recorded by The Opinions of Paul.287 Meanwhile, in late antique Ravenna, certain oath takers appear to have believed that they were liable to prosecution for perjury. In 564, a Germanus, acting as the legal guardian of a ward whose father had died, accepted a portion of the estate from his mother, a femina clarissima, who registered the deacon’s acceptance in the city’s municipal archive.288 According to the agreement, the deacon Gratianus promised that he would not bring an action against the widowed woman in the future, with the object of acquiring any further part of the inheritance. Importantly, Gratianus solemnized his promise by means of an oath, sworn on ‘the unconquered prince governing the Roman empire’.289 Nevertheless, in the event of perjury, the agreement went on to state that Gratianus accepted liability ‘according to the laws’: ‘Then may I not only incur charges of perjury according to the laws, but I also promise that I will give … under the name of a penalty, 36 solidi of gold before the commencement of the suit.’290 In this case, two features are especially noteworthy. First, Gratianus, the widow, the scribe who recorded the agreement,291 and the town councillors who registered all seem to have considered perjury an offence which came within the scope of ‘laws’ (leges). Secondly, as with the perjurors in civil cases whose condemnations for perjury probably occurred summarily,292 Gratianus would not have enjoyed any presumption of innocence, once the perjury had been exposed. On the contrary, he conceded that he would pay the financial penalty stipulated, before any additional penalties which might be imposed in the subsequent perjury proceeding.293

287 D 47.20.4: ‘De periurio, si sua pignora esse quis in instrumento iurauit, crimen stellionatus fit, et ideo ad tempus exulat.’ 288 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8. 289 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, ll. 1.12–13: ‘invictissimi principis R[oma]num gubernantis imperium’. 290 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, l. 2.1: ‘tunc non solum ut periurii reatus incurram secundum leges, verum etiam daturum me promitto … poenae nom(ine) ante litis ingressum auri solidos triginta et sex’. Part of this formula (periurii reatus or reatum incurrere) is attested in other late antique and medieval sources, notably the papal register of Gregory the Great (Tjäder, ‘Kommentar’, in idem, Die nichtliterarischen lateinischen Papyri, i, 432). 291 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, l. 2.2: ‘Iohanni tabellioni’. 292 See p. 80 above. 293 See p. 84 n. 290 above: ‘non solum ut periurii reatus incurram … verum etiam daturum me promitto … poenae nom(ine) ante litis ingressum’ (my emphasis). Indeed, there may have been so many perjury proceedings at certain 84

Taken collectively, The Opinions of Paul, the Ravenna papyri, and diverse opinions of jurists like Modestinus and Ulpian cast doubt on the belief that even ordinary perjuries were not justiciable in Roman law. Especially for the post-classical period, and especially for those times and places where The Opinions of Paul were consulted (such as late third- and early fourth-century North Africa and beyond), perjurors were exposed to criminal-type penalties, and even to criminal accusations in cases heard extra ordinem. Once Constantine had conferred legislative validity on The Opinions of Paul, in c.327–8, the entirety of this collection also became the ‘law of the land’ – presumably including our sententia.294 In this evolution, the person of the emperor played a prominent role. The Opinions of Paul specifically addressed perjuries ‘on the salvation of the prince’,295 and Tertullian considered that the use of such formulas was a deliberate strategy to ensure the enforceability of an oath.296 As late as 564 (and for many years beyond), oath takers like the Ravenna deacon Gratianus were still swearing by the emperor at Constantinople.297 Nevertheless, a certain tendency away from the centrality of the emperor is detectible even in the classical sources. In Modestinus’s opinion on stellionatus, for example, no part of the surviving opinion limits the crimen’s availability to cases invoking the emperor.298 Fascinatingly, The Opinions of Paul seemed to concede that the penalization of perjuries represented a departure from classical principles. As the opening of the sententia observed, ‘He who should commit perjury on the salvation of the prince cannot be condemned’ under the lex Iulia maiestatis.299 Regardless, as The Opinions of Paul also observed, maledictory and cursing words (such as perjuries were easily interpreted to be) aggravated a charge of treason,300 and oath taking on the Roman emperor seems

points in Roman history that perjury accusations themselves were able to be seen as vexatious: ‘Causa iureiurando … decisa nec periurii praetextu retractari potest’ (CJ 4.1.1 [a. 213]). Perhaps this is the real reason that some imperial governments discouraged perjury prosecutions. 294 CTh 1.4.2 (a. 327, 328): ‘Universa, quae scriptura Pauli continentur, recepta auctoritate firmanda sunt. … Ideoque sententiarum libros plenissima luce et perfectissima elocutione et iustissima iuris ratione succinctos in iudiciis prolatos valere minime dubitatur.’ 295 See p. 77 n. 234 above: ‘qui per salutem principis periurauerit’. 296 See p. 79 n. 249 above: ‘facilius enim … peierantes punirentur’. 297 On the persistence of imperial cult at Ravenna, see McCormick, Eternal Victory, 73, 235. 298 See p. 84 n. 287 above: ‘De periurio, si … quis in instrumento iurauit’. (Of course, Modestinus’s opinion may originally have contained such language, and Justinian’s editors could have edited it out.) 299 See p. 77 n. 234 above: ‘Hac lege damnari non potest.’ 300 PS 5.29.1: ‘Quod crimen non solum facto, sed et verbis impiis ac maledictis maxime exacerbatur.’ 85

to have taught numerous Romans to consider ordinary perjuries as justiciable. In the complaints against private debtors, in the complaints of people like Gratianus’s widow, and in the complaints of curial aristocrats, late antique Romans seem to have prosecuted the perjurors in their midst – the rescript of Severus Alexander notwithstanding.

6 Perjury, False Witness, and Forgery

Up until this point, most of the oaths which we have touched on in this chapter were used to solemnize promises, as opposed to statements. The sacramentum militiae was considered to solemnize the soldier’s promise not to desert, and newly appointed governors’ oaths were intended to solemnize promises not to accept bribes. The oaths attested in our juristic works solemnized loans, amongst other private acts, and the deacon Gratianus’s oath solemnized a promise not to claim any additional part of an inheritance. In the most commonly accepted scheme for the scholarly classification of an oath,301 all of these oaths would be considered as ‘promissory’, regulating an oath taker’s behaviour.302 Nevertheless, numerous oaths which were sworn in the ancient and medieval world have also been categorized as ‘assertory’, solemnizing statements, and the most important of these may have been the oaths sworn as a part of a legal process.303 For example, in Domitian’s surviving statute on the privileges of veterans, Marcus Valerius Pollia ‘testified and stated on oath’ that all three of his children had been born during the period of his military service: a classic assertory oath.304 Even during the classical period, as Ian Wood has argued, oaths sworn in provincial courtrooms were an important element in settling disputes. According to the opinion of the second-century jurist Gaius, which we saw above and was

301 See ch. 1, ‘Introduction’, pp. 36–7. 302 Cf. John P. Meier, ‘Did the Historical Jesus Prohibit All Oaths? Part 1’, The Journal for the Study of the Historical Jesus 5/2 (2007): 179. 303 Where Ian Wood suggested that ‘the Church’s own interest in perjury … is likely to be relevant to an understanding of the context in which legal oath-taking became the normal method of proof’, he had assertory oaths primarily in mind (see p. 10 n. 46). 304 FIRA(2) 1, no 76, p. 427: ‘Ibi M. Valerius M. f. Pol(lia) Quadratus … testatus est iuratusque dixit per I(ouem) O(ptimum) M(aximum) et Genium | sacratissimi Imp(eratoris) … in militia | sibi L. Valerium Valentem et Valeriam Heraclun et Valeriam | Artemin omnes tres s(upra) s(criptos) natos esse.’ 86

incorporated in Justinian’s Digest,305 ‘[I]t is a frequent practice of judges in doubtful cases to pronounce, after an oath has been exacted, in favour of the party swearing.’306 The Digest likewise provides examples of swearing in order to attest the fact of a person’s status,307 the fact that a debt is owed,308 the fact that a property belonged to someone,309 the fact that a person was innocent of a charge,310 and even the fact that a woman was pregnant.311

From the early fourth century onward, oath violations and acts of false witness appear to have been increasingly associated. Given our uncertainty about the use of testimonial oaths in classical Roman law,312 dating this association with any precision is probably impossible. Nevertheless, such oaths are occasionally reflected in the legislation of Constantine and his successors, who used oaths on other occasions to combat problems like judicial corruption.313 According to a Constantinian constitution of 334, ‘witnesses shall be bound by the sanctity of an oath’: the first instance of statutory language with which I am familiar, positively imposing an oath on Roman witnesses.314 This oath, furthermore, was the subject of more legislation than has survived. As the same statute observed, the emperor had ‘previously’ insisted that the present

305 See ch. 1, ‘Introduction’, p. 9 n. 44. 306 D 12.2.31: ‘solent enim saepe iudices in dubiis causis exacto iureiurando secundum eum iudicare qui iurauerit’. For discussion see Ian Wood, ‘Disputes in Late Fifth- and Sixth-Century Gaul: Some Problems’, in Wendy Davies and Paul Fouracre, eds, The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986), 17. 307 See e.g. D 12.2.3.2: ‘[V]t puta detuli iusiurandum et iurasti in potestate mea te non esse.’ 308 D 12.2.9.1–6, 12.2.13.6–12.2.14. 309 D 12.2.9.7–12.2.12, 12.2.13.3. 310 D 12.2.13.2: ‘qui iurauit furtum se non fecisse’. 311 D 12.2.3.3: ‘an praegnans sit mulier uel non’. 312 See ch. 1, ‘Introduction’, pp. 33–4. 313 See pp. 64–5 above. On the judicial vow, extended by Constantine’s government from private to criminal law, see Yan Thomas, ‘Confessus pro iudicato: L’aveu civil et l’aveu pénal à Rome’, in Jean-Claude Maire Vigueur, ed., L’aveu, antiquité et moyen âge: Actes de la table ronde organisée par l’École française de Rome, 28–30 mars 1984, Collection de l’École française de Rome 88 (Rome: École française de Rome, 1986), 97–9. 314 CTh 11.39.3 = CJ 4.20.9 (a. 334): ‘Iurisiurandi religione testes, priusquam perhibeant testimonium … artari praecepimus.’ Technically, this oath could also be classified as promissory, since it may have contained a promise to tell the truth in the future: see e.g. ‘Oaths’, in Christopher B. Gray, The Philosophy of Law: An Encyclopedia, ii (New York: Garland, 1999), 605. 87

provisions should be followed.315 While such legislative evidence may not be abundant, both testimonial and judicial oath taking (oaths sworn in dispute settlement) do recur throughout The Theodosian Code. According to an early fifth-century constitution of the western emperor (r. 393–423) and Theodosius II, honestior-rank witnesses in cases of disputed inheritances were to be questioned under oath, while humilior-rank witnesses were subject to the use of torture.316 In a comparable case appearing in a ‘novel’ of Theodosius, the heirs were likewise supposed to be questioned under oath, and any debts owed by the deceased were to be brought forward by means of ‘sworn fidelity’.317 Similarly, in a constitution dating to the early part of Honorius’s reign, following the suppression of a rival claim on the throne by a certain Eugenius,318 Honorius’s government found it useful to confirm the validity of legal acts conducted ‘in the times of the tyrant’. Near the end of the government’s list we find cases ‘terminated by an oath’: sacramento terminata.319 Thus a century or more after Constantine imposed a testimonial oath, imperial governments were ready to assume that oath taking was a normal feature of Roman courtrooms.

Whenever a sworn litigant or witness made his or her statements falsely, perjury and false witness coincided; and by contrast to perjury itself, some cases of false witness were established as crimes in classical law. According to the criminal statute on most homicides, the lex Cornelia de sicariis et veneficis,320 the quaestio for ‘cutthroats’ and ‘poisoners’ was empowered to try offenders for ‘speak[ing] false witness by means of fraud’ in capital cases.321 Of ultimately greater significance, however, is that all other false witness cases were assimilated to the classical law on forgeries, the lex Cornelia testamentaria nummaria.322 Known in Late Antiquity as the lex

315 CTh 11.39.3 = CJ 4.20.9 (a. 334): ‘iam dudum’. 316 CTh 2.27.1.2 (a. 421): ‘vel sacramento dignitas vel suppliciis terror exploret’. 317 NTh 22.2.3 (a. 443): ‘iurata fide’. 318 ‘Fl. Eugenius’, 6, in A. H. M. Jones, J. R. Martindale, and J. Morris, The Prosopography of the Later Roman Empire, i (Cambridge: Cambridge University Press, 1971), 293. 319 CTh 15.14.9 (a. 395). 320 See p. 45 n. 34 above. 321 Crawford, Roman Statutes, ii, no 50, p. 752: ‘falsumue testimonium dolo malo dixerit, <…> quo quis publico iudicio rei capitalis condemnaretur’. 322 J. A. Crook, ‘The Lex Cornelia “de falsis”’, Athenaeum NS 65 (1987): 163–71. 88

Cornelia de falsis or de falso,323 this statute became the standard law on legal falsehoods, and forgery itself became the archetypical crimen falsi. Unfortunately, the original text of the statute does not survive, and the proposed reconstruction of it by E. E. Kocher omits any reference to false testimony.324 Despite this omission, both classical and post-classical jurists interpreted the statute expansively, most likely bringing cases of false witness within its scope by means of analogy. In an opinion of Modestinus preserved in The Digest, ‘It is a rule of law that those who give conflicting evidence should be liable as if they had committed forgery.’325 Similar opinions dealt with people who had conspired to commit false testimony or who had received payment for their testimony.326 For a post-classical text like The Opinions of Paul, there was no ambiguity: ‘Those who should speak their testimony either falsely or variably, or who should offer testimony to either party, are driven into exile or relegated to an island or suspended from the town council.’327 Although this opinion was contained in the manual’s section on witnesses, the manual’s section on the lex Cornelia expanded the definition of forgery to encompass almost any legal falsehood, potentially including ordinary perjuries. As The Opinions of Paul summarized: ‘Falsum is whatever is not in the truth, yet is asserted instead of the truth.’328

This expansion in the definition of falsum anticipated a number of texts in which ‘perjury’ and ‘false witness’ could be synonymous. While perjury’s criminalization may be most in evidence in late antique North Africa, this association between perjury and false witness may be most in evidence in late antique Gaul and Spain, where post-imperial rulers relied on provincial Roman

323 Consider the rubrications for CTh 9.19 and CJ 9.22. 324 See Crook, ‘Lex’, and Eberhard Eike Kocher, Überlieferter und ursprünglicher Anwendungsbereich der ‘Lex Cornelia de falsis’ (Munich: Schön, 1965). 325 D 48.10.27: ‘Eos, qui diuersa inter se testimonia praebuerunt, quasi falsum fecerint, et praescriptio legis teneri pronuntiat.’ 326 D 48.10.1, 48.10.9.3 (conspiracy); 48.10.1.1–2, 48.11.6.pr. (payment). 327 PS 5.15.5: ‘Qui falso uel uarie testimonia dixerunt uel utrique parti prodiderunt, aut in exilium aguntur aut in insulam relegantur aut curia submouentur.’ 328 PS 5.25.3: ‘Falsum est, quidquid in ueritate non est, sed pro uero adseueratur.’ Notably, in the early-to-mid fifth century, Bishop Valerian of Cimiez considered that those guilty of falsitas – apparently convicted perjurors? – suffered the mutilation or amputation of their hands: ‘Nemo cum sanam dexteram videt falsitatis debita jure supplicia judicet fuisse concessa’ (Valerian of Cimiez, Homiliae, 1, ed. J.-P. Migne, PL 52 [Paris, 1894], col. 694A). Cf. Humfress, Orthodoxy, 156. 89

lawyers in order to bring forth the earliest law codes of the post-Roman successor states.329 Most importantly, in 506, the Visigothic king Alaric II (r. 484–507) promulgated his Roman Law of the or Breviary of Alaric, the first major attempt at codifying Roman law since The Theodosian Code of 438–9. By contrast to the latter, whose final version had expected to include juristic works but only included legislation,330 The Roman Law of the Visigoths made an attempt at synthesizing both Roman jurisprudence and Roman legislation. Making a selection of imperial constitutions from The Theodosian Code, Alaric’s commentators both added interpretive comments of their own and appended substantial portions of both classical and post-classical juristic texts, notably The Institutes of Gaius, the rescripts of The Gregorian and Hermogenian Codes, and The Opinions of Paul.331 As John Matthews has demonstrated, Alaric II’s commentators variously selected and commented on these texts, for – with extremely few exceptions – no constitution furnished with an ‘interpretatio’ in Mommsen’s edition of The Theodosian Code was excluded from The Roman Law of the Visigoths.332 As a result of this process of recodification and commentary, historians can sometimes see how late imperial legislation was received and interpreted in a provincial setting, or at least in the Gallican and Spanish provinces where The Roman Law of the Visigoths was made and circulated. As we shall now see, the differences between the legislative texts and the Alarician commentaries are particularly revealing with respect to false testimony.333

329 On this process in general, see e.g. P. S. Barnwell, ‘Emperors, Jurists, and Kings: Law and Custom in the Late Roman and Early Medieval West’, Past and Present 168 (2000): 6–29. For the persistence of Roman courts in sixth- century Gaul, see Wood, ‘Disputes’, passim. 330 CTh 1.1.5 (a. 429); for discussion see Matthews, Laying Down, 58. 331 John F. Matthews, ‘Interpreting the Interpretationes of the Breviarium’, in Ralph W. Mathisen, ed., Law, Society, and Authority in Late Antiquity (Oxford: Oxford University Press, 2001), 11–32. For background to The Roman Law of the Visigoths, see Gustav Hänel, preface, in Hänel, ed., Lex Romana Visigothorum (repr., Aalen: Scientia, 1962), v–cx. 332 Matthews, ‘Interpreting’, 14 nn. 9–10. 333 On Visigothic interest in the Roman crimen falsi, see e.g. Hermann Nehlsen, ‘Der Schutz von Rechtsaufzeichnungen gegen Fälscher in den Germanenreichen’, in Fälschungen im Mittelalter: Internationaler Kongreß der Monumenta Germaniae Historica, München, 16–19 September 1986, ii: Gefälschte Rechtstexte, Der bestrafte Fälscher, Schriften 33 (Hanover: Hahn, 1988), 546–63 passim, and Olga Marlasca Martínez, ‘La regulación de la falsificación de monedas en el derecho romano y en la ley de los Visigodos’, Anuario de historia del derecho español 70 (2000): 405–22. 90

In a remarkable example, Alaric’s commentators composed an interpretation for a constitution on clerical testimony, ascribed to the emperors Gratian, Valentinian II, and .334 With increasing numbers of Christians in the empire, Christian clergy were drawn into Roman judicial affairs ever more deeply, and successive governments accorded them various privileges. Perhaps most famously, the government of Constantine conferred the power of settling private disputes on episcopal courts,335 while the testimony of a single bishop was rendered sufficient to solve secular cases.336 Subsequent emperors attempted to limit the scope of these privileges,337 yet the judicial activities of Christian clergy continued. In c.385–6, the eastern government of Theodosius I issued a constitution to the governor of Egypt, confirming the immunity of priests and higher clergy from torture but also providing for cases of false witness committed by clergy. Chosen for inclusion in The Roman Law of the Visigoths in 506, both the constitution and the interpretatio read:

The same Augustus to Paulinus, Augustal Prefect.

Priests shall speak their testimony without the outrage of torture, but under the condition that they shall not make false pretenses (falsa). 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 priests 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 so much through Our commands should be found involved in a secret crime (occulto crimine), all the more are they worthy of punishment.

334 CTh 11.39.10 = LRV 11.14.5 (a. 385, 386). This attribution is problematic; Gratian, the western emperor, was assassinated in 383 (Fasti Vindobonenses priores, 501–2), yet the constitution dates itself to 385, while the constitution’s addressee served in 386 (‘Paulinus’, 8, in Jones, Martindale, and Morris, Prosopography, i, 677). 335 Constitutiones Sirmondianae, 1 (a. 333). 336 Constitutiones Sirmondianae, 1 (a. 333): ‘Testimonium etiam ab uno licet episcopo perhibitum omnis iudex indubitanter accipiat.’ On episcopal courts see John C. Lamoreaux, ‘Episcopal Courts in Late Antiquity’, The Journal of Early Christian Studies 3/2 (1995): 143–67, and Noel Lenski, ‘Evidence for the Audientia episcopalis in the New Letters of Augustine’, in Ralph W. Mathisen, ed., Law, Society, and Authority in Late Antiquity (Oxford: Oxford University Press, 2001), 83–97. 337 See e.g. NVal 35.1 (a. 452). 91

Given on the eighth day before the kalends of August in the year of the first consulship of Augustus and the consulship of Bauto.

INTERPRETATION: Priests shall be able to give their testimony without 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 priests 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 (mendacii crimine).338

A comparison of the constitution of 385–6 and the interpretatio of 506 is insightful. At a basic level, both of these texts agree that acts of false witness were justiciable; the legislation imagines that the ‘false pretenses’ would be spoken aloud, while both the legislation and the interpretation call for other clerics to be ‘heard’.339 Despite the oral character of this testimony, the classical legislation on forgery (falsum) is considered as relevant, although the defendant in such a case may be a Christian priest.340 Indeed, both the constitution and the interpretation seek to justify this state of affairs to their fourth- and sixth-century audiences: ‘For if those persons upon whom We have bestowed so much … should be found involved in a secret crime, all the more are they worthy of punishment’; ‘because those persons are more worthy of punishment, to whom the

338 CTh 11.39.10 = LRV 11.14.5 (a. 385, 386) + Interp.: ‘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 docebantur fuisse mentiti, quia magis poena digni sunt, quibus cum lex reverentiam prestet, suae professionis inmemores in mendacii crimine deteguntur.’ 339 ‘Presbyteri … testimonium dicant, ita tamen, ut falsa non simulent. Ceteri vero … audiantur’; ‘Alii vero … audiantur’ (see p. 92 n. 338 above). 340 In criminal matters such as forgery, clerics were supposed to be subject to secular courts: CTh 16.2.23 (a. 376). For discussion see e.g. Eric Fournier, ‘Exiled Bishops in the Christian Empire: Victims of Imperial Violence?’, in H. A. Drake, ed., Violence in Late Antiquity: Perceptions and Practices (Aldershot: Ashgate, 2006), 157–66. 92

law grants reverence’.341 Nevertheless, one difference in phrasing may be telling. According to the constitution, priestly false witnesses were apprehended in a ‘secret crime’, occulto crimine.342 By contrast, the interpretatio of 506 interprets the phrase occulto crimine as mendacii crimine, ‘the crime of lying’. Like The Opinions of Paul’s greatly broadened definition of falsum, and even like the Ravenna deacon Gratianus’s ‘charges of perjury according to the laws’,343 the interpretatio of 506 seems to have considered legal falsehoods including forgery and false witness as constituting a single, serious crime.344 Moreover, the clerical testimony at issue in 506 would almost certainly have been sworn. Two hundred years had passed since Constantine’s requirement,345 and a few surviving judicial narratives suggest the ubiquity of the oath in these circumstances. Already in c.420, one such narrative describes the perjuries and false testimony of clerics in northern Iberia in particular. According to a letter to Augustine,346 both a priest and one of his female relatives repeatedly denied accusations of heresy on oath, on one occasion before the imperial comes in Spain.347 In the ensuing trial, a local bishop, Sagittius of Lérida, reportedly confirmed the priest’s testimony, ‘commit[ting] perjury in the sight of the whole people … not once but many times’.348 When Alaric’s commentators described a crimen mendacii in 506, it is hard to imagine that this type of offence would not have been included.

Even more striking is the convergence of perjury and false witness in the Visigothic Book of the Judges, which eventually replaced The Roman Law of the Visigoths and other law codes in

341 See p. 92 n. 338 above. 342 Here, the word crimen must refer to behaviour, in the broadened sense that crimen acquired in Late Antiquity (see pp. 42–3 above). 343 See pp. 89 n. 328, 84 n. 290 above, respectively. 344 Cf. Valerian of Cimiez, Homiliae, 1, at p. 89 n. 328 above: ‘falsitatis reo debita jure supplicia’. 345 See pp. 87–8 n. 314–15 above. 346 Augustine, Epistulae nuper in lucem prolatae, 11. 347 Augustine, Epistulae nuper in lucem prolatae, 11.4. 348 Augustine, Epistulae nuper in lucem prolatae, 11.16.4, ed. Johannes Divjak, CSEL 88 (Vienna: Hölder–Pichler– Tempsky, 1981), 63: ‘Ipse autem in conspectu totius populi … non semel sed saepius peierauit affirmans codices in archiuo ecclesiae suae iam ab illo tempore conditos permansisse quos Seuerus penitus nec uidisset.’ For further discussion, see ch. 3, ‘Peccatization’, pp. 141–8. 93

Visigothic Spain.349 Although the codification is quite late, having been issued only in the middle of the seventh century, it contains a number of ‘ancient’ statutes or Antiquae, which may date as far back as the reign of King Euric (r. 466–84), or, perhaps more likely, the reign of King (r. 568–86).350 To be sure, Euric’s laws were far less ‘Roman’ than Alaric’s or even Liuvigild’s,351 yet many of these same statutes drew on Roman sources or evinced awareness of Roman legal concepts.352 Amongst the Antiquae selected for The Book of the Judges, there is a statute which addresses ‘perjuries’ in general, yet which seems to refer to testimonial perjury, primarily, and which draws on Roman legal conceptions of perjury and false witness:

If anyone should kill his soul by means of perjury, or if someone is detected to have perjured himself presumptuously, or if anyone – seeing himself coerced – should knowingly deny the truth, then as soon as the judge should certainly know this, let [the perjuror] be adjudged and receive one hundred lashes; and let him incur the mark of infamy immediately, so that afterwards he may not be permitted to testify. And if he be a more powerful person, let him surrender a fourth of all his properties, following the law above which is contained ‘On forgers’, at the insistence of the magistrate.353

In this remarkable text, both classical and post-classical approaches to perjury are combined. From classical Roman law, the Visigothic Antiqua derives its ‘mark of infamy’, together with the ineligibility to testify – the ‘consequences’ for perjury in the classical law,

349 For background to The Book of the Judges, see Karl Zeumer, ‘Praefatio’, in Zeumer, ed., MGH LL nat. Germ. 1/1 (Hanover: Hahn, 1902), xi–xxviii. 350 P. D. King, Law and Society in the Visigothic Kingdom (Cambridge: Cambridge University Press, 1972), 13, 20. 351 Jill Harries, ‘Not The Theodosian Code: Euric’s Law and Late Fifth-Century Gaul’, in Ralph W. Mathisen and Danuta Shanzer, Society and Culture in Late Antique Gaul: Revisiting the Sources (Aldershot: Ashgate, 2001), 39– 51. 352 For examples see Harries, ‘Not The Theodosian Code’, 43–4. 353 LV 2.4.14 (Antiqua): ‘Si quis animam suam periurio necaverit, seu quisque presumtuose periurasse detegitur, aut si quislibet videns se impressum sciendo veritatem negaverit, dum hoc certius iudex agnoverit, addicatur et centum flagella suscipiat et statim sic notam infamie incurrat, ut postea ei testificari non liceat. Et si potentior fuerit, secundum superiorem legem, que De falsariis continetur, insistente iudice quartam partem facultatum suarum amittat.’ 94

according to A. H. J. Greenidge, though not a criminal penalty sensu stricto.354 From post-classical Roman law, the Antiqua derived its primary penalty of corporal punishment, specified on this occasion as one hundred lashes (flagella).355 The post-classical division between honestiores and humiliores is maintained, here recalibrated as a distinction between the ‘more powerful person[s]’, potentiores, and the rest of the population.356 Perhaps most remarkably, however, although the Antiqua at no point refers to witnesses and testimony directly, acts of false witness are clearly included within the scope of the statute’s ‘perjury’. The clause ‘if anyone … should knowingly deny the truth’ suggests a testimonial context;357 more importantly, potentiores are made subject to the provisions of the Visigothic law on forgery, to which one of the statute’s editors directed the reader in an editorial comment.358 Whereas perjuries might have been absorbed within The Opinions of Paul’s definition of falsum,359 here the opposite seems to have occurred: false testimony (still connected with forgery) has been absorbed into ‘perjury’. At least for the legally minded inhabitants of late antique and Visigothic Gaul and Spain, perjury, false witness, and forgery seem to have existed on a continuum, and the Roman legal custom of referring to classical statutes remained important. Strikingly, this Roman legal inheritance included the practice of summary judgment for perjurors, which we saw earlier.360 In this case, although a witness may not have been the principal defendant in a dispute, no new trial for perjury or false witness was necessary: ‘If anyone should kill his soul by means of perjury … then as soon as the judge should certainly know this, let [the perjuror] be adjudged.’361

354 A. H. J. Greenidge, Infamia: Its Place in Roman Public and Private Law (repr., Aalen: Scientia, 1977), 28ff. 355 Cf. p. 77 n. 234 above: ‘fustibus … animaduersus’. 356 On potentiores in late Roman law, see Andreas Wacke, ‘The “Potentiores”: Some Relations Between Power and Law in the Roman Administration of Justice’, The Irish Jurist NS 13/2 (1978): 372–89; for the Visigothic context, see e.g. Javier Alvarado Planas, ‘Orígenes de la nobleza en la alta edad media’, Anuario de historia del derecho español 76 (2006): 441ff. 357 See p. 94 n. 353 above: ‘si quislibet … veritatem negaverit’. 358 See p. 94 n. 353 above: ‘secundum superiorem legem, que De falsariis continetur’. 359 See p. 89 n. 328 above: ‘Falsum est, quidquid in ueritate non est, sed pro uero adseueratur.’ 360 See pp. 80, 84 above. 361 See p. 94 n. 353 above: ‘Si quis animam suam periurio necaverit … dum hoc certius iudex agnoverit, addicatur.’ Notably, this practice represented another departure from classical juristic opinion, which had tried to protect witnesses in cases where they had testified for the losing side: D 3.2.21. 95

Looking back on our survey of Roman perjuries and false testimony, the selection of evidence has proved extremely important. If we limit ourselves to the classical authorities – Cicero, Tacitus, and the Severan statute – then oath violations do not appear to have been justiciable in Roman law. Yet if we examine a greater diversity of sources, representing not the empire’s centre but its peripheries – North African Christian martyr acts, The Opinions of Paul, Ravenna papyri, and post-imperial legislation from Gaul and Spain – then a different picture of post-classical legal practice can emerge. Contrary to the claims of classicists that perjuries could not be subjected to ‘mortal justice’,362 military and civilian courts were penalizing perjury of the sacramentum militiae by the end of the third century CE, and probably long before that time. Responding to the needs of soldiers, administrators, town councillors, and others who used the courts, especially in the aftermath of the extension of imperial citizenship under the Severan dynasty,363 Roman law devised means for penalizing perjuries in practice – whether these offences were assimilated to the law of forgery, the law of public extortion,364 or even, however reluctantly and incompletely, to the law of treason, where much of the discussion of Roman perjuries took place.365 Especially if an accused perjuror belonged to a certain class, such as soldiers, administrators, and the members of town councils, the perjuror was liable to be prosecuted by his peers, and the late antique ‘culture of criticism’ reinforced this tendency. Frequently criminalized in practice if not necessarily in theory, oath violations seem to have drawn the ire of individual emperors like Constantine, Valentinian, and Theodosius, but also increasingly the censure of Christian bishops – to whom we now turn.

362 Scheid, ‘Oral Tradition’, 27. 363 See pp. 43–4 above. 364 See pp. 64–6. 365 See pp. 68–86. 96

Chapter 3 Peccatization: Perjury and False Witness in Latin Patristic Literature

Similar to the last chapter, the present chapter has a twofold purpose. In the last chapter, I attempted to demonstrate the unusually high profile that perjury and false witness attained in late Roman law; here, I will attempt to demonstrate that these offences increasingly occupied the attention of patristic writers in the , from the last quarter of the fourth century onward.1 At the same time, just as I argued that numerous perjuries were criminalized in late Roman law, I will also argue that these same writers tended to assess both oath violations and false testimony severely – despite the ambivalence of the New Testament texts with respect to oath taking.2 Amongst patristic-era Latin theologians, two in particular stand out. While surviving works by Tertullian,3 ,4 Lactantius,5 and, perhaps most importantly, Ambrose of Milan,6 all contain references to perjury and false witness, these references pale in comparison with those to be found in the works of just two theologians, whose definitions of perjury went on to be incorporated in medieval canon law.7 In the surviving works of Jerome of Stridon (c.347–420), the biblical critic and principal translator of the Latin Vulgate Bible, explicit references to perjury and false witness may be found in at least thirty-nine individual texts.8 In the surviving works of his younger

1 On the significance of this period, see e.g. Peter Brown, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West, 350–550 AD (Princeton: Princeton University Press, 2012), xxii. 2 See ch. 1, ‘Introduction’, § 2, ‘The Silence of the New Testament’, pp. 23–33. 3 Tertullian, Ad nationes, 1.10, 1.17, 2.7; Adversus Iudaeos, 2; Adversus Marcionem, 2–4; Apologeticum, 28; De anima, 28; De baptismo, 5; De idolatria; De pudicitia, 88; De resurrectione mortuorum, 48; De spectaculis, 12. 4 Cyprian of Carthage, Ad Quirinum, 3.1; De bono patientiae, 7; De lapsis, 6. 5 Lactantius, De ira Dei, 16.4; Divinae institutiones, 5.9.8; Epitome divinarum institutionum, 7.2, 59.1, 59.7. 6 Ambrose, De Abraham, 2.6.36, 2.10.69; De Cain et Abel, 1.10.45; De Iacob et vita beata, 2.7.33; De Ioseph, 3.18; De officiis, 1.11.36, 3.12.77, 3.14.90, 3.22.127; De Nabuthae, 9.43, 10.45; De Tobia, 3.9, 15.53; De viduis, 12.73; De virginibus, 3.6.28; Epistulae, 2.7.33, 8.56.19, 10.74.19; Exhortatio virginitatis, 5.30, 11.74; Explanatio psalmorum XII, 1.37.2, 40.18.3, 61.25.2; Expositio psalmi CXVIII, 8.9, 8.38, 10.46, 14.14, 17.25. 7 Gratian, Decretum, C. 22, q. 2, cc. 1–4. 8 Jerome, Ad Ephesios, 3; Ad Galatas, 3; Apologia adversus libros Rufini, 1.30, 2.7; Contra Iohannem, 44; De oboedientia; Dialogi contra Pelagianos, 2.13; Epistulae, 40.2, 55.2, 79.9, 84.3–4, 120.1, 151.1; Eusebii Caesariensis chronicon continuatio, Olymp. 282; In Abacuc, 2.3; In Amos, 2.5; In Danielem, 4.13; In Ezechielem, 5.16–7; In Hieremiam, 1, 2, 4; In Ioelem, 1; In Isaiam, 2.5.11, 15.55.3; In Malachiam, 3; In Matthaeum, 3, 4; In Michaeam, 1.2; In Zachariam, 1.5, 2.8; Liber tertius adversus libros Rufini, 8, 21, 26, 32, 43; Tractatus LIX in psalmos, 95, 146. 97

contemporary, Bishop Augustine of Hippo (354–430), references to perjury alone occur in an astonishing seventy-eight.9 Taken together, these sources evince that late antique Latin Christian intellectuals were taking a heightened interest in perjuries and false testimony, and that these offences were viewed with suspicion in many of the communities in which they occurred. Although the interests of the patristic authors were more abstract than those of our authors in the previous chapter, Jerome’s works attest what may be the earliest surviving case of a canonical- type penalty for perjury in the Latin church;10 while through the controversies of Augustine, I have encountered the record of an actual canonical condemnation for perjury.11

As we saw in the introduction to this dissertation, Christian opposition to perjury was far from inevitable. As the New Testament scholar John T. Fitzgerald has argued, discussion of perjury in the earliest Christian sources was often minimal, and differed little from comparable treatments in non-Christian Greek and Roman literature.12 Within the canonical New Testament, Jesus prohibited oath taking altogether, seemingly rendering Mosaic perjury legislation redundant,13 while the Pauline author of The First Letter to Timothy appeared to regard perjuries as a specifically Jewish (and henceforth non-Christian) problem.14 Perhaps most remarkably, both The Gospel of Matthew and The Gospel of Mark reported that Herod Antipater, tetrarch of Galilee (r. c.4 BCE–39 CE), had John the Baptist beheaded in fulfilment of an oath,15 an episode which

9 Augustine, Contra adversarium legis et prophetarum, 2; Contra Faustum, 19.3; Contra Iulianum opus imperfectum, 4–5; Contra mendacium ad Consentium, 9.22, 17.34, 18.37, 19.39, 21.41; De civitate Dei, 1.15, 3.2–3, 22.22; De Genesi ad litteram, 10.13; De haeresibus, 70; De mendacio, 15.28, 21.43; De VIII Dulcitii quaestionibus, 1.8; De sancta virginitate, 53.54; De sermone Domini in monte, 1.51–2; Enarrationes in psalmos, 58.1.14, 59.11, 70.1, 80.19– 21, 88.1.4, 109.17, 122.12, 129.5, 140.18; Enchiridion, 6; Epistulae, 47.2, 62.2, 63.4, 125–6, 157.4, 232.4, 237.3, 250.1; Epistulae nuper in lucem prolatae, 1.3, 18.1; Expositio epistulae ad Galatas, 49; In Iohannis epistulam ad Parthos, 3; In Iohannis evangelium, 6.12, 18.7, 18.11; Quaestionum in Heptateuchum, Gen. qq. 77, 139, Exod. q. 85, Lev. qq. 1, 2, 7–8, Num. q. 24, Deut. q. 12; Retractationes, 2.60; Sermones, 4, 32, 60, 77B, 88, 94A, 137, 180, 224, 260, 279, 307–8, 361; Speculum, 2, 7, 18, 25, 39. 10 Jerome, Eusebii Caesariensis chronicon continuatio, Olymp. 282. 11 Augustine, Contra mendacium ad Consentium, and Epistulae nuper in lucem prolatae, 11; cf. Toledo I (a. 397– 400), Exemplar definitivae sententiae translatae de gestis. 12 John T. Fitzgerald, ‘The Problem of Perjury in Greek Context: Prolegomena to an Exegesis of Matthew 5:33; 1 Timothy 1:10; and Didache 2.3’, in L. Michael White and O. Larry Yarbrough, eds, The Social World of the First Christians: Essays in Honor of Wayne A. Meeks (Minneapolis: Fortress Press, 1995), 156–77. 13 Matt. 5:33–7. 14 1 Tim. 1:10. 15 Matt. 14:9, Mark 6:26. 98

some theologians cited in defence of the opinion that perjuries were occasionally justifiable. In the late second and early third centuries CE, the Greek religious writer Origen of Alexandria commented that perjury was preferable in the case of Herod,16 and a number of later Latin authors followed suit. In the middle of the fourth century, Hilary, bishop of Poitiers, considered that false testimony and obstruction of justice were commendable in the case of fugitives and vulnerable populations.17 Toward the end of the fourth century, the monastic founder John Cassian implied that he himself had prudently committed perjury, which he characterized in his Conferences as an ‘empty fear’.18 All of these sources indicate that Christian opposition to perjury was not a foregone conclusion, and that the canon law and moral theology of perjury and false witness might have developed differently. Indeed, the earliest Christian source which we have examined in this dissertation in detail, the hagiographical Acts of Marcellus,19 features a Roman centurion who violated his military oath, the sacramentum militiae. Importantly, the perjuror is the hero of this story; at no point do we encounter the suggestion that Marcellus should not have committed perjury.20

At least in the Latin-speaking west, the question of perjury’s grave sinfulness seems to have been taken up at a relatively precise historical moment, in the 370s and 80s. Certain patristic theologians, notably Ambrose of Milan, continued to hold what they probably considered the traditional view: namely, that perjuries constituted minor sins (if they were sins at all), and that some deliberate acts of falsehood were justifiable.21 For example, in his treatise on clerical conduct, On Duties, composed at some point during the 380s, Bishop Ambrose argued that fulfilling both oaths and vows was frequently ‘contrary to duty’ (contra officium), citing the

16 Origen, In Matthaeum, 10.22. 17 Hilary of Poitiers, Tractatus super psalmos, 14.10, ed. Jean Doignon, CCSL 61 (Turnhout: Brepols, 1997), 87: ‘Est enim necessarium plerumque mendacium … cum aut percussori de latente mentimur aut testimonium pro periclitante frustramur.’ 18 John Cassian, Collationes, 17.9, ed. Michael Petschenig, CSEL 13 (2nd ed., Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2004), 470: ‘uanoque timore periurii’. 19 See ch. 2, ‘Criminalization’, pp. 56–60. 20 On the superiority of the ‘oaths’ sworn to Christ in baptism, see Dimitri Michaélidès, Sacramentum chez Tertullien (Paris: Études augustinnienes, 1970), 56ff. 21 Boniface Ramsey, ‘Two Traditions on Lying and Deception in the Ancient Church’, The Thomist: A Speculative Quarterly Review 49/4 (1985): 504–33. 99

example of Herod and John the Baptist.22 Moreover, Ambrose pointed out that the tetrarch had probably been drunk at the time of swearing (cf. Matt. 14:6, Mark 6:21–2), such that the agreement was nonbinding: ‘Indeed, perhaps it should not even be called perjury in such a case, for the promise was only an oath sworn by a drunkard in his cups.’23 By contrast, as early as c.375, the young Jerome was attaching exceptional importance to truth telling. According to the patristics scholar Boniface Ramsey, writers like Jerome and Augustine were cultivating what he called a ‘mystique of truth’, as much philosophical as religious, which perjuries and the other ‘crimes of falsehood’ offended.24 In Jerome’s earliest surviving writing, a hagiographical letter narrating the trial and execution of a woman falsely accused of adultery, the seriousness of lying in legal contexts is pronounced. According to Jerome, the woman affirmed on oath that she would rather die than commit false witness, by confessing to a crime which she had not committed:

She looked up to heaven with her eyes, which the torturer could not bind, and spoke by her mouth (with the tears streaming down): ‘You are witness, Lord Jesus, from whom nothing is hid, who art the searcher of hearts and reins, that I do not wish to deny [the charge], lest I perish, but that I do not wish to lie, lest I sin.25

Intriguingly, the magistrate who presided in this case, described by Jerome as in , may have been none other than Ambrose, shortly before his election as bishop.26

22 Ambrose, De officiis, 1.50.255, ed. Maurice Testard, CCSL 15 (Turnhout: Brepols, 2000), 94 (tr. Ivor J. Davidson, Ambrose, De Officiis: Edited with an Introduction, Translation, and Commentary, ii [Oxford: Oxford University Press, 2001], 266). For the dating of this text, see Davidson, ‘Date’, in idem, Ambrose, i, 4–5. 23 Ambrose, De officiis, 3.12.77, ed. Testard, CCSL 15, p. 182: ‘Si tamen periurium posset dici, quod ebrius inter uina iurauerat’ (tr. Davidson, Ambrose, ii, 402). 24 Ramsey, ‘Two Traditions’, 511. 25 Jerome, Epistulae, 1.3, ed. Isidor Hilberg, CSEL 54 (2nd ed., Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1996), 3: ‘[O]culis, quos tantum tortor alligare non poterat, suspexit ad caelum et uolutis per ora lacrimis: “tu,” inquit, “testis, Domine Iesu, cui occultum nihil est, qui es scrutator renis et cordis, non ideo me negare uelle, ne peream, sed ideo mentiri nolle, ne peccem.”’ On the general date and context, see J. N. D. Kelly, Jerome: His Life, Writings, and Controversies (London: Duckworth, 1975), 39–40. 26 Jerome, Epistulae, 1.3. For the sources on Ambrose’s pre-episcopal career, see ‘Ambrosius’, 3, in A. H. M. Jones, J. R. Martindale, and J. Morris, The Prosopography of the Later Roman Empire, i (Cambridge: Cambridge University Press, 1971), 52. Notably, Ambrose’s biographer, Paulinus of Milan, apparently felt compelled to defend his bishop against such allegations. He insisted that the kind of torture which Jerome had described was ‘contrary to [Ambrose’s] 100

Jerome’s letter illustrates that fourth-century Christian intellectuals were willing to aggressively criticize the judicial activities of secular and even ecclesiastical authorities. As Jill Harries has maintained, Christians were vigorous participants in the ‘culture of criticism’, criticizing the false accusations, false documents, and false judgments of imperial officials like the consularis of Liguria.27 Although Roman emperors contributed to this culture in unique ways, promulgating legislation which criminalized a wider range of legal falsehoods,28 theological writers penned open letters, sermons and homilies, and biblical commentaries which echoed many of the same themes. Furthermore, like their secular legal counterparts, Christian authors did not confine their criticism to the established crimes of classical Roman law, such as forgery and calumny, but extended this criticism to perjury and false witness too.29 According to the fifth- century priest of , an exceptionally ferocious critic of secular legal culture, all of these offences had a class-based component. In his polemical treatise The Governance of God, addressed to a Gallican audience in the years following the Visigothic settlement in southern Gaul,30 Salvian argued that honestior-rank citizens could be even more susceptible to perjury and false witness than humiliores were.31 Honestiores included imperial administrators and the members of town councils, whom I have argued were the special targets of perjury prosecutions, and this class came in for the priest’s especial criticism:

Many think that all these evils and depravities in vice, which I have already mentioned, must refer to slaves or the most degraded of men, and that the freeborn are not besmirched by the stain of such disgraceful acts. But what else is the life of all men engaged in business but fraud and perjury (periurium)? What is the life of

custom’, contra consuetudinem suam (Paulinus of Milan, Vita sancti Ambrosii, 7.1, ed. A. A. R. Bastiaensen, Vite dei santi, iii: Vita di Cipriano, Vita di Ambrogio, Vita di Agostino [Milan: Fondazione Lorenzo Valla, 1975], 62). 27 Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 5, 97, 119, 152, 171. 28 See ch. 2, ‘Criminalization’, pp. 47–8 n. 49, 61 n. 138, 64–5 n. 156, 91–2 n. 338. 29 Harries, Law and Empire, 96. 30 Georges Lagarrigue, ‘Introduction’, in Lagarrigue, ed., Salvien de : Oeuvres, SC 176 (Paris: Cerf, 1971), 11–15. 31 For the distinction between honestiores and humiliores, see ch. 2, ‘Criminalization’, pp. 42, 77, 79–81, 88, 95. 101

curiales but injustice? What is the life of government officials but slander (calumnia)?32

Like several of the authors whom we saw in the previous chapter, Salvian assumed that oath violations were justiciable. He repeatedly grouped perjuries with classical crimes like forgery,33 homicide,34 and adultery;35 by contrast to the Gallo-Romans, the more recent arrivals considered (in Salvian’s view) that ‘perjury [was] a kind of word and not a crime’.36

Yet just as our analysis of Roman law focused on the concept of crime, our analysis of patristic literature will focus on the concept of sin, which constituted the principal fear of Jerome’s anonymous martyr falsely accused of adultery.37 For Salvian, Jerome, and others like them, perjuries and false testimony were evidently criminal offences, yet the primary concern of these authors lay with the offensiveness of such crimes to God. According to the Dictionnaire de spiritualité ascétique et mystique, ‘sin’ was primarily understood in the patristic era as a kind of rupture of the human relationship with God, an act for which perjury (conceived as infidelity) could be considered as a metaphor.38 Nevertheless, by contrast with ancient Roman conceptions of nefas, which ostensibly precluded judicial punishments,39 Christian notions of sin had always had a strong social and juridical component. Already in the Greek New Testament, two of the most common expressions for ‘sin’, ὀφείλεια (indebtedness) and ἀνομία (literally, ‘lawlessness’)

32 Salvian, De gubernatione Dei, 3.10, ed. Georges Lagarrigue, Salvien de Marseille: Oeuvres, SC 220 (Paris: Cerf, 1975), 224: ‘Sed uidelicet cuncta haec mala et omnem uitiorum probrositatem, quam supra dixi, ad seruos fortasse quidam aut abiectissimos quosque homines referendam putant, ceterum nomen ingenuum hac flagitiorum labe non pollui. Quid autem aliud est cunctorum negotiantium uita quam fraus atque periurium? quid aliud curialium quam iniquitas? quid aliud officialium quam calumnia?’ (tr. Jeremiah F. O’Sullivan, The Writings of Salvian, The Presbyter, The Fathers of the Church 3 [Washington, DC: The Catholic University of America Press, 1947], 85). 33 Salvian, De gubernatione, 4.9, 7.15. 34 Salvian, De gubernatione, 4.9. 35 Salvian, De gubernatione, 4.9. 36 Salvian, De gubernatione, 4.14, ed. Lagarrigue, Salvien, 288: ‘Si periuret Francus, quid noui faciet, qui periurium ipsum sermonis genus putat esse non criminis?’ (tr. O’Sullivan, Writings, 115). 37 See p. 100 n. 25 above: ‘[S]ed ideo mentiri nolle, ne peccem.’ 38 ‘Péché’, 1, in Marcel Viller et al., Dictionnaire de spiritualité ascétique et mystique: Doctrine et histoire, xii (Paris: Beauchesne, 1984), col. 790; cf. ch. 1, ‘Introduction’, p. 25 n. 150. 39 See ch. 1, ‘Introduction’, pp. 21–2. 102

emphasized the communal and judicial aspects of sin. Indeed, the very text of the Lord’s Prayer compared human debts with sins against God, with The Gospel of Matthew having laid particular stress on this analogy: ‘[F]orgive us our debts, as we also forgive our debtors.’40 At a theological level, late Jewish texts argued that sins against God could offer no real injury to God, since God was omnipotent and transcendent; rather, sins always injured human beings, chiefly the sinner him- or herself and those in relationship to him or her. In The Book of Job, for example, an observer of the dialogue between Job and his companions asks, ‘If thou sin, what shalt thou hurt him? and if thy iniquities be multiplied, what shalt thou do against him? … Thy wickedness may hurt a man that is like to thee: and thy justice may help the son of man.’41 In the early fifth century, Jerome made a similar point, commenting on The Book of Jeremiah: ‘[W]hatever we do, we do not harm God, who cannot be harmed. Instead, we make preparations for our own destruction.’42 Such usages distinguished Christian sin from classical nefas, and paved the way for formalized communal responses to perjury and false witness.

In an influential 2000 article, ‘The Decline of the Empire of God’, the late antique historian Peter Brown argued that sin was one of the most enduringly popular subjects of Christian literature. Invoking Augustine’s famous statement that Christians who enjoyed some sexual relations, experienced anger, and defended their property in ecclesiastical court could still be saved,43 Brown held that such daily or quotidian sins came to occupy a newly prominent place in Christian preaching and moral discipline. From Ambrose’s perspective, and from the perspective of many

40 Matt. 6:12: καὶ ἄφες ἡμῖν τὰ ὀφειλήματα ἡμῶν, ὡς καὶ ἡμεῖς ἀφήκαμεν τοῖς ὀφειλέταις ἡμῶν; ‘et dimitte nobis debita nostra sicut et nos dimisimus debitoribus nostris’ (Vulgate). For discussion see Stanislas Lyonnet, Sin, Redemption, and Sacrifice: A Biblical and Patristic Study, Analecta Biblica 48 (Rome: The Biblical Institute Press, 1970), 32–4. 41 Job 35:6–8: εἰ ἥμαρτες τί πράξεις εἰ δὲ καὶ πολλὰ ἠνόμησας τί δύνασαι ποιῆσαι … ἀνδρὶ τῷ ὁμοίῳ σου ἡ ἀσέβειά σου καὶ υἱῷ ἀνθρώπου ἡ δικαιοσύνη σου; ‘si peccaveris quod ei nocebis et si multiplicatae fuerint iniquitates tuae quid facies contra eum … homini qui similis tui est nocebit impietas tua et filium hominis adiuvabit iustitia tua’ (Vulgate). See Lyonnet, Sin, 15. 42 Jerome, In Hieremiam, 2.38.3, ed. Sigofred Reiter, CCSL 74 (Turnhout: Brepols, 1960), 80: ‘Quidquid igitur facimus, non Deum laedimus, qui laedi numquam potest, sed nobis interitum praeparamus’ (tr. Michael Graves, Jerome: Commentary on Jeremiah [Downers Grove: IVP Academic, 2011], 52). 43 Peter Brown, ‘The Decline of the Empire of God: Amnesty, Penance, and the Afterlife from Late Antiquity to the Middle Ages’, in Caroline Walker Bynum and Paul Freedman, eds, Last Things: Death and the Apocalypse in the Middle Ages (Philadelphia: The University of Pennsylvania Press, 2000), 41–2, citing Augustine, Contra II epistulas Pelagianorum, 3.5.14. 103

other Christians as well, perjuries might fall within that category;44 yet whatever the gravity of perjury, Christian clerics and laypeople were certainly swearing oaths during the fourth and fifth centuries.45 As with other sins and potentially sinful behaviour, all this oath taking and occasional perjury called for means of purgation, by which the individual believer could be cleansed of his or her sin, reintegrated in the Christian community, and assured of his or her salvation. According to Brown, patristic authors from Augustine to Gregory the Great emphasized this purification of souls, which extended even into the afterlife. In a particularly memorable example from Gregory’s Dialogues, a deceased deacon, Paschasius, is represented as suffering for the administrative or political sin of supporting a schismatic .46 Although during his lifetime Paschasius had been ‘a lover of the poor and a despiser of the self’, generous in almsgiving, the deacon was still ‘assigned to a place of punishment’ (in this case, a scalding bath).47 As more and more imperial denizens entered the Christian church, ecclesiastical authorities and writers made ‘efforts to cover all known life’, including legal life, ‘in the fine web of a Christian notion of sin and forgiveness’:

We are dealing here with … what I would call the ‘peccatization’ of the world: not with a ‘culpabilization’ in the sense of the fostering of a greater sense of guilt in Christian circles, but with something more precise and a good deal more significant – the definitive reduction of all experience, of history, politics, and the social order quite as much as of the destiny of individual souls, to two universal explanatory principles, sin and repentance.48

44 Cf. pp. 28 n. 171, 32 n. 199, 100 n. 23 above. 45 For examples see pp. 112 n. 97, 119 n. 139, 119–20 n. 43, 140–1 nn. 263–8, 143–4 n. 280, 149 n. 305 below. See also Kevin Uhalde, ‘Christian Oaths: A Case Study in Practicality over Doctrine’, in idem, Expectations of Justice in the Age of Augustine (Philadelphia: The University of Pennsylvania Press, 2007), 77–104. 46 Gregory the Great, Dialogi, 4.42–3. 47 Gregory the Great, Dialogi, 4.42.1–3, ed. Adalbert de Vogüé, Grégoire le Grand: Dialogues, SC 265 (Paris: Cerf, 1980), 150–2: ‘[Q]uod Pascasius huius apostolicae sedis diaconus … mirae sanctitatis uir fuerit, elemosinarum maxime operibus uacans, cultor pauperum et contemptor sui. … [I]lle respondit: “Pro nulla alia causa in hoc poenali loco deputatus sum, nisi quia in parte Laurentii … sensi.”’ 48 Brown, ‘Decline’, 58. 104

This ‘peccatization of the world’ was partially expressed through the development of various and graduated sanctions for different offences, perjury and false witness amongst them. Perhaps significantly, one of the oldest surviving canonical texts to address perjuries explicitly, The Apostolic Canons, appeared in c.380, at the centre of the period which is the focus of this chapter.49 According to a recent study by the eastern canonist Aram Mardirossian, The Apostolic Canons were compiled by the author of the Christian church’s oldest canonical collection, The Collection of Antioch, which accorded primacy of place to sin and its treatment.50 In the canons of the earliest council to be included in this collection, the synod of Ancyra (a. 314), the materials included dealt almost exclusively with disciplinary matters. Idolatry, clerical marriage, fornication, adultery, abortion, bestiality, murder, and magic were all addressed,51 and different remedies were prescribed for these various ailments. Murderers who had committed their crimes intentionally were enjoined to abstain from communion until the end of their lives,52 while those who had committed the same offence involuntarily and those who had consulted magicians were enjoined to abstain for a comparatively brief period of five years.53 Penitential practices multiplied: many sinners were supposed to kneel while in church;54 others were supposed to pray alongside ‘the possessed’.55 In Mardirossian’s words, such canonical materials amounted to ‘veritable little penitential codes’, guiding the potential actions of bishops, local clergy, and laypeople.56 Importantly, The Apostolic Canons recommended that bishops, priests, and convicted of sexual immorality, perjury, or theft, be deposed from their offices (though not suspended from communion, as doing so would have amounted a kind of double jeopardy). Lesser clergy were to

49 See ch. 1, ‘Introduction’, pp. 1–2, 8–9. An earlier text, Elvira (a. 305–6?), c. 74, condemned various kinds of false testimony (graduated according to Roman notions of capital and non-capital cases: cf. pp. 88–9 above), but not ‘perjuries’ explicitly. For the date of The Apostolic Canons, see Aram Mardirossian, La collection canonique d’Antioche: Droit et hérésie à travers le premier recueil de législation ecclésiastique (IVe siècle), Monographies 34 (Paris: Collège de France, 2010), 63–72. 50 Mardirossian, La collection, 75. 51 Ancyra (a. 314), cc. 1–9, 12 (idolatry); 10–11, 16–17, 19–21, 25 (various sexual offences); 22–3 (murder); 24 (magic). 52 Ancyra (a. 314), c. 22. 53 Ancyra (a. 314), cc. 23–4. 54 Ancyra (a. 314), cc. 4–9, 16, 22, 24. 55 Ancyra (a. 314), c. 17. 56 Mardirossian, La collection, 75. 105

be treated similarly, while lay perjurors were apparently suspended from communion for an indefinite period of time.57 Eventually, this canon was translated into Latin and circulated in the west, where it is featured in the only known surviving work of Latin Arian theology, produced prior to c.500.58 More famously, the first fifty of these Apostolic Canons were included in one of the major editions of the canon law corpus of the orthodox Christian empire, brought forth by Dionysius Exiguus in c.500.59

Thus the growth of the church’s canon law and penitential practices broadly coincided with the culture of criticism, providing an additional stimulus to Christian discussion of perjury and false witness. Though John Fitzgerald’s analysis of Christian perjuries dealt mainly with the Greek-speaking east,60 the focus of this chapter will remain on the west, where Jerome and Augustine made unique contributions to the Latin church’s theology and discipline of perjury and false witness. As we shall see, the grave sinfulness of perjury was not an abstract conception to these thinkers, but reflected controversies and disputes which they experienced over the course of their careers. In the case of Jerome, the biblical scholar most likely witnessed an expulsion of perjured clergy from their churches in Rome, in c.357–65,61 and was evidently accused of committing perjury himself, on the occasion of his departure from Rome in 385.62 In Augustine’s case, the bishop of Hippo was obliged to deal with cases of perjury and false witness repeatedly, intervening in two of them with a dossier of letters partially addressed to one of the alleged perjurors, in c.411,63 and an ethical treatise opposed to all lying, Against Lying to Consentius, in

57 Canones Apostolorum, 25, ed. Marcel Metzger, Les constitutions apostoliques, SC 336 (Paris: Cerf, 1987), 280: ᾿Επίσκοπος ἢ πρεσβύτερος ἢ διάκονος ὁ πορνείᾳ ἢ ἐπιορκίᾳ ἢ κλοπῇ ἁλοὺς καθαιρείσθω, καί μὴ ἀφοριζέσθω· λέγει γὰρ ἡ γραφή· « Οὐκ ἐκδικήσει Κύριος δὶς ἐπὶ τὸ αὐτό » [Nahum 1:9]. ῾Ωσαύτως καί οἱ λοιποὶ κληρικοί· 58 Roger Gryson, Le recueil arien de Vérone (Ms. LI de la Bibliothèque capitulaire et feuillets inédits de la Collection Giustiniani Recanati): Étude codicologique et paléographique, Instrumenta Patristica 13 (The Hague: Nijhoff, 1982), 20–1 (on The Apostolic Canons), 60–6 (for dating). 59 Canones Apostolorum, 25–6, ed. C. H. Turner, Ecclesiae Occidentalis Monumenta Iuris Antiquissima: Canonum et Conciliorum Graecorum Interpretationes Latinae, i (Oxford: The Clarendon Press, 1899), 18: ‘Episcopus aut presbiter aut diaconus qui in fornicatione aut periurio aut furto captus est deponatur, non tamen communione priuetur, dicit enim scriptura NON VINDICABIT DOMINVS BIS IN IDIPSVM. Similiter et reliqui clerici.’ 60 See pp. 5–6 n. 25, 98 n. 12 above. 61 Jerome, Eusebii Caesariensis chronicon continuatio, Olymp. 282. 62 Jerome, Liber tertius adversus libros Rufini, 21. 63 Augustine, Epistulae, 125–6. 106

421.64 These experiences helped to shape the ’ definitions of perjury, which exhibit a degree of conceptualization absent from the legal sources we have examined and which highlight the shifting attitudes towards perjury and false witness in the late antique and early medieval worlds.65 In the decades following perjury’s criminalization in late Roman law, perjury also came to be ‘peccatized’, treated as a grave sin and canonical offence, in the patristic literature of the Latin Christian church. Transformed into a threatening rhetorical tool and even a test of Christian orthodoxy,66 the ‘teaching on perjury’ was now regarded as an authentically Christian problem, demanding responses from ecclesiastical authorities and writers.

Let us take each of our two personalities in turn.

7 Perjury and False Witness in the Life and Thought of Jerome of Stridon

Perhaps to an even greater extent than with Augustine, the peccatization of perjury is evident in the biography of Jerome of Stridon (c.347–420). Thanks to an abundance of personal correspondence, as well as to the prefaces which he attached to the biblical translations and commentaries bearing his name, the main outlines of Jerome’s career are known.67 Of provincial, Dalmatian or Pannonian origin,68 the future monk was nonetheless educated in Rome, where he probably spent much of the and 60s.69 He first adopted an ascetic lifestyle while living in

64 Augustine, Contra mendacium ad Consentium. 65 Indeed, no secular Roman legal text of which I am aware attempted to define perjury. While many of the sources surveyed in the last chapter characterized perjury in a variety of ways (e.g., perjury on the emperor, abandonment of oaths by soldiers), the closest that any of these texts came to a conceptual definition was the broad statement on falsum from The Opinions of Paul: ‘Falsum est, quidquid in ueritate non est, sed pro uero adseueratur’ (PS 5.25.3). See ch. 2, ‘Criminalization’, p. 89 n. 328. 66 Rufinus of Aquileia, Apologia contra Hieronymum, 2.3. 67 For the chronology of Jerome’s career I generally follow Kelly, Jerome, but note the disputed question of Jerome’s birth at pp. 115–16 below, and re-datings of individual texts throughout. 68 Kelly, Jerome, 1–9. 69 Kelly, Jerome, 10–24, and Alan D. Booth, ‘The Date of Jerome’s Birth’, Phoenix 33/4 (1979): 346–53. 107

Aquileia and its environs, during the early 370s,70 and was ordained to the priesthood on his first trip to the eastern Mediterranean, during the mid-to-late 370s.71 Returning to Rome after a brief sojourn in Constantinople,72 Jerome reportedly worked as a secretary in the developing papal notariate of Pope Damasus I (r. 366–84), who, according to a later polemical treatise, ‘assigned [Jerome] the task of dictating the ecclesiastical letters’.73 Taking his permanent leave of the western capital in 385, Jerome eventually made his way to Bethlehem, where he established the monastic community which furnished the setting for the majority of his intellectual labours, until shortly before his death in 420.74 Intellectually, Jerome drew on numerous sources, yet his deepest engagement within the field of Christian literature was probably the works of Origen, who as we have seen gave limited licence to perjuries and other falsehoods.75 Jerome began translating Origen into Latin as early as his visit to Constantinople, beginning with Origen’s homilies on The Books of Jeremiah and Ezekiel.76 In practical matters, Jerome was also a party to at least two judicial disputes over the course of his lifetime, one of which we will examine in detail below. In the summer of 385, Jerome was apparently tried and convicted on uncertain charges, and was most likely banished from the city of Rome.77 In 394–7, following a dispute over his monastery, Jerome was suspended from communion by the bishop of Jerusalem.78

70 Kelly, Jerome, 30–5. 71 Kelly, Jerome, 36–45. 72 Kelly, Jerome, 68–79. 73 Jerome, Apologia adversus libros Rufini, 2.20, ed. P. Lardet, CCSL 79 (Turnhout: Brepols, 1982), 56: ‘cui ille ecclesiasticas epistulas dictandas credidit’ (tr. John N. Hritzu, Saint Jerome: Dogmatic and Polemical Works, The Fathers of the Church 53 [Washington, DC: The Catholic University of America Press, 1965], 138). 74 Kelly, Jerome, 104ff. 75 See pp. 27–8, 99 above. 76 For Origen’s influence on Jerome, see Pierre Nautin, Origène: Sa vie et son oeuvre (Paris: Beauchesne, 1977), 214– 15, 227–32, 280–93, 326–32, 373. See also Margaret A. Schatkin, ‘The Influence of Origen upon St. Jerome’s Commentary on ’, Vigiliae Christianae 24/1 (1970): 49–58; C. P. Hammond Bammel, ‘Philocalia, IX; Jerome, Epistle 121; and Origen’s Exposition of Romans VII’, The Journal of Theological Studies 32/1 (1981): 50– 81; Ronald E. Heine, ‘Recovering Origen’s Commentary on Ephesians from Jerome’, The Journal of Theological Studies 51/2 (2000): 478–514; and Douglas Kelly, ‘Origen, Plato, and Conscience (Synderesis) in Jerome’s Ezekiel Commentary’, Traditio 57/1 (2002): 67–83. 77 Jerome, Epistulae, 45, and Liber tertius adversus libros Rufini, 21. 78 Jerome, Contra Iohannem. For discussion of these controversies, see Andrew Cain, ‘Expulsion from Rome’, in idem, The Letters of Jerome: Asceticism, Biblical Exegesis, and the Construction of Christian Authority in Late Antiquity (Oxford: Oxford University Press, 2009), 99–128, and Pierre Nautin, ‘L’excommunication de saint Jérôme’, Annuaire de l’École pratique des hautes études, Ve section – Sciences religieuses 80–1 (1971–3): 7–37, respectively. 108

As the outlines of this career suggest, Jerome faced a number of practical difficulties which conditioned his work as a biblical scholar and theologian. Some were technical in nature: according to his translation of the Greek Chronicle of of Caesarea, the work had been dictated rapidly;79 meanwhile, other works circulated falsely under his name.80 Remarkably, the discoverer of one of these forgeries, a monastic acquaintance and intellectual ally of Jerome’s in Italy, was himself accused of stealing and falsifying the documents belonging to a rival theologian – furnishing the grounds (in Jerome’s view) for a criminal charge of falsum.81 In addition to these problems with scribal error and fraud, Jerome faced the fundamental difficulty of raising sufficient funds to support both his scholarly activities and his monastery. Imperial legislation prohibited ecclesiastici and ascetics like Jerome from entering the homes of widows and wards, presumably in order to prevent any legacy hunting,82 and legacy hunting may well have been the charge on which Jerome was tried in the summer of 385. Intriguingly, Jerome’s closest female friend in Rome, Paula, was a widow, and Jerome publicly denied ever accepting her gifts. According to a letter sent to a mutual acquaintance, the monk insisted that controversy had arisen only after Paula planned to depart with him for Jerusalem.83 Despite such protestations, Jerome criticized the practice of legacy hunting in others, insinuating that many of his clerical colleagues had obtained their own wealth through ‘wickedness, perjury, and falsehood’.84 Importantly, the trial which resulted in Jerome’s departure from Rome had concluded with an oath; in the polemical treatise

79 ‘[E]t notario, ut scitis, uelocissime dictauerim’ (Jerome, Eusebii Caesariensis chronicon continuatio, praef., ed. Benoît Jeanjean and Bertrand Lançon, Saint Jérôme, Chronique: Continuation de la Chronique d’Eusèbe, années 326–78 [Rennes: Presses Universitaires de Rennes, 2004], 53). 80 Jerome, Apologia, 2.24. 81 Jerome, Liber tertius adversus libros Rufini, 5, ed. P. Lardet, CCSL 79 (Turnhout: Brepols, 1982), 77: ‘[T]unc ille crimine tenebitur falsitatis.’ 82 CTh 16.2.20 (a. 370). 83 Jerome, Epistulae, 45.2. For the possibility that legacy hunting was not the charge, see Cain, Letters, 114–17, and p. 120 n. 146 below. 84 Jerome, Epistulae, 40.2, ed. Hilberg, CSEL 54, p. 310: ‘scelere, periurio, falsitate’. For an example of perjury in the production of testaments and wills, see ch. 2, ‘Criminalization’, p. 70 n. 188. 109

we mentioned earlier, there is a report that the trial was recorded in writing, and that Jerome swore to certain unspecified promises.85

Each of these circumstances – scribal falsehood, legacy hunting, and the dangers of oath taking – was reflected in Jerome’s thinking about perjury and false witness. Sometimes this influence was direct, as when Jerome and his interlocutors interpreted their experiences in the light of biblical precedents. According to Rufinus of Aquileia, Jerome’s adversary in the polemical treatise referred to above, the Italian monk guilty of stealing and forging his documents was comparable with the infamous queen Jezebel, who suborned false witnesses against the owner of a vineyard which her husband seized.86 At other times, the influence of external circumstances was indirect, and must be inferred from context. In Jerome’s Commentary on the Book of Jeremiah, for example, the monk attempted to relate some of his biblical interpretations to contemporary events. At the verse, ‘Because the land is full of adulterers, because the land hath mourned by reason of cursing’ (Jer. 23:10), Jerome began by pointing out a discrepancy between the Greek and Hebrew texts which were available to him. In place of the word ‘cursing’, the version of the Septuagint that the biblical scholar was using substituted the word ‘oaths’ (ὅρκου),87 and Jerome reproduced both readings in his commentary. Yet the monk, who as a scholar generally preferred the Hebrew readings for exegetical purposes,88 here decided to emphasize the variant, Greek version, ‘oaths’:

[The prophet Jeremiah] gives the reasons why the produce of the land has been rendered barren: because of adultery and ‘cursing’ or unnecessary ‘oaths’ – or rather, perjuries. Whatever you understand literally in connection with the land of Judea, refer it to the congregation of the believers: There is a barrenness of virtue

85 Jerome, Liber tertius, 21, ed. Lardet, CCSL 79, p. 93: ‘Numquid et ego non possum enarrare … quid de te in praesenti iudicatum sit, quid postea scriptum, quid iuraueris.’ Notably, Jerome’s dispute with the bishop of Jerusalem likewise involved an oath: Jerome, Contra Iohannem, 39. 86 See p. 109 n. 81 above, and Rufinus, Apologia contra Hieronymum, 1.19, ed. Manlio Simonetti, CCSL 20 (Turnhout: Brepols, 1961), 53: ‘Crede mihi quod huius sceleris [falsarii] nequitia etiam uerum fuisset exemplar, nisi Zezabel tibi illa occurreret.’ Cf. 1 (3) Kings 21:1–16. 87 Frederick Field, ed., Origenes Hexaplorum quae supersunt, ii (Oxford: The Clarendon Press, 1867), 632 n. 28. 88 See e.g. Dennis Brown, ‘Jerome and the Hebraica Veritas’, in idem, Vir Trilinguis: A Study in the Biblical Exegesis of Saint Jerome (Kampen: Kok Pharos, 1992), 55–86. 110

and divine favor in the churches because of adultery and because of lying or perjury.89

Lest the reader believe that no specific controversies were intended, Jerome added a clarification. Just five verses farther on, at the verse ‘Behold, I will fill [false prophets] with wormwood, and give them gall to drink’ (Jer. 23:15), the monk proposed: ‘Let us use this testimony against those who send letters into all the world filled with lies, deception, and perjury.’90 By referring to these ‘letters … filled with lies, deception, and perjury’, and by choosing to emphasize the Greek reading of the text rather than the Hebrew, Jerome indicated to his audience that perjury was a serious problem afflicting the contemporary church.91

Such digressions in Jerome’s biblical commentaries did not amount to mere moralizing, but reflected the Christian author’s fourth-century environment. Indeed, one underappreciated aspect of the monk’s biography is that he grew up in the shadow of a major perjury dispute, the first such dispute that I have been able to identify for the western church. In c.357–65, roughly corresponding to the period of Jerome’s Roman education,92 a large number of Christian clerics were reportedly expelled from their Roman churches on account of perjury. This report is preserved in two sources, the first of which is an Italian canonical collection of the mid-sixth century, the Collectio Avellana, which was probably compiled from the papal or another Roman archive.93 According to the first document in this collection, a letter apparently written in the early years of Damasus’ pontificate,94 a dispute between rival groups of more rigorous and more

89 Jerome, In Hieremiam, 4.49.2, ed. Reiter, CCSL 74, pp. 218–19: ‘Redditque causas, quod propter adulteria et maledicta siue superfluum iuramentum, immo periuria, frugum sterilitas consecuta sit. Quicquid de terra Iudaea iuxta litteram intellegis, refer ad congregationem credentium, quoniam propter adulteria et mendacia siue periuria uirtutum et donationum dei sterilitas in ecclesiis sit’ (tr. Graves, Jerome, 140). 90 Jerome, In Hieremiam, 4.53.2, ed. Reiter, CCSL 74, p. 221: ‘Vtamur hoc testimonio aduersum eos, qui epistulas plenas mendaciorum et fraudulentiae atque periurii in orbem dirigunt’ (tr. Graves, Jerome, 142). 91 For the letters in question, see pp. 116–21 below. 92 See p. 107 n. 69 above. 93 Lotte Kéry, Canonical Collections of the Early Middle Ages (c.400–1150): A Bibliographical Guide to the Manuscripts and Literature (Washington, DC: The Catholic University of America Press, 1999), 37–8. 94 See pp. 113–16 below. 111

moderate Nicene clergy came to turn on a question of perjury. In 355, Damasus’ immediate predecessor, Pope Liberius (r. 352–66), was forced into exile by the semi-Arian emperor, Constantius II (r. 337–61).95 In the language of the author of our letter, a Nicene rigourist, the ‘entire clergy’ of Rome swore an oath ‘in the presence of the Roman people’, not to accept any other pope than Liberius.96 Nevertheless, when an ‘Arian’ papal candidate more favourable to Constantius appeared, many clerics violated their oaths:

Yet against fas – what was not at all fitting – the clergy received the archdeacon Felix, ordained as bishop in place of Liberius, with the supreme wickedness of perjury. … In the third year [of his exile, i.e. c.357] Liberius returned, and the Roman people ran out to meet him with joy. Having been censured by the Senate or people, Felix was expelled from the city; and after a little time, at the instigation of the clergy who had committed perjury, he invaded the city and presumed to set himself up in the Basilica of Julius, across the Tiber. … After eight years, in the consulship of Valentinian and Valens [365], on the tenth day of the Kalends of December, Felix died. Liberius had mercy on the clerics who had committed perjury, and received them in their own places.97

Thus, for a period of approximately eight years, c.357–65, a substantial number of Roman clerics were considered as disciplined for perjury. Felix himself was remembered as having been formally ‘censured’ (notatus) and banished by the Senate, events which recall the consequences and penalties for perjury in both classical and post-classical Roman law.98 Yet the treatment of the

95 On Constantius’s ecclesiastical policies, see e.g. Walt Stevenson, ‘Exiling Bishops: The Policy of Constantius II’, Dumbarton Oaks Papers 68 (2014): 7–27. 96 Collectio Avellana, ‘Quae gesta sunt inter Liberium et Felicem episcopos’, 2, ed. Otto Günther, CSEL 35 (Vienna: Tempsky, 1895), 1: ‘Sed eo die, quo Liberius ad exilium proficiscebatur, clerus omnis … omnes pariter praesente populo Romano sub iureiurando firmarunt se uiuente Liberio pontificem alterum nullatenus habituros.’ 97 Note the persistence of the rhetoric of fas, even in altered circumstances; cf. ch. 1, ‘Introduction’, pp. 21–2. Collectio Avellana, ‘Quae gesta’, 2–4, ed. Günther, CSEL 35, pp. 1–2: ‘Sed clerus contra fas, quod minime decebat, cum summo periurii scelere Felicem archidiaconum ordinatum in loco Liberii episcopum susceperunt. … Tertio anno redit Liberius, cui obuiam cum gaudio populus Romanus exiuit. Felix notatus a senatu uel populo de urbe propellitur. Et post parum temporis impulsu clericorum, qui peiurauerant, inrumpit in urbem et stationem in Iuli trans Tiberim dare praesumit. … Post annos octo Ualentiniano et Ualente consulibus X Kalendarum Decembrium die defunctus est Felix. Liberius misericordiam fecit in clericos, qui peiurauerant, eosque in locis propriis suscepit.’ 98 See ch. 1, ‘Introduction’, pp. 17–18 (infamia) and ch. 2, ‘Criminalization’, pp. 77–8 (banishment). 112

lesser clergy allied to Felix is more revealing, for the account preserved in the Collectio Avellana provides evidence of the church’s internal procedures. According to our author, ‘Liberius had mercy on the clerics who had committed perjury’ when Felix finally died, ‘and received them in their own places’: in locis propriis suscepit.99 This statement implies that Liberius and his supporters, including the author of the document, regarded the perjured clerics as removed from their own ‘places’ during the period between Liberius’s return and Felix’s death. If we interpret locis as ‘offices’, then what we may be witnessing is one of the earliest possible attestations of a canonical-type penalty for perjury, deposition from clerical office: the very sanction recommended in The Apostolic Canons in c.380.100 Indeed, this interpretation is favoured by a number of considerations, both internal and external to the document. As the letter in the Collectio Avellana admits, the geographical component in the perjured clerics’ banishment was not particularly strong. Liberius and his supporters succeeded in establishing themselves in the Basilica of Julius ‘across the Tiber’, probably Santa Maria in Trastevere,101 and many of the perjured clerics remained present in Rome, such that Liberius could receive them back.102 Furthermore, locus could be used as a metaphor for office in late antique legal Latin, as can be seen in the canonical literature of the African church from the following generation.103 Remarkably, in the medieval recollection of this event by The Book of the , the Felician clerics were remembered as having been banned from certain churches, and from the baths (balnea) – suggesting a combination of ecclesiastical sanctions and social ostracism.104

To be sure, the documents compiled in the Collectio Avellana are a problematic source. The compilation itself dates only to the middle of the sixth century, some two hundred years after

99 See p. 112 n. 97 above. 100 See p. 106 n. 57 above: καθαιρείσθω. 101 Harry O. Maier, ‘The Topography of Heresy and Dissent in Late Fourth-Century Rome’, Historia: Zeitschrift für alte Geschichte 44/2 (1995): 244. 102 When Liberius died the following year, ‘the perjurors’ gathered together at San Lorenzo in Lucina: ‘periuri uero in Lucinis … expostulant’ (Collectio Avellana, ‘Quae gesta’, 5, ed. Günther, CSEL 35, p. 2). 103 Cf. Breviarium Hipponense, ‘Brevis statutorum’, 9, ed. C. Munier, CCSL 149 (Turnhout: Brepols, 1974), 36: ‘Sane quisquis episcopus seu clericorum, cum ... relicto ecclesiastico iudicio publicis iudiciis purgari uoluerit … locum suum amittat.’ See also Carthage (a. 390), c. 8, and Canones in causa Apiarii, 11, 15. 104 Liber pontificalis, 37.6, ed. L. Duchesne, Le Liber pontificalis: Texte, introduction et commentaire, i (rev. 2nd ed., Paris: Boccard, 1955), 208. 113

the events in question, and the best manuscript dates only to the eleventh or twelfth;105 indeed, one recent historian has cast doubt on the authenticity of our letter, suggesting that all or part of it may have been forged.106 What is less well known, however, is that the core of these events is also attested by Jerome, seemingly independently. In c.379–80, while he was still living in Constantinople,107 Jerome published a Latin translation and continuation of the Greek Chronicle of Eusebius of Caesarea. In the portion of this work original to Jerome, covering the years 326– 78, Jerome gave a highly condensed but near-identical account of the Felician perjury dispute in Rome. Under the 282nd Olympiad, in the year corresponding to 349 (when Jerome believed that Liberius had been elected108), we find the following brief notice:

Liberius is ordained the thirty-fourth bishop of the Roman church. With his having been driven into exile on account of the faith, all of the clerics swore that they would accept no other [bishop]. When Felix had been substituted into the episcopacy by the Arians, however, very many committed perjury, and after a year they were ejected, together with Felix.109

Importantly, Jerome and the Collectio Avellana both agree on the parameters of this dispute, the parties involved, and even the content of the oath, which prohibited the Roman clergy from electing another pontiff while Liberius was still alive.110 Both sources agree that ‘all’ of the clerics swore, and that the perjured clergy were either expelled or ‘ejected’ on Liberius’s return. As with

105 Città del Vaticano, Biblioteca Apostolica Vaticana, Vat. lat. 3787. 106 Kate Blair-Dixon, ‘Memory and Authority in Sixth-Century Rome: The Liber Pontificalis and the Collectio Avellana’, in Kate Cooper and Julia Hillner, eds, Religion, Dynasty, and Patronage in Early Christian Rome, 300– 900 (Cambridge: Cambridge University Press, 2007), 59–76. 107 See p. 108 n. 72 above. 108 Jerome conceded that his chronology was imperfect: ‘Videlicet ut non uobis mirum uideatur si alicubi offendimus’ (Jerome, Eusebii Caesariensis chronicon, praef., ed. Jeanjean and Lançon, Saint Jérôme, 58). 109 Jerome, Eusebii Caesariensis chronicon, Olymp. 282, ed. Jeanjean and Lançon, Saint Jérôme, 88: ‘Romanae ecclesiae XXXIV ordinatur episcopus Liberius. Quo in exilium ob fidem truso omnes clerici iurauerunt ut nullum alium susciperent. Verum cum Felix ab Arrianis fuisset in sacerdotium substitutus, plurimi peierauerunt et post annum cum Felice eiecti sunt.’ 110 Cf. p. 112 n. 96 above: ‘clerus omnis … omnes pariter praesente populo Romano sub iureiurando firmarunt se uiuente Liberio pontificem alterum nullatenus habituros’. 114

the metaphorical use of locus for ‘office’ in the Collectio Avellana, Jerome’s participle eiecti could be used as a synonym for ‘deposed’ in late antique canonical literature.111 Moreover, Jerome’s account is very likely to have been independent. He published his chronicle before returning to Rome in the early-to-mid 380s, when he would have enjoyed access to the papal archive as one of Pope Damasus’ secretaries, and where documents such as the Avellana’s would have been conserved.112

If Jerome did not derive his information from the document later entered into the Avellana, then we must wrestle with the possibility that he was an eye witness to the events in question. Unfortunately, however – although the fact of Jerome’s Roman education is not disputed – the date of Jerome’s birth is, and this question has a direct bearing on our hypothesis of Jerome’s presence in the city during the 350s and 60s. According to J. N. D. Kelly, following Prosper of Aquitaine’s fifth-century report, Jerome was born much earlier than most other scholars have assumed, in 331.113 If that date is correct, then Jerome would have begun his Roman education as early as the early 340s, well before the Felician perjury scandal.114 Nevertheless, almost all other historians situate Jerome’s birth some fifteen or sixteen years later, in c.347, following the monk’s own testimony that he was still being educated in 363, when he heard of the news of the death of Julian of Apostate.115 Assuming that this later date for Jerome’s birth is correct, Jerome would have begun his Roman education some time in the mid-to-late 350s, around the time that the Felician clerics committed their perjury and were being expelled from their churches. Indeed, Jerome himself seems to provide us with a clue, noting in his Chronicle’s entry for the year 354 that Jerome’s own teacher, ‘Donatus the grammarian, my instructor’ (my emphasis) was

111 Carthage (a. 419), Commonitorium and Epistula ad Bonifatium. 112 On Jerome’s employment by Pope Damasus, see p. 108 n. 73 above. 113 Kelly, Jerome, 1–9, 337–9, citing Prosper of Aquitaine, Epitoma chronicorum, 1032. 114 Kelly, Jerome, 10. 115 Jerome, In Abacuc, 2.3.14, ed. M. Adriaen, CCSL 76A (Turnout: Brepols, 1970), 645: ‘Dum adhuc essem puer, et in grammaticae ludo exercerer, omnesque urbes uictimarum sanguine polluerentur, ac subito in ipso persecutionis ardore Iuliani nuntiatus esset interitus.’ For historians who therefore place Jerome’s birth in the years around 347, see e.g. Ferdinand Cavallera, Saint Jérôme: Sa vie et son oeuvre, ii (Paris: Champion, 1922), 3–12; P. Antin, ‘Jérôme antique et chrétien’, Revue des études augustiniennes 16/1 (1970): 35; and Booth, ‘The Date’. 115

flourishing at Rome.116 If Jerome began his Roman education in c.354, then he would have done so at a younger age than that of many of his contemporaries,117 yet Jerome’s childhood, youth, and early adulthood would have all been framed by the ongoing controversy between supporters of Pope Liberius and those of Pope Felix. Furthermore, similar elements of youthful autobiography also found their way into Jerome’s Chronicle. In the year 374, for example, around the time that Kelly agrees that Jerome adopted his ascetic lifestyle at Aquileia,118 the Chronicle notes: ‘The clergy of Aquileia are considered as a choir of the blessed.’119 Personal recollections thus furnished at least some of the material for Jerome’s Chronicle, and it seems likely that the Felician perjury dispute belonged to this group.

Nor were these experiences of perjury Jerome’s last. Toward the mid-point of his career, between 401 and 402, the monk at Bethlehem was the object of at least two allegations of perjury, which were asserted in a series of polemical exchanges with his erstwhile friend and adversary, Rufinus of Aquileia (c.344–411).120 At this point, our story reconnects with that of Origen, much of whose theology was increasingly regarded as heretical in the late fourth-century church. Like Jerome, Rufinus had been a youthful admirer of Origen’s, and translated many of his works.121 Unlike Jerome, however, Rufinus continued to defend his use of Origenistic texts and ideas, precipitating a theological crisis which has come to be known as the ‘Origenist controversy’.122 In 401, Rufinus composed an Apology Against Jerome, in which he complained that Jerome had dispatched an Italian monk and acquaintance, Eusebius of Cremona, to steal and falsify his working copy of On First Principles, Rufinus’s translation of Origen’s philosophical treatise by the same name, in order to make Rufinus appear less competent and more heterodox than he really

116 Jerome, Eusebii Caesariensis chronicon, Olymp. 283, ed. Jeanjean and Lançon, Saint Jérôme, 90: ‘Victorinus rhetor et Donatus grammaticus, praeceptor meus, Romae insignes habentur.’ 117 Kelly, Jerome, 7. 118 Kelly, Jerome, 30–5. 119 Jerome, Eusebii Caesariensis chronicon, Olymp. 288, ed. Jeanjean and Lançon, Saint Jérôme, 104: ‘Aquileienses clerici quasi chorus beatorum habentur.’ Cf. Jerome’s comment on his own instructors, at p. 116 n. 116 above. 120 For chronology and overview of this period in Jerome and Rufinus’s relations, see Kelly, Jerome, 243–58. 121 See e.g. Manlio Simonetti, ‘Appendix’, in Simonetti, ed., CCSL 20 (Turnhout: Brepols, 1961), 243–51, 269–77, 283–5. 122 Elizabeth A. Clark, The Origenist Controversy: The Cultural Construction of an Early Christian Debate (Princeton: Princeton University Press, 1992). 116

was.123 At the same time, Rufinus alleged that Jerome had committed the first of two perjuries, violating a solemn promise which we will consider below.124 While the theological issues at stake were both numerous and abstract, including the resurrection of the body and the status of free will,125 it is striking that these theological questions intertwined with behavioural concerns over perjury, forgery, and the other ‘crimes of falsehood’. Like the Felician perjury dispute, which began as a form of Nicene opposition to a semi-Arian emperor,126 this debate over the reception of Origen turned at least in part on disciplinary matters. Significantly, most of the participants in this controversy were known to each other. Jerome and Rufinus had studied and explored their ascetic interests together in Rome and Aquileia,127 and some of the same aristocrats patronized both Rufinus’s activities and Jerome’s.128 As the religious historian Elizabeth Clark has emphasized, the Origenist controversy pitted against each other not only theological rivals, but also competing networks of patrons and acquaintances.129

Of Rufinus’s two perjury allegations against Jerome, the first is the more famous, yet also the less legally consequential. Perhaps in the middle of the 370s, during Jerome’s first trip to the eastern Mediterranean,130 the monk reported experiencing a dream, in which he imagined that he was on trial before a judge who reproved him for his excessive affection for pagan, classical literature. As Jerome later described this episode in a letter to Paula’s daughter,131 the judge asked the monk if he were a Christian or a ‘Ciceronian’. When Jerome affirmed that he was a Christian, the judge responded, ‘You are lying: you are a Ciceronian, not a Christian; “where thy treasure is,

123 Rufinus, Apologia contra Hieronymum, 1.19: ‘Haec si in foro positus … commisisset ille [viz., Eusebius] qui de monasterio Romam, quasi calumniandi peritissimus, missus est, norunt omnes quid consequeretur ex legibus publicis huiusmodi criminis reus.’ Cf. pp. 109 n. 81, 110 n. 86 above. 124 Rufinus, Apologia contra Hieronymum, 2.4–11, 2.46. 125 For summary see Clark, Origenist Controversy, 3–6. 126 See pp. 111–12 above. 127 Jerome, Epistulae, 3.4; Rufinus, Apologia contra Hieronymum, 1.4. 128 Notably Melania the Younger and her husband, Valerius Pinianus: Rufinus, Prologus in homelias Origenis super Numeros; Jerome, Epistulae, 143.2. 129 Clark, ‘Elite Networks and Heresy Accusations: Towards a Social Description of the Origenist Controversy’, in eadem, Origenist Controversy, 11–42. 130 See p. 108 n. 71 above. 131 Jerome, Epistulae, 22. 117

there is thy heart also” [Matt. 6:21]’, and ordered Jerome to be beaten.132 Well known to students of classical and Christian literature,133 Jerome’s dream provided Rufinus with an opening to attack his adversary in the context of the Origenist controversy. For the dream of Jerome’s trial had concluded with an oath: ‘I … began to swear and to say, calling His name to witness: “Lord, if ever I possess secular books, if I read them, I shall have denied you.”’134 In 401, Rufinus alleged that Jerome had violated precisely this oath, since the monk had manifestly relied on the works of pagan, classical literature, in order to assist him with his biblical commentaries and other writings.135 While Jerome dismissed this allegation as trivial,136 one aspect of his response is worth highlighting. According to his retaliatory Apology Against Rufinus, also dispatched in 401, the purpose of Rufinus’s allegation had been to call Jerome’s trustworthiness into question. Rufinus, as we have seen, was under suspicion of Origenist heresy; through 400–1, he defended himself in a statement of faith delivered to the pope, and solemnly repudiated Origen’s position on perjuries in particular.137 In the event of any ecclesiastical proceeding, Jerome’s opinions might have been received as a kind of expert testimony: ‘[I]f you prove that I perjured myself,’ the monk reflected, ‘you [Rufinus] will not be a heretic.’138 Moreover, imitating St Paul and other ancient writers, both Rufinus and Jerome made use of oaths in order to solemnize various statements throughout their

132 For the most recent, inconclusive attempt at the dating of this episode, see Neil Adkin, ‘The Date of the Dream of Saint Jerome’, Studi classici e orientali 43 (1995): 263–73. Jerome, Epistulae, 22.30, ed. Hilberg, CSEL 54, p. 190: ‘Et ille, qui residebat: “Mentiris,” ait, “Ciceronianus es, non Christianus; ubi thesaurus tuus, ibi et cor tuum.” Ilico obmutui et inter uerbera – nam caedi me iusserat – conscientiae magis igne torquebar.’ On beating as a summary punishment for perjury and false witness, see ch. 2, ‘Criminalization’, pp. 79–80, 95. 133 See e.g. Patricia Cox Miller, ‘The Blazing Body: Ascetic Desire in Jerome’s Letter to Eustochium’, The Journal of Early Christian Studies 1/1 (1993): 21–45; Guy G. Stroumsa, ‘Dreams and Visions in Early Christian Discourse’, in David Shulman and Stroumsa, eds, Dream Cultures: Explorations in the Comparative History of Dreaming (Oxford: Oxford University Press, 1999), 198; and Ann Mohr, ‘Jerome, Virgil, and the Captive Maiden: The Attitude of Jerome to Classical Literature’, in J. H. D. Scourfield, ed., Texts and Culture in Late Antiquity: Inheritance, Authority, and Change (Swansea: The Classical Press of Wales, 2007), 299–322. 134 Jerome, Epistulae, 22.30, ed. Hilberg, CSEL 54, p. 191: ‘Ego … deiurare coepi et nomen eius obtestans dicere: “Domine, si umquam habuero codices saeculares, si legero, te negavi.”’ 135 Rufinus, Apologia contra Hieronymum, 2.4–11, 2.46. For the definitive treatment of Jerome’s use of classical literature, see Harald Hagendahl, Latin Fathers and the Classics: A Study of the Apologists, Jerome and Other Christian Writers, Studia Graeca et Latina Gothoburgensia 6 (Göteborg: Elanders, 1958), 91–328 passim. 136 ‘[N]ouum impudentiae genus, obicit mihi somnium meum’ (Jerome, Apologia, 1.31, ed. Lardet, CCSL 79, p. 31). 137 Rufinus, Apologia quam pro se misit Rufinus presbyter ad Anastasium, Romanae urbis episcopum, and see pp. 121–2 below. 138 Jerome, Liber tertius, 32, ed. Lardet, CCSL 79, p. 103: ‘[S]i me periurum docueris, tu haereticus non ’ (tr. Hritzu, Saint Jerome, 203). 118

works. If either of them could be shown to be a perjuror, then his literary output would be unreliable.139

From a legal perspective, Rufinus’s second allegation of perjury proved to be more consequential, and it elicited a stronger reaction from the monk at Bethlehem. In c.402, during a second round of this polemical exchange, Rufinus implied that Jerome had committed perjury, violating not an oath sworn in a dream, but an oath sworn before an actual human magistrate, at the conclusion of Jerome’s Roman trial in the summer of 385.140 Unfortunately, this second allegation by Rufinus has not survived in its original form, yet we possess Jerome’s quotation of it, excerpted in his so-called Third Book Against the Books of Rufinus. According to Jerome, Rufinus now conceived ‘homicidal’ intentions against him. Repeated references to death and destruction distinguish Jerome’s Third Book from his previous Apology Against Rufinus;141 a reference to ‘proscription and daggers’ (inscriptionem et gladios) clarifies that Jerome believed that Rufinus had threatened him with a secular, possibly capital accusation.142 Although the written record of Jerome’s trial in 385 has also not survived, Rufinus apparently knew this record’s contents, and suggested that he might disclose them to the public:

[Y]ou [Rufinus] rant against me and say: ‘Could I also not describe your manner of departure from [Rome], the judgment that was passed over you at the time, the things which were subsequently written, the oath which you took, the place where you boarded the ship, the pious manner in which you avoided perjury? I could have revealed this information, but I decided to hold back more information than I reveal.’ Such remarks are furtherances of your eloquence. And, if I say anything harsh against you after such remarks, you immediately threaten me with proscription and daggers. And in the meantime, you sport most eloquently in

139 Jerome, Liber tertius, 2, 9, 25, and Rufinus, Apologia, 2.48; cf. Augustine, Epistulae, 67.2. For St Paul’s use of the oath, see ch. 1, ‘Introduction’, p. 31 n. 191. 140 See pp. 108 n. 77, 109–10 nn. 83–5 above. 141 ‘[T]u … me morte deterres’ (Jerome, Liber tertius, 1, ed. Lardet, CCSL 79, p. 73); ‘quid uultis occidere?’ (ibid., 2, p. 75); ‘minaris interitum’ (ibid.); etc. 142 Jerome, Liber tertius, 8, ed. Lardet, CCSL 79, p. 81: ‘Terres me gladiis tuis, et accusationem non iam ecclesiasticam, sed tribunalium comminaris.’ 119

rhetoric, and pretend to pass over things which you reveal, so that you make crimes out of the charges which you could not prove by passing them over.143

In this remarkable text, the oath sworn by Jerome in 385 becomes the basis for reopening a legal case, spanning some seventeen years and impacting Jerome at the height of his career. That perjury was at issue is apparent from Jerome’s reply: Rufinus’s quotation dwells upon ‘the oath which [Jerome] took’ and the ‘pious manner’ (apparently sarcastic) ‘in which [he] avoided perjury’: quid iuraveris … quam sancte periurium vitaveris.144 Rufinus’s quotation continues, ‘I could have revealed this information, but I decided to hold back’; Jerome retorts, evidently referring to the same oath and perjury, ‘You pretend to pass over things which you reveal, so that you make crimes out of the charges which you could not prove.’145 As we saw near the beginning of this section, Jerome may have been tried in 385 for ecclesiastical legacy hunting, but other charges were certainly possible. Even the civil or ecclesiastical nature of that proceeding remains unclear – though Rufinus’s preference for a secular procedure in 401 may suggest that the oath had been sworn to a civil magistrate.146 Either way, Jerome evidently feared that his observance of the oath of 385 could be challenged. According to Andrew Cain, who has provided the most penetrating analysis of this episode, the oath may have ‘prohibited Jerome from taking Paula with him, a condition of the sentence that would have been very appealing to her family’.147 Yet the

143 Jerome, Liber tertius, 21, ed. Lardet, CCSL 79, p. 93: ‘[E]t contra me furibundus iactaris et loqueris: “Numquid et ego non possum enarrare tu quomodo de Vrbe discesseris, quid de te in praesenti iudicatum sit, quid postea scriptum, quid iuraueris, ubi nauim conscenderis, quam sancte periurium uitaueris? Poteram pandere, sed plura reseruare statui quam referre.” Haec sunt tuorum ornamenta uerborum. et post ista, si quid in te asperum dixero, statim mihi inscriptionem et gladios comminaris. Et interim, homo eloquentissimus, arte ludis rhetorica et simulas te praeterire quae dicis, ut, qui obiecta probare non poteras, quasi praetermissa facias criminosa’ (tr. Hritzu, Saint Jerome, 189– 90). 144 See p. 120 n. 143 above. On the use of sarcasm in these exchanges, see C. P. Hammond, ‘The Last Ten Years of Rufinus’s Life and the Date of His Move South from Aquileia’, The Journal of Theological Studies NS 28/2 (1977): 408 n. 1, 411 n. 1. 145 See p. 120 n. 143 above: ‘simulas te praeterire quae dicis, ut, qui obiecta probare non poteras, quasi praetermissa facias criminosa’. 146 Cain, Letters, 114–17, believes that Jerome was tried before an ecclesiastical court, and possibly on a charge of sexual immorality, rather than of legacy hunting. Regrettably, the evidence is inconclusive, yet Jerome believed that ecclesiastical documents would vindicate him: ‘scriptis ecclesiasticis arguendus sim’ (Jerome, Liber tertius, 22, ed. Lardet, CCSL 79, p. 94). 147 Cain, Letters, 123. 120

widow did follow Jerome to Bethlehem,148 and this decision may have amounted, in Rufinus’s retrospective interpretation, to perjury. Importantly, Jerome could not assume that his adversary’s threat was idle: in 395, when the monk had been suspended from communion by the bishop of Jerusalem,149 the praetorian prefect for the eastern provinces was given a ‘rescript’ for the enforcement of the bishop’s judgment. While the prefect’s death prevented him from carrying out his orders, Jerome protested what he termed the prefect’s ‘running around the whole world’.150 Moreover, if Jerome swore his oath of 385 in the name of the emperor, then he could have ranked amongst the treasonous and sacrilegious to whom no statute of limitations applied. Imperial constitutions regularly pardoned other offenders, but frequently excluded those convicted of treason and sacrilege.151

Although Rufinus’s perjury accusation never materialized, it seems to have marked a turning point in Jerome’s own thinking about perjury and false witness. Up until that point, Jerome himself occasionally offered Origenistic defences of some lies and falsehoods;152 after the controversy with Rufinus, I am familiar with only one comment by Jerome which seemed to excuse certain perjuries, a comment which Jerome probably did not mean to be taken literally.153 For both Rufinus and Jerome, perjury was now important enough to feature prominently in a theological debate, and Jerome continued to complain about what he considered Rufinus’s false allegations until near the end of his life. In his Commentary on the Book of Jeremiah, composed in c.414–15 – after the death of Rufinus154 – Jerome still criticized ‘those who send letters into all the world

148 Jerome, Epistulae, 108.6–14. 149 See p. 108 n. 78 above. 150 Jerome, Epistulae, 82.10, ed. Isidor Hilberg, CSEL 55 (2nd ed., Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 1996), 117: ‘Quid necesse est auctoritate publica et rescripti inpendiis et toto orbe discursibus?’ See Nautin, ‘L’excommunication’, 17–18. 151 See e.g. CTh 9.38.3 (a. 367, 369): ‘[a]dtamen sacrilegus in maiestate [et alii] … separentur’. As always, ecclesiastics remained subject to secular courts in criminal matters: CTh 16.2.23 (a. 376). 152 See e.g. Jerome, Ad Ephesios, 2 (cited by Rufinus, Apologia contra Hieronymum, 2.2), and Ad Galatas, 1.2 (cited by Augustine, Epistulae, 28.3). 153 Jerome, Tractatus LIX in psalmos, 146. As Germain Morin argues, this work (unusually) was not intended for public consumption. See Germain, ‘Les monuments de la prédication de S. Jérôme’, in idem, Études, textes, découvertes: Contributions à la littérature et à l’histoire des douze premiers siècles (Paris: Abbaye de Maredsous, 1913), 245–55. 154 Kelly, Jerome, 316, 327; Hammond, ‘The Last Ten Years’, 393. 121

filled with lies, deception, and perjury’, apparently alluding to Rufinus.155 Furthermore, the participants in the Origenist controversy felt specifically called upon to reject Origen’s opinion on perjuries, and this ‘teaching on perjury’ was transformed into a test of Christian orthodoxy. According to Rufinus’s Apology Against Jerome, Origen’s ‘teaching’ or dogma periurii had been handed down ‘through certain orgies and mysterious confederations’,156 a phrase which is unclear to me but which may have referred to the Egyptian monks, such as John Cassian,157 amongst whom Rufinus spent a considerable portion of the 370s and 80s, and with several of whom Origenistic ideas remained popular.158 In any case, Rufinus ‘made satisfaction’ to Jerome by means of a solemn, private anathema (anathemate satisfeci),159 condemning the Origenistic stance on perjuries and anathematizing anyone who supported it:

Nevertheless, since the teaching on perjury has been raised, if [Jerome] either acts or writes, it is nothing to me. [Yet] since he has attempted to impute this stain to us, amongst not a few brethren … I proffer what I myself feel concerning perjury, so that, once again, I may leave the judgment concerning himself to himself. For when our Lord and Saviour says in the Gospels, ‘You have heard that it was said to them of old, Thou shalt not forswear thyself: but thou shalt perform thy oaths to the Lord. But I say to you not to swear at all’ [Matt. 5:33–4], I state that everyone who teaches that perjury is to be committed, for whatever reason, may be estranged from the faith of Christ and from the unity of the .160

155 Satirized throughout Jerome’s commentary as Grunnius, ‘the grunter’: Jerome, In Hieremiam, praef., 4–5. See p. 111 n. 90 above: ‘qui epistulas plenas mendaciorum et fraudulentiae atque periurii in orbem dirigunt’. 156 Rufinus, Apologia contra Hieronymum, 2.4, ed. Simonetti, CCSL 20, p. 86: ‘per orgia quaedam et mysticas confoederationes’. 157 See pp. 27, 99 above. 158 Clark, Origenist Controversy, 159. 159 Rufinus, Apologia contra Hieronymum, 2.4, ed. Simonetti, CCSL 20, p. 86. 160 On the use of such private anathemas, see Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), 228. Rufinus, Apologia contra Hieronymum, 2.3, ed. Simonetti, CCSL 20, p. 85: ‘Verumtamen quoniam periurii dogma proponitur, nihil ad me si iste uel agat uel scribat. Quia apud nonnullos fratrum etiam hanc nobis inurere conatus est maculam … quid ego ipse de periurio sentiam, profero, ut de sese iterum sibi ipsi iudicium derelinquam. Etenim cum Dominus et Saluator noster dicat in euangeliis: Dictum est antiquis: Non periurabis; reddes enim Domino iuramenta tua. Ego autem dico uobis: nolite iurare omnino, omnis qui docet quacumque ex causa periurandum esse, ego dico quod alienus sit a fide Christi et ab ecclesiae unitate catholicae.’ 122

Thus when Jerome and his contemporaries wrote about perjury, they did not do so in a cultural vacuum. For Jerome and many of his interlocutors, perjury was in the process of being peccatized, rendered into a grave sin for which a variety of disciplinary measures were appropriate. In his youth, Jerome had probably witnessed any number of perjured clerics being deposed from their offices, only to be reinstated eight years later in an act of mercy by the pope;161 in their maturity, Jerome and Rufinus competed with one another to determine which of the two was more consistent in the condemnation of perjury.162 At the same time, we must remember that almost all of these statements, including those in Jerome and Rufinus’s polemical treatises and those in the letter excerpted in the Collectio Avellana, were made in a public or semi-public format. For example, Rufinus addressed his Apology Against Jerome, a work ostensibly directed at the monk in Bethlehem, to the author’s friend Apronianus – who had forwarded him Jerome’s own correspondence, addressed to yet another mutual acquaintance.163 In The Apology Against Rufinus, Jerome noted that he had received letters both from Rufinus and from other people informing him of Rufinus’s treatise, and admitted that he had begun working on his own Apology before receiving Rufinus’s.164 To a considerable extent, Christian intellectuals like Jerome and Rufinus lived and wrote in public, and this consideration affects our own assessment of the degree of perjury’s peccatization. Rufinus both knew and could criticize his adversary for his famous dream, even though the letter in which the dream had been narrated was addressed to Paula’s daughter;165 while an anonymous priest in Rome had been able to criticize the same letter around the time that it was written.166 In such a context, allegations of perjury and other falsehoods could be expected to do injury, possibly entailing a loss of ecclesiastical reputation, prosecution in the civil law courts, and ecclesiastical sanctions, all in various combinations.

161 See p. 113 above. 162 As Rufinus remarked near the end of his first treatise, ‘Periurii etiam confoederationem apud nullum ita ut apud ipsum ostendi sacratissimam conseruari’ (Rufinus, Apologia contra Hieronymum, 2.46, ed. Simonetti, CCSL 20, p. 119). 163 Rufinus, Apologia contra Hieronymum, 1.1. 164 Jerome, Apologia, 1.1, 2.35, ed. Lardet, CCSL 79, pp. 1, 72: ‘[e]t uestris et multorum litteris’; ‘expectans … [Rufini] uolumina’. 165 See p. 117 n. 131 above. 166 Jerome, Epistulae, 40.2; for discussion see Cain, Letters, 89. 123

From a theological perspective, Jerome’s most important statements on perjury and false witness occurred either during or after the Origenist controversy. Jerome spent much of the and producing a series of commentaries on the prophetical books of the Old Testament, where perjuries were often dealt with severely,167 and these commentaries furnished a context for Jerome’s definition of perjury, which was later incorporated in medieval canon law.168 In his Commentary on the Book of Jeremiah, undertaken in c.414–15 but never completed,169 Jerome had ample material to work with. The Book of Jeremiah discussed oath taking extensively,170 and included several condemnations of perjury;171 as we have seen, Jerome took this opportunity to renew his criticisms of the deceased Rufinus. Dedicated to Eusebius of Cremona, the alleged thief and falsifier of Rufinus’s On First Principles, the Jeremiah commentary formed a literal-historical companion piece to an earlier Commentary on the Gospel of Matthew, likewise requested by Eusebius some sixteen years previously.172 The text which occasioned Jerome’s definition of perjury was a prophetic commentary on the common Old Testament oath formula, ‘as the Lord liveth’: ‘If thou wilt return, O Israel,’ The Book of Jeremiah insists, ‘thou shalt not be moved. And thou shalt swear: As the Lord liveth, in truth, and in judgment, and in justice: and the Gentiles shall bless him, and shall praise him.’173 In the context of the prophetic writing, this prospect of a form of oath taking which could be truthful, judicious, and just, served as an exhortation to the denizens of Israel and Judah to return to the worship of the one true God.174 For other prophetic authors, the combination of ‘judgment’ and ‘justice’ was a recurrent theme;175 ‘truth’ seems to

167 See ch. 1, ‘Introduction’, pp. 24–5. 168 Gratian, Decretum, C. 22, q. 2, c. 2. For Jerome’s activities during this period, see Kelly, Jerome, 283–323. 169 Perhaps owing to an armed attack on his monastery: Josef Lössl, ‘Who Attacked the Monasteries of Jerome and Paula in 416 AD?’, Augustinianum 44/1 (2004): 91–112. 170 Jer. 4:2, 5:2, 5:7, 11:5, 12:16, 22:5, 38:16, 40:9, 49:13. 171 Jer. 5:2, 7:9. 172 Jerome, In Hieremiam, praef., ed. Reiter, CCSL 74, p. 1: ‘[I]n Hieremiam manum mittimus tibi, frater Eusebi, eiusdem commentariolos dedicantes, ut euangelicum uirum Mattheo euangelistae copules, quem ante annos plurimos strictis sensibus te hortante disserui.’ 173 Jer. 4:1–2. For the oath formula in question, see Yael Ziegler, Promises to Keep: The Oath in Biblical Narrative, Supplements to the Vetus Testamentum 120 (Leiden: Brill, 2008), 81–122. 174 Walter Brueggemann, A Commentary on Jeremiah: Exile and Homecoming (Grand Rapids: William B. Eerdmans, 1998), 36, 328. 175 See e.g. Isa. 5:16, 9:7, 56:1; Hos. 2:19; Amos 5:24, 6:13. 124

have been Jeremiah’s particular addition.176 In the context of the fourth and fifth centuries, however, this text served as an occasion for clarifying the nature of the ‘crimes of falsehood’, of which Jerome, Eusebius, and Rufinus had such notable experience.

Jerome develops his text in the order of the biblical book, adding linguistic comments, historical explanations, and occasionally more controversial remarks as he comes to each new verse. When he comes to the text of Jer. 4:1–2, he raises the problem of Christian oath taking, expressly forbidden in The Gospel of Matthew’s ‘Sermon on the Mount’ but seemingly licensed by the example of Paul and the Old Testament prophets, amongst others.177 ‘How is it that the Gospel prohibits us from swearing?’, Jerome asks;178 and indeed, Rufinus had cited this same text in his own anathematization of those who taught the Origenistic dogma periurii.179 Sixteen years earlier, Jerome had likewise raised this question with Eusebius of Cremona, when he commented on ‘The Sermon on the Mount’ in his Commentary on the Gospel of Matthew. On that occasion, the monk had argued that Jesus did not prohibit all oath taking, but rather oath taking by the various witnesses indicated in Jesus’ sermon: ‘the heavens’, ‘the earth’, the city of Jerusalem, and one’s own ‘head’.180 Jerome termed these possible invocations ‘the elements’, ‘creatures’, and ‘carnal things’, and swearing by them (according to Jerome) detracted from the worship of God.181 Commenting now on the text of Jer. 4:1–2, Jerome resumed this argument against ‘swearing by creatures’, upholding the harmony of the Gospel and prophetic teachings, and concluding with a definition of perjury for exegetical purposes:

Here, the word swear is used as part of a confession and for the purpose of condemning the idols [i.e., the heavens, earth, etc.] by which Israel had been

176 Brueggemann, Commentary, 49. 177 See ch. 1, ‘Introduction’, pp. 29–32. 178 Jerome, In Hieremiam, 1.69.1, ed. Reiter, CCSL 74, p. 40: ‘Et quomodo euangelium iurare nos prohibit?’ (tr. Graves, Jerome, 26). 179 Cf. p. 122 n. 160 above. 180 Matt. 5:34–6; Jerome, In Matthaeum, 1. 181 Jerome, In Matthaeum, 1.648–52, ed. D. Hurst and M. Adriaen, CCSL 77 (Turnhout: Brepols, 1969), 32: ‘Iudaei per … elementa iurantes, creaturas resque carnales uenerabantur honore et obsequio Dei.’ 125

swearing; now the abominations are being removed and Israel is swearing by the Lord. As for the phrase ‘the Lord lives’, it is an oath taken in the Old Testament for the purpose of condemning things that are dead, by which all idol worshipers swear. In addition, it should be carefully noted that this oath holds these three companions: truth, justice (iudicium) and uprightness (iustitia). If these things are lacking, there will be not an oath, but perjury.182

Remarkably, this definition does not seem to have been original to Jerome. Instead, the monk appears to have been paraphrasing and summarizing none other than Origen, whose works Jerome continued to quietly use even as he denounced Origenistic theology in general and Rufinus in particular.183 In Origen’s Homilies on the Book of Jeremiah, fourteen of which Jerome translated into Latin in Constantinople during the late 370s,184 there is a discussion of oath taking at precisely the same scriptural locus, Jer. 4:1–2. Like Jerome, Origen raises the problem of Christian oath taking, citing ‘The Sermon on the Mount’;185 also like Jerome, Origen addresses the problem of ‘giv[ing] false oaths’, or of perjury (ἐπιορκοῦμεν).186 While the image of the ‘three companions’ in oath taking appears to have been Jerome’s own, Origen’s somewhat longer discussion provides essential context for understanding the three elements which Jerome concluded were required for a non-perjurious oath, namely truth, judgment, and justice:

We know what is said to the disciples in the Gospel by the Lord: But I say to you: do not swear at all [Matt. 5:34], but let us also consider that word [Jer. 4:1–2], and if God will permit, both views will be examined. For perhaps first it is necessary to swear in truth and in judgment and in righteousness [Jer. 4:2] so that after this, after having progressed, a worthy person may come not to swear at all [Matt. 5:34].

182 Jerome, In Hieremiam, 1.69.1–2, ed. Reiter, CCSL 74, p. 40: ‘Sed hic “iurabis” pro confessione dicitur et ad condemnationem idolorum, per quae iurabat Israhel. Denique auferuntur offendicula et iurat per Dominum. Quodque dicitur: uiuit Dominus, in testamento ueteri iusiurandum est ad condemnationem mortuorum, per quos iurat omnis idololatria. Simulque animaduertendum, quod iusiurandum hos habeat comites: ueritatem, iudicium atque iustitiam; si ista defuerint, nequaquam erit iuramentum, sed periurium’ (tr. Graves, Jerome, 26). 183 See p. 108 n. 76 above. 184 See p. 108 n. 72 above. 185 Origen, Homiliae in Hieremiam, 5.12. 186 Origen, Homiliae in Hieremiam, 5.12, ed. Erich Klostermann, Origenes Werke, iii: Jeremiahomilien, Klageliederkommentar, GCS (Leipzig: J. C. Hinrichs, 1901), 41. 126

… First, in the swearing, let not the false but the true live, so he may swear with truth – for we wretches also give false oaths. But suppose it is with truth, the oath is still not proper, but in judgment. For it may happen that I swear from habit, I do not swear in judgment. If one would need to take for some oath the witness of the God of the universe and his Christ with respect to some matter, how great must be the matter to get down on one’s knees and swear? To cure the unbelief which arises in some concerning my discourse I might at some point do this, but if it is a risk if I swear thus, I would sin.

If, then, he swears, ‘May the Lord live with truth and in judgment,’ not without judgment, ‘and in righteousness,’ not with unrighteousness, the nations will bless him [Jer. 4:2].187

For Origen, the element in oath taking which attracts the most attention is the second element in the prophetic list, namely ‘judgment’ (κρίσις in Origen’s Greek and the Septuagint; iudicium for Jerome and his Vulgate). In the foregoing passage, Origen deals with the two remaining elements, ‘truth’ (ἀλήθεια/veritas) and ‘justice’ or ‘righteousness’ (δικαιοσύνη/iustitia), briefly, at the passage’s beginning and at its end. Nevertheless, the entire middle section of the passage is consumed with a discussion of ‘judgment’, whose meaning Origen elucidates. According to Origen, committing perjury (ἐπιορκοῦμεν) was not the only kind of illicit oath. In order to be morally appropriate or ‘fitting’ (καλῶς), an oath also had to be sworn with ‘judgment’, a concept which Origen contrasts with ‘habit’ (ἔθει). Moreover, a non-habitual, judicious oath had

187 Origen, Homiliae in Hieremiam, 5.12, ed. Klostermann, Origenes Werke, 40–1: Οἴδαμεν ἐν τῷ εὐαγγελίῳ εἰρημένον ὑπὸ τοῦ κυρίου πρὸς τοὺς μαθητάς· « Ἐγὸ δὲ λέγω ὑμῖν μὴ ὀμόσαι ὅλως », ἴδωμεν δὲ καὶ τοῦτο τὸ ῥητόν· καὶ ἐὰν διδῷ θεός, συνεξετασθήσεται τὰ ἀμφότερα. Τάχα γὰρ πρῶτον δεῖ ὀμόσαι « ἐν ἀληθείᾳ καὶ ἐν κρίσει καὶ ἐν δικαιοσύνῃ », ἵνα μετὰ τοῦτο προκόψας τις ἄξιος γένηται τοῦ μὴ ὀμνύειν ὅλως.… Ἐν τῷ ὀμνύοντι πρῶτον ζητῶ τὸ μὴ ψεῦδος, ἀλλὰ τὸ ἀλη|θές, ἵνα μετὰ ἀληθείας ὀμόσῃ· ἡμεῖς δὲ οἱ τάλανες καὶ ἐπιορκοῦμεν. Ἀλλ᾽ ἔστω « μετὰ ἀληθείας », οὐδὲ <οὕτως> καλῶς ὅρκος γίνεται, ἀλλ᾽ « ἐν κρίσει ». Δεδόσθω γὰρ, ἔθει ὀμνύω· <οὐκ ὀμνύω> « ἐν κρίσει ». Εἰ δέοι παραλαμβάνειν εἰς τὸν τοιοῦτον ὅρκον τὸν θεὸν τὸν τοῦ παντὸς, <καὶ> τὸν Χριστὸν αὐτοῦ ἐπὶ τόδε τὸ πρᾶγμα, πηλίκον δεῖ εἶναι τὸ πρᾶγμα, ἵνα γόματα θῶ καὶ ὀμόσω; πρὸς τὴν ἀπιστίαν γενομένην ἔν τισιν περὶ τοῦ λόγου μου θεραπεύων τοῦτο ποιήσαιμί ποτε, εἰ δὲ ὡς ἔτυχεν, εἰ οὕτος ὀμνύοιμι, ἁμάρτοιμι ἄν. « Ἐὰν » οὖν « ὀμόσῃ· <ζῇ> κύριος μετὰ ἀληθείας καὶ ἐν κρίσει » μὴ ἀκρίτος « καὶ ἐν δικαιοσύνῃ » μὴ ἀδίκως, « καὶ εὐλογήσουσιν ἐν αὐτῷ ἔθνη » (tr. John Clark Smith, Origen: Homilies on Jeremiah, Homily on 1 Kings 28, The Fathers of the Church 97 [Washington, DC: The Catholic University of America Press, 1998], 53–4). 127

to concern a ‘great … matter’, serious enough ‘to take … the witness of the God of the universe and his Christ’.188 Frivolous, indiscreet oath taking was thus as much a target of Origen’s discourse as outright perjury was, and he may have felt that this topic was particularly suited to his audience. Composed while Origen was living in Caesarea in Palestine during the 240s,189 The Homilies on the Book of Jeremiah give numerous indications of oral delivery. In the text before us, Origen addresses the audience repeatedly, inviting them to consider the problem of oath taking with him and identifying himself with his audience.190 Origen’s explanations tend to be short and conversational, and he refers to what appears to be a local oath taking ritual: kneeling on the ground in order to swear.191 Indeed, the patristics scholar Pierre Nautin believes that Origen’s homilies were delivered extemporaneously,192 in which case the digression on indiscreet and injudicious oath taking can be compared with the concerns of similar sermons preached throughout the late antique world.193 Like The Gospel of Matthew, which highlighted the dangers of ‘infelicitous’ oath taking by biblical figures such as Herod,194 Origen primarily cautioned his audience against oath taking which was ill advised.

Yet despite drawing on Origen for inspiration, Jerome altered Origen’s approach. In his own interpretation of Jer. 4:1–2, culturally specific aspects of the eastern father’s treatment (such as kneeling) were dropped, as was the conversational tone. More importantly, however, Jerome made changes to Origen’s comments on perjury. For Origen, perjury pertained only to oaths which did not meet the first of the prophetic criteria, namely ‘truth’.195 In the rest of Origen’s discussion, where indiscreet and injudicious oath taking is under consideration, the word ‘perjury’ is never

188 See p. 127 n. 187 above: Εἰ δέοι παραλαμβάνειν εἰς τὸν τοιοῦτον ὅρκον τὸν θεὸν τὸν τοῦ παντὸς, <καὶ> τὸν Χριστὸν αὐτοῦ ἐπὶ τόδε τὸ πρᾶγμα, πηλίκον δεῖ εἶναι τὸ πρᾶγμα, ἵνα γόματα θῶ καὶ ὀμόσω. 189 Pierre Nautin, ‘Introduction’, in Nautin, ed., Origène: Homélies sur Jérémie, SC 232 (Paris: Cerf, 1976), 15–21. 190 See p. 127 n. 187 above: Οἴδαμεν … ἴδωμεν … ἡμεῖς δὲ οἱ τάλανες καὶ ἐπιορκοῦμεν. 191 See p. 127 n. 187 above: γόματα θῶ. 192 Nautin, ‘Introduction’, 112–23. 193 See e.g. Augustine, Sermones, 180. 194 Jo-Ann A. Brant, ‘Infelicitous Oaths in the Gospel of Matthew’, The Journal for the Study of the New Testament 19 (1997): 3–20. 195 See p. 127 n. 187 above: Ἐν τῷ ὀμνύοντι πρῶτον ζητῶ τὸ μὴ ψεῦδος, ἀλλὰ τὸ ἀλη|θές, ἵνα μετὰ ἀληθείας ὀμόσῃ· ἡμεῖς δὲ οἱ τάλανες καὶ ἐπιορκοῦμεν. 128

used. By contrast, Jerome insisted that all three ‘companions’, truth, judgment, and justice, were necessary for a non-perjurious oath: ‘If these things are lacking,’ plural, ‘there will be not an oath, but perjury’; si ista defuerint, nequaquam erit iuramentum, sed periurium.196 For Jerome, an oath which was truly sworn (such as Herod’s) but which was unjust or ill advised could still be discussed as perjury, an idea which was not obvious from Origen’s treatment. Yet this moral equation between injudicious oath taking and perjury solved the embarrassing exegetical difficulty that Origen and other defenders of certain perjuries faced: by swearing unwisely, Herod had already committed perjury.197 Intriguingly, the mature Jerome appears to have been consistent in treating injudicious oaths as perjuries. Elsewhere in The Commentary on the Book of Jeremiah, he criticizes ‘false teachers [who] have handed themselves over to lies, perjury, and the death of those they have deceived’, because ‘they do not move cautiously or in measured steps, but hastily run to their own destruction’ – an apparent violation of the ‘companion’ of judgment.198 Similarly, in his Commentary on the Book of Isaiah, composed in c.408–10, Jerome criticized those who committed perjury by violating the ‘companion’ of justice: ‘You who … swear in the name of the Lord, not so that you may honour God, but so that, with [his] name having been assumed, you may do wrong, when you wish him to be the witness of your lie.’199

To my knowledge, Jerome’s definition of perjury as an unwise or unjust oath as well as an untrue one was without precedent in previous patristic literature or Roman law. By contrast, Jerome’s treatment of false witness proved to be more conventional, yet no less indicative of fourth-century realities. In his Commentary on the Gospel of Matthew, Jerome faced a different kind of exegetical problem, an apparent discrepancy within the New Testament narratives of Jesus’ life. According to both The Gospel of Matthew and The Gospel of Mark, Jesus was the victim of acts of false witness committed during his night time trial before the Sanhedrin. In the words of

196 See p. 126 n. 182 above. 197 Contrast Ambrose, De officiis, at p. 100 n. 23 above: ‘Si tamen periurium posset dici, quod ebrius inter uina iurauerat.’ 198 Jerome, In Hieremiam, 4.57.2, ed. Reiter, CCSL 74, p. 223: ‘Cum enim semel se tradiderint falsi doctores mendaciis atque periuriis et mortibus deceptorum, non pedetemptim nec considerato gradu, sed praecipites currunt ad interitum et suum et eorum, quos deceperint’ (tr. Graves, Jerome, 143). 199 Jerome, In Isaiam, 13.48.1.2, ed. Mark Adriaen, CCSL 73A (Turhout: Brepols, 1963), 526: ‘Qui, inquit, iurastis in nomine Domini, non ut honoretis Deum; sed ut assumpto nomine faciatis iniuriam, dum eum testem uestri uultis esse mendacii.’ For the date of composition see Kelly, Jerome, 299. 129

The Gospel of Matthew, ‘And last of all there came two false witnesses: And they said: This man said, I am able to destroy the temple of God, and after three days to rebuild it.’200 The problem for Jerome and other interpreters was that in The Gospel of John, Jesus had in fact spoken those words, or others similar to them;201 in what sense, therefore, were the witnesses against Jesus ‘false’?202 In the commentary delivered to Eusebius, Jerome entertained multiple explanations, including the possibility that the two witnesses simply mistook the intended meaning of Jesus’ words.203 Nevertheless, seemingly dissatisfied with this explanation, Jerome went on to propose an interpretation which would have been familiar to any educated Roman familiar with the crimen falsi:

Moreover, even in the very words [the witnesses] use to accuse him falsely, they added and changed a few things (additis vel mutatis), thus making it a ‘fair’ false accusation, as it were. For the Savior had said: ‘Destroy this temple.’ But they change this (commutant) to say: ‘I can destroy the Temple of God.’ Jesus had said: ‘You destroy, not I.’ … Then they convert his words (vertunt) to: ‘and after three days to build it.’ They wanted to make it seem that he had really spoken of the Jewish Temple. But the Lord wanted to point to the living and breathing temple and had said: ‘And in three days, I will raise it up.’ It is one thing to build, another to raise up.204

200 Matt. 26:60–1: ‘novissime autem venerunt duo falsi testes et dixerunt hic dixit possum destruere templum Dei et post triduum aedificare illud’ (Vulgate). 201 John 2:19. 202 Jerome, In Matthaeum, 4.1384–5, ed. Hurst and Adriaen, CCSL 77, p. 259: ‘Quomodo falsi testes sunt, si ea dicunt quae Dominum supra dixisse legimus?’ 203 Jerome, In Matthaeum, 4.1386–7, ed. Hurst and Adriaen, CCSL 77, p. 259: ‘Sed falsus testis est qui non eodem sensu dicta intellegit quo dicuntur.’ 204 Jerome, In Matthaeum, 4.1388–96, ed. Hurst and Adriaen, CCSL 77, pp. 259–60: ‘[S]ed et in ipsis uerbis calumniantur et paucis additis uel mutatis quasi iustam calumniam faciunt. Saluator dixerat: Soluite templum hoc; isti commutant et aiunt: Possum destruere templum Dei. Vos, inquit, soluite, non ego. … Deinde illi uertunt: et post triduum aedificare illud, ut proprie de templo Iudaico dixisse uideatur. Dominus autem ut ostenderet animale et spirans templum dixerat: Et ego in triduo suscitabo illud. Aliud est aedificare aliud suscitare’ (tr. Thomas P. Scheck, St Jerome: Commentary on Matthew, The Fathers of the Church 117 [Washington, DC: The Catholic University of America Press, 2008], 306). 130

Notably, one of the lexical forms preferred by Jerome in this passage (variants of mutare: mutatis, commutant) was standard in late antique discussions of both forgery and public embezzlement,205 while Jerome had suggested that the falsification of Rufinus’s On First Principles, a literary text, constituted grounds for a criminal accusation of falsum.206 Once again, an Origenistic comment may have served as inspiration: a seventh-century translation of Origen’s Matthew commentary directs its reader, ‘See the cunning of the two false witnesses, making use of what persuasion … they forged (finxerunt) false witness.’207

Like many others, Jerome approached the biblical text from the perspective of his time and place. Unlike Ambrose, Cassian, and Origen himself, however, Jerome tended to interpret the spiritual significance of perjury and false witness harshly. His one comment which seemed more approving of certain perjuries notwithstanding,208 the legal context of perjury and false witness seems to have made a difference to Jerome. Although he sometimes echoed Origen’s permission of certain lies and falsehoods in other contexts, Jerome almost always assessed perjury and false witness severely – especially in the aftermath of the controversy with Rufinus. Throughout his mature prophetic commentaries, perjury in particular was consistently grouped with sins which Jerome classified as gravia or magna: sins which led to the spiritual and physical death of the sinner,209 and which could only be purged by ‘graver torments’.210 In The Commentary on the Book of Jeremiah, Jerome listed perjury together with robbery, murder, adultery, sacrilege, and idolatry

205 PS 5.25.5, 5.27.1. 206 See p. 109 n. 81 above. 207 Commentariorum series, 108, ed. Erich Klostermann, Origenes Werke, xi: Origenes Matthäuserklärung: Die lateinische Übersetzung der Commentariorum series, GCS (Leipzig: J. C. Hinrichs, 1933), 227: ‘[V]ide versutiam falsorum testium duorum, qua persuasione utentes … finxerunt testimonium falsum.’ For discussion of this text, see Alexander Souter, ‘The Anonymous Latin Translation of Origen on St Matthew (XXII 34 to the End), and Old-Latin MS q of the Gospels’, The Journal of Theological Studies 35/137 (1934): 63–6. 208 See p. 121 n. 153 above. 209 Jerome, In Hieremiam, 1–3. 210 Jerome, In Hieremiam, 1.30, ed. Reiter, CCSL 74, p. 22: ‘Qui uero leui peccatorum sorde maculatus est, leuioribus purgatur monitis. Porro peccata grauia, quae ad mortem trahunt … grauioribus tormentis indigent’ (tr. Graves, Jerome, 14). 131

or heresy, twice.211 In The Commentary on the Book of Micah, he listed perjury with fornication, greed, and murder.212 In The Commentary on the Book of Habbakuk, Jerome listed it with greed, luxuria, anger, slander, and theft.213 Such ‘lists of sins’ dated back to the New Testament era,214 yet these late antique catalogues differed from their ancient forebears in significant ways. By contrast to the list of sins in The First Letter to Timothy,215 the sins Jerome included were perceived as properly Christian problems, plaguing an empire-wide church: ‘There is a barrenness of virtue and divine favour in the churches because of adultery and because of lying or perjury.’216 Furthermore, such lists were evidently popular with members of the clerical hierarchy, like Eusebius – who had been ordained to the priesthood – who could use these texts for instructional purposes. In this way, Jerome’s concerns might reach a wider audience, beyond the circle of his literate friends and acquaintances.217 Most importantly for us, such lists of sins now reliably included perjury – at least when Jerome and Augustine were the compilers – where a classical-era author might have excluded it.218

Indeed, the peccatization of perjury had disciplinary implications even from Jerome’s point of view. Although his surviving writings never express an opinion of the Felician perjury scandal, or of the suitability of human punishments for the kind of perjury in which he himself was implicated, Jerome’s commentaries do imply that various ecclesiastical sanctions were appropriate. The ‘graver torments’ referred to in The Commentary on the Book of Jeremiah alluded

211 Jerome, In Hieremiam, 2.33.2, 2.34.2, ed. Reiter, CCSL 74, pp. 76, 77: ‘furto, homicidio, adulterio, periurio, sacrilegio et cultu eorum deorum, quos nescias’; ‘furta, homicidia, adulteria, periuria, sacrilegium, hereseos adinuentio et omnia in ea scelera’. 212 Jerome, In Michaeam, 1.2. 213 Jerome, In Abacuc, 2.3. 214 Lyonnet, Sin, 48ff. 215 See 1 Tim. 1:9–11 and ch. 1, ‘Introduction’, pp. 23, 25–6. 216 See p. 111 n. 89 above: ‘[Q]uoniam propter adulteria et mendacia siue periuria uirtutum et donationum dei sterilitas in ecclesiis sit.’ 217 Jerome, In Hieremiam, praef., ed. Reiter, CCSL 74, p. 1: ‘Stamina tibi atque subtegmina et licia praeparabo, tu pulcherrimam uestem ipse conficito, ut non solum nos audire, sed et alios docere possis.’ For preaching by Augustine while he was still a priest, cf. p. 138 below. 218 For discussion of Jerome’s understanding of the gravity of sin, see Severino Visintainer, ‘La diversa gravità dei peccati’, in idem, La dottrina del peccato in S. Girolamo, Analecta Gregoriana 117 (Rome: Libreria Editrice dell’Università Gregoriana, 1962), 144–221. On classical approval for some perjuries and ‘officious lies’ more generally, cf. p. 29 n. 174. 132

to the church’s penitential discipline, which might be lighter or more burdensome depending on the offence and the offender.219 In his Commentary on the Book of Zechariah, where the prophetic text records a vision of a flying scroll, condemning both thieves and perjurors,220 Jerome implied that unrepentant lay perjurors ought to be suspended from communion involuntarily. In an early use of the ecclesiastical ‘two swords’ imagery, Jerome explained: ‘All sinners amongst the people die by the sword – not, to be sure, a physical sword … but a spiritual one, by which those who do not perform penance are to be struck.’221 Similarly, in a letter to a priest in southern Gaul, Jerome stated explicitly that theft, murder, pillage, and perjury were all sins subject to ‘repentance’ (paenitudo), after they had been committed.222 Just as Jerome and Rufinus exchanged their allegations of perjury primarily in public, such penance or repentance was also carried out in public, before the eyes of the bishop and the entire Christian community. While specific penitential rituals might vary from community to community,223 the visibility of the sinner proved to be a common theme. According to one sermon by Augustine, preached to his congregation at Hippo around the time of Easter in c.412–13, ‘There are a great many penitents here; when hands are laid on them, there is an extremely long line.’224 ‘Some people’, the bishop continued, ‘have [even] asked for a place amongst the penitents themselves’, while others were placed there involuntarily by the bishop.225 Given the ubiquity of oath taking in Late Antiquity, and given Augustine’s

219 See p. 131 n. 210 above: ‘leuioribus purgatur monitis … grauioribus tormentis indigent’.

220 Zech. 5:1–4. 221 Jerome, In Zachariam, 1.5, ed. M. Adriaen, CCSL 76A (Turnhout: Brepols, 1970), 786–7: ‘Gladio enim interibunt omnes peccatores populi, non utique gladio corporali … sed gladio spiritali, quo percutiendi sunt qui non egerunt paenitentiam.’ On the development of ‘two swords’ theology, see Lester L. Field, Jr, Liberty, Dominion, and the Two Swords: On the Origins of Western Political Theology (180–398) (Notre Dame: The University of Notre Dame Press, 1998). 222 Jerome, Epistulae, 55.2, ed. Hilberg, CSEL 54, p. 488. 223 Cf. e.g. the rituals prescribed by the canons of Ancyra, at p. 105 nn. 51–5 above. 224 Augustine, Sermones, 232.8, ed. J.-P. Migne, PL 38 (Paris, 1841), col. 1111: ‘Abundant hic poenitentes: quando illis imponitur manus, fit ordo longissimus’ (tr. Edmund Hill, The Works of Saint Augustine: A Translation for the Twenty-First Century, iii: Sermons: (230–272B) on the Liturgical Seasons [New Rochelle: New City Press, 1993], 28). 225 Augustine, Sermones, 232.8, ed. Migne, PL 38, col. 1111: ‘Aliqui ipsi sibi poenitentiae locum petierunt; aliqui excommunicati a nobis in poenitentium locum redacti sunt’ (tr. Hill, Works, iii, 28). On public penance in Late Antiquity and its potentially punitive aspects, see e.g. Julia Hillner, Prisons, Punishment, and Penance in Late Antiquity (Cambridge: Cambridge University Press, 2015). 133

sermons on oaths and perjuries on other occasions,226 one wonders if any perjurors or false witnesses numbered amongst these penitents.

For Jerome, perjury and false witness played multiple roles throughout his life and works. To be sure, these offences posed exegetical problems, which the biblical commentator took up over the course of his career. The Book of Jeremiah’s exhortation to oath taking with truth, judgment, and justice, helped to solve the problem of Christ’s prohibition of oaths, while the late Roman experience of the crimen falsi shed light on the report of the false witnesses in The Gospels of Matthew and Mark.227 Nevertheless, as Jerome’s characterization of the false witnesses as forgers suggests, perjury and false witness were not only problems for biblical interpretation, but also practical difficulties besetting an ecclesiastical career. Like many other Romans of his era, Jerome assumed that perjuries were often criminal offences, for which he himself might have been prosecuted as a result of the controversy with Rufinus. At the same time, perjury was also an offence which could bring forth ecclesiastical sanctions, as with the deposition of the Felician clergy in Rome and with the anonymous laypeople who Jerome’s biblical commentaries suggested were appropriate candidates for penance.228 Throughout his career, a certain tendency to assess perjuries and false testimony more severely is observable, with the Origenist controversy of 401– 2 having represented a decisive moment. In the apparent view of Jerome and Rufinus’s audiences, perjury was a grave enough sin that allegations of perjury could constitute a serious rhetorical strategy. Perjuries both real (of the oath of 385) and imagined (of the oath in Jerome’s dream vision) threatened to derail the Bethlehem monk’s career, and Rufinus associated perjury with heresy when he solemnly anathematized the Origenistic dogma periurii.229 As a type of heterodox teaching, as rhetorical tools, and as sins leading to penance or deposition from office, perjuries were becoming peccatized in the theology and discipline of the late fourth-century church.

226 See e.g. Augustine, Sermones, 180. 227 See pp. 125, 129–31 above, respectively. 228 See pp. 132–3. 229 See p. 122 n. 160. 134

8 Perjury and False Witness in the Life and Thought of Augustine of Hippo

As with Jerome, the peccatization of perjury is observable in the works of his younger contemporary, Bishop Augustine of Hippo. Unlike Jerome, however, whose experiences of perjury and false witness were those of an individual theologian and polemicist, Augustine was in a position to impose penance, and to act as the ruler and judge of his Christian community at Hippo.230 Indeed, Jerome himself alluded to this difference between the two men on at least one occasion, writing when they disagreed that Augustine ‘ha[d] to promulgate [his] judgment and draw all [his] fellow bishops to [his] point of view’, while Jerome himself spent most of his time in individual scholarship and asceticism.231 Like Jerome, Augustine was of provincial, though North African, origin,232 and educated in one of the empire’s great urban centres, Carthage.233 By contrast to the path that Jerome’s career took, Augustine’s ordination to the priesthood, in 391, was rapidly followed by his elevation to the episcopate, in c.395–6.234 Augustine’s see, Hippo Regius in , was a coastal town dominated by the local landowning class,235 whose legal and moral problems brought Augustine face to face with the practical difficulties of oath taking, perjury, and false witness. In the late , for example, one of Augustine’s landlords, a certain Publicola, requested the bishop’s opinion on the validity of oaths sworn by his hired, non-Christian labourers.236 At the same time, Augustine’s immense reputation and Hippo Regius’s position as a

230 See p. 133 nn. 224–5 above; see also John C. Lamoreaux, ‘Episcopal Courts in Late Antiquity’, The Journal of Early Christian Studies 3/2 (1995): 143–67, and Noel Lenski, ‘Evidence for the Audientia episcopalis in the New Letters of Augustine’, in Ralph W. Mathisen, ed., Law, Society, and Authority in Late Antiquity (Oxford: Oxford University Press, 2001), 83–97. 231 Jerome, Epistulae, 112.5, ed. Hilberg, CSEL 55, p. 372: ‘[T]u ut episcopus in toto orbe notissimus debes hanc promulgare sententiam et in adsensum tuum omnes coepiscopos trahere; ego in paruo tuguriunculo cum monachis, id est conpeccatoribus meis, de magnis statuere non audeo, nisi … me maiorum scripta legere et in commentariis secundum omnium consuetudinem uarias ponere explanationes.’ 232 Augustine, Confessiones, 2.3. 233 Augustine, Confessiones, 2.3, 3.1–12. 234 See e.g. Allan Fitzgerald, ‘When Augustine Was a Priest’, Augustinian Studies 40/1 (2009): 37–48. 235 William E. Klingshirn, ‘Cultural Geography: Roman North Africa’, in Mark Vessey, ed., A Companion to Augustine (Oxford: Oxford University Press, 2012), 30–2, 38–9. 236 Augustine, Epistulae, 46–7. For discussion see Kevin Uhalde, ‘Barbarian Traffic, Demon Oaths, and Christian Scruples (Aug. Epist. 46–7)’, in Ralph W. Mathisen and Danuta Shanzer, eds, Romans, Barbarians, and the 135

coastal town inspired Christian communities all around the Mediterranean to seek out Augustine’s opinions and advice. In 420, a lay aristocrat from the , one Consentius, encouraged Augustine to intervene in the heresy and perjury case of a Spanish monk whom the nobleman patronized, Fronto.237 Thanks to the survival of much of Augustine’s correspondence, including the administrative letters discovered by Johannes Divjak in the late 1970s, we are able to see that the bishop of Hippo addressed instances of perjury and false witness on no fewer than five separate occasions.238 Even more emphatically than Jerome, Augustine negatively assessed perjury and false witness with consistency.

Famously, the bishop of Hippo opposed all acts of deliberate falsehood, a position which distinguished his teaching not only from the ‘tradition on lying’ represented by Origen, but also from the exegesis of Jerome, to whom the legal context of perjury and false witness appears to have made a difference.239 Indeed, Augustine repeatedly identified God with ‘truth’, and this ‘mystique of truth’, to borrow Boniface Ramsey’s words, informed the bishop of Hippo’s numerous statements on lies and falsehoods, including perjuries and false testimony.240 In 386, when Jerome brought forth his Commentary on the Epistle to the Galatians, this work initiated what proved to be one of the best known and most contentious exchanges between the two church fathers. According to Paul’s epistle, in which the apostle made some of his most important contributions to the debate over the status of Mosaic law,241 the apostle Peter was criticized for taking his meals in common with the Gentile converts, and desisted from this practice accordingly. At Antioch, Paul rebuked him, asking ‘by what right dost thou bind the Gentiles to live like Jews?’242 In Jerome’s interpretation, this scene of apparent disagreement between the apostles had actually been staged beforehand, in order to give reassurance to the competing groups of Christians

Transformation of the Roman World: Cultural Interaction and the Creation of Identity in Late Antiquity (Farnham: Ashgate, 2011), 253–62. 237 Augustine, Epistulae nuper in lucem prolatae, 11. 238 Augustine, Epistulae, 62–3, 125–6, 250; Epistulae nuper in lucem prolatae, 11, 18. 239 Ramsey, ‘Two Traditions’, and see p. 131 above. 240 Ramsey, ‘Two Traditions’, 511; see e.g. Augustine, Confessiones, 3.6.10, 7.10.16, 10.40.65; De mendacio, 19. 241 Cf. ch. 1, ‘Introduction’, pp. 25–6. 242 Gal. 2:14: ‘quomodo gentes cogis iudaizare’ (Vulgate). For the date of Jerome’s commentary, see P. Nautin, ‘La date des commentaires de Jérôme sur les épîtres paulinnienes’, Revue d’histoire ecclésiastique 74/1 (1979): 5–12. 136

to whom the various apostles preached. ‘When the Apostle Paul saw the grace of Christ in peril,’ Jerome explained, ‘the fighter in him employed a new battle tactic … acting in public as if he were contradicting Peter, so that the Gentiles might be protected by his actions.’243 This ‘expedient’ and ‘temporary deception’ (utilem … simulationem … in tempore) alarmed Augustine, who set forth his own interpretation of these events in a series of letters, treatises, and sermons delivered throughout the 390s. Writing first to Jerome himself, Augustine ‘admitt[ed]’ that the monk’s ‘defence of a lie le[ft Augustine] in more than a little pain’.244 In his follow-up treatise On Lying, completed in 395, Augustine noted that Paul could not have been dissimulating, since the account preserved in The Epistle to the Galatians was supported by an oath:

[T]hey do not realize that they are casting upon the Apostle Paul not only the charge of lying but also that of perjury in the teaching of religion, that is, in the Epistle wherein he preaches the Word of God. There, before he begins his narration, St. Paul says: ‘Now in what I am writing to you, behold, before God, I do not lie’ [Gal. 1:20].245

Remarkably, this exegetical debate with Jerome helped Augustine to fashion one of his most consistent arguments on the subject of perjuries. As Jerome would later ask in his Commentary on the Book of Jeremiah, ‘How is it that the Gospel prohibits us from swearing?’ –

243 Jerome, Ad Galatas, 1.2.11–13, ed. Giacomo Raspanti, CCSL 77A (Turnhout: Brepols, 2006), 52–4: ‘Cum itaque uidisset apostolus Paulus periclitari gratiam Christi, noua bellator eius usus est arte pugnandi … quasi in publico contradicens, ut ex eo quod Paulus eum arguens resistebat hi qui crediderant ex gentibus seruarentur’ (tr. Andrew Cain, St Jerome: Commentary on Galatians, The Fathers of the Church 121 [Washington, DC: The Catholic University of America Press, 2010], 105–6). 244 Augustine, Epistulae, 28.3.3, ed. A. Goldbacher, CSEL 34/2 (Vienna: Tempsky, 1895), 107: ‘Ibi patrocinium mendacii susceptum … fateor, non mediocriter doleo’ (tr. Roland Teske, The Works of Saint Augustine: A Translation for the Twenty-first Century, ii: Letters: 1–99 [Hyde Park, NY: New City Press, 2001], 92). 245 Augustine, De mendacio, 21, ed. J. Zycha, CSEL 41 (Vienna: Tempsky, 1900), 465: ‘In quo non uident non solum mendacii crimen, sed etiam periurii se obicere apostolo in ipsa doctrina pietatis, hoc est in epistula, in qua praedicat euangelium; ibi quippe ait, priusquam ista narraret: “quae autem scribo uobis, ecce coram deo quia non mentior”’ (tr. Mary Sarah Muldowney, Saint Augustine: Treatises on Various Subjects, The Fathers of the Church 16 [Washington, DC: The Catholic University of America Press, 1952], 109). On the dating of the On Lying, see Maria Bettetini, ‘Il De mendacio: Bugie ed ermeneutica’, in Carlo Natali, ed., De mendacio, Contra mendacium di Agostino d’Ippona, Lectio Augustini 13 (Rome: Città Nuova Editrice, 1997), 34. 137

since Paul manifestly swore an oath in the passage just referred to.246 During this same time period, while Augustine was still a priest,247 he prepared a Commentary on the Sermon on the Mount, in which the bishop-to-be took up this question enthusiastically. Perhaps the text was based on the priest’s preaching, on behalf of the ageing bishop of Hippo; or perhaps it was intended to supplement his sermons, either for the bishop himself or for other literate members of the Hipponese congregation.248 Yet by contrast to the monk at Bethlehem, who would proceed to argue that Christ’s prohibition of oaths applied only to ‘swearing by creatures’, Augustine conceded the universally binding nature of Jesus’ teaching. Nevertheless, since the apostle Paul repeatedly swore,249 and perhaps since Augustine’s own community made frequent use of the oath,250 Augustine sought to explain Jesus’ prohibition in a different way. According to Augustine, Christ had prohibited all oath taking not because oath taking was essentially sinful – after all, even God swears in the Bible251 – but because the violation of an oath was such a serious sin. Rather than let his followers incur the exceptionally grave accusation of perjury, Jesus forestalled this eventuality by removing any occasion for it:

For, just as a man cannot speak a falsehood if he does not speak at all, so neither can he swear falsely if he does not swear at all. … The Lord’s prohibition of swearing is to be understood, therefore, as meaning that no one is to desire an oath as if it were something good, lest – through a habit engendered by the constant repetition of swearing – he gradually descend to false swearing. Accordingly, let a man restrain himself as much as he can.252

246 See p. 125 n. 178 above: ‘Et quomodo euangelium iurare nos prohibit?’ 247 See p. 135 n. 234 above. 248 Denis J. Kavanagh, ‘Introduction’, in Kavanagh, tr., Saint Augustine: Commentary on the Lord’s Sermon the Mount, with Seventeen Related Sermons, The Fathers of the Church 11 (Washington, DC: The Catholic University of America Press, 1951), 3–4. 249 See ch. 1, ‘Introduction’, pp. 31–2. 250 Uhalde, ‘Barbarian Traffic’. 251 ‘Non est ergo peccatum iurare? Durum est hoc dicere: et quoniam diximus Deum iurasse, quam blasphemum est hoc dicere?’ (Augustine, Sermones, 180, ed. Migne, PL 38, cols 972–3). 252 Augustine, De sermone Domini in monte, 1.17.51, ed. Almut Mutzenbecher, CCSL 35 (Turnhout: Brepols, 1967), 57–8: ‘Sicut enim falsum loqui non potest qui non loquitur, sic periurare non potest qui non iurat. … Ita ergo intellegitur praecepisse dominum ne iuretur, ne quisquam sicut bonum appetat iusiurandum, et assiduitate iurandi ad periurium per consuetudinem delabatur’ (tr. Kavanagh, Saint Augustine, 73–5). 138

In this way, Augustine solved the problem of Christ’s prohibition of oaths by heightening the guilt attached to perjuries and other lies. While Jerome would suggest this solution once,253 with Augustine it became a constant refrain, so that many of his interlocutors and audience members heard this argument in a variety of different contexts.254

To be sure, not all lies were morally equivalent in Augustine’s view. In the treatise On Lying, Augustine proposed an eightfold scheme of classification, which grouped various sorts of lies on the basis of ethical criteria. At the bottom of this list, in the position of the least objectionable falsehoods, Augustine placed lies which ostensibly harmed no one but preserved some person from impurity.255 At the top of his list, in the position of the most objectionable falsehoods – ‘[t]he first type of lie is a deadly one, which should be avoided and shunned from afar’ – Augustine placed lies told ‘in the teaching of religion’, such as Paul’s alleged act of dissimulation would have been.256 Fitting perjury and false witness into this scheme is difficult, since Augustine only alluded to the effect that the legal context of these offences might have on his moral calculus.257 Nevertheless, both the On Lying and other writings suggest that Augustine saw perjury in particular as belonging to the first class of lie, since the oath was inextricably bound up with religion, invoking God (or manifestations of God’s power) as witness. In his letter to Publicola, for example, Augustine argued that non-Christian oath formulas were licit, but he also argued that Christian perjury was more sinful than non-Christian perjury. The reason, the bishop explained, had to do with the sanctity of the oath: ‘For perjury is more blameworthy to the extent that the name by which one swears is more holy.’258 As we saw with the Origenist controversy,

253 Jerome, In Zachariam, 2.8, ed. Adriaen, CCSL 76A, p. 819: ‘qui enim non iurauerit, numquam poterit peierare’. 254 Augustine, Contra adversarium legis et prophetarum, 2; Contra Faustum, 19.23; De mendacio, 15.28; Enarrationes in psalmos, 88.1.4, 109.17; Epistulae, 47.2, 125.3, 157.4; Quaestiones in Heptateuchum, Deut. q. 12; Sermones, 180, 307. 255 Augustine, De mendacio, 14. 256 Augustine, De mendacio, 14, ed. Zycha, CSEL 41, p. 444: ‘Nam primum est ad euitandum capitale mendacium longeque fugiendum, quod fit in doctrina religionis’ (tr. Muldowney, Saint Augustine, 86). 257 Augustine, De mendacio, 14, ed. Zycha, CSEL 41, p. 445: ‘uelut si quispiam pecuniam alicuius iniuste tollendam sciens, ubi sit, nescire se mentiatur quocumque interrogante’. 258 Augustine, Epistulae, 47.2, ed. Goldbacher, CSEL 34/2, p. 130: ‘Quanto enim, per quod iuratur, magis est sanctum, tanto magis est poenale periurium’ (tr. Teske, Works, ii, 188). For Augustine’s insistence that oaths referred to divine 139

late antique authors frequently made use of oaths in order to solemnize their literary productions, and it is not clear that ‘teaching’ was a narrow enough concept that statements made on oath would be excluded.259 From the bishop’s perspective, the congregation at Hippo could legitimately expect to be told the truth, especially in matters of religion, and the oath was one, particularly conspicuous means of safeguarding that expectation. Perhaps ironically, this assessment had the result of reversing what one might assume to be the slightly greater weight attached to false witness in both the Decalogue and the New Testament.260 For Augustine, perjuries were always severely wrong, whereas false testimony could be somewhat less sinful, depending upon the situation.261

Of the five cases of perjury and false witness which Augustine addressed as bishop,262 three are only documented briefly, and can be summarized here. In c.402, Augustine wrote to the bishop of Milevis in Numidia, complaining of the behaviour of a certain deacon, Timothy. According to Augustine, Timothy had sworn an oath not to take his leave of Bishop Severus, remaining in the church where he served, located in Subsana.263 When we meet the deacon in Augustine’s letter, however, he appears to be under Augustine’s jurisdiction, and the bishop of Hippo must persuade the junior cleric that this transfer in jurisdiction does not involve any perjury on the deacon’s part.264 Approximately a decade later, in c.410–12, Augustine wrote to Bishop Auxilius of Nurco in Mauretania about a different kind of case. According to Augustine, the imperial comes Africae, one Classicianus, had complained to the bishop of Hippo that Auxilius had suspended both himself and his entire household from communion, wrongfully anathematizing numerous people when the

power, whether directly or indirectly, see e.g. Augustine, Contra adversarium legis et prophetarum, 2; De sermone Domini in monte, 1.51–2; Enarrationes in psalmos, 109.17; Epistulae, 157.4; Sermones, 180, 307. For similar concerns by Jerome, see p. 125 n. 181 above. 259 Cf. Jerome, Liber tertius, 32, ed. Lardet, CCSL 79, p. 103: ‘[S]i me periurum docueris, tu haereticus non eris.’ 260 See ch. 1, ‘Introduction’, pp. 23–5. 261 On the community’s ‘expectation’ not to be deceived, see pp. 153–4 below. For Augustine’s lesser aversion to some acts of false witness, cf. p. 139 n. 257 above (pertaining to the sixth class of lies, near the bottom of Augustine’s list). 262 See p. 136 n. 238 above. 263 Augustine, Epistulae, 62.2, ed. Goldbacher, CSEL 34/2, p. 225: ‘ut apud Subsanam Deo seruiret, erupit et iurauit a te [Seuero episcopo] omnino non recessurum’. 264 Augustine, Epistulae, 62.2, ed. Goldbacher, CSEL 34/2, p. 225: ‘Cumque illi aperuissemus non eum … periurii reum, si non per ipsum sed per te fieret.’ 140

comes had been fulfilling his duties.265 Nevertheless, the reason for which Classicianus was excommunicated and anathematized has been neglected by historians. According to Augustine’s letter, the comes had ‘c[o]me to the church accompanied by an entourage of a few men befitting his position of authority’ – apparently other imperial agents and soldiers – ‘and spoke with [the bishop] so that [he] would not … favour those persons who, by falsely swearing upon the Gospels, sought in the very house of faith a means to break their faith.’266 Seemingly, Classicianus was exercising his imperial policing powers against a group of alleged perjurors, possibly poor debtors whom Bishop Auxilius was sheltering.267 Finally, at an uncertain date, Augustine wrote to the church of Memblibanum, a Numidian town which cannot otherwise be identified. According to the letter, a candidate for the priesthood whom the inhabitants of this town had requested, a certain Gitta, could not be ordained, because Gitta was found to be guilty of sexual offences. Evidently, Gitta’s examination for the priesthood must have included the sworn testimony of a variety of persons, since Augustine notes that an unnamed woman, unless she committed perjury (peierat), provided credible evidence of misconduct on Gitta’s part.268

These three cases are tantalizing. Two of them involve local clergy; one involves a laywoman.269 Nevertheless, the remaining two cases pertinent to perjury and false witness in Augustine’s writings are much more amply documented, and will permit us to engage in the most fruitful analysis. In the second of these cases, in c.420, the Iberian aristocrat Consentius requested that Augustine intervene in the heresy and perjury dispute of a Spanish monk, Fronto. Thanks to the discovery of Divjak’s letters, we possess Consentius’s initial letter to Augustine270 in addition

265 Augustine, Epistulae, 250. This letter is more famous for the role it played in subsequent medieval controversies over unjust excommunications: see e.g. Georges Folliet, ‘Une collection anonyme “pro causa iniustae excommunicationis” des VII–VIIIe siècles’, Augustinianum 25/1–2 (1985): 295–309, and Bernard de Vregille, ‘Excommunications et validité des ordinations: Un dossier du XIIe siècle à Liège’, Revue Bénédictine 109/3 (1999): 391–3. 266 Augustine, Epistulae, 250.1, ed. A. Goldbacher, CSEL 57 (Vienna: Tempsky, 1911), 593–4: ‘[Q]uod uenerit ad ecclesiam apparitione paucorum suae potestati congrua comitatus et egerit tecum, ne … faueris eis, qui per euangelia peierando adiutorium uiolandae fidei in ipsa domo fidei requirebant’ (tr. Teske, Works, ii, 183). 267 Uhalde, Expectations, 39–40. See also ch. 2, ‘Criminalization’, p. 80. 268 Augustine, Epistulae nuper in lucem prolatae, 18, ed. Johannes Divjak, CSEL 88 (Vienna: Tempsky, 1981), 89. 269 For other examples of female oath takers, see pp. 93 n. 347, 150 n. 315; for further female witnesses, see pp. 201, 208 below. 270 Augustine, Epistulae nuper in lucem prolatae, 11. 141

to Augustine’s reply, which took the form of a general treatise, the Against Lying to Consentius.271 Like his earlier treatise On Lying, Augustine’s treatise Against Lying dealt with perjuries and false testimony mostly by implication, yet the additional context of Consentius’s letter helps us to understand the particular incidents which prompted Augustine’s reply. Furthermore, as we can tell from Fronto’s narrative which Consentius enclosed with his letter,272 clerical perjury was very much at issue. Similar to the Roman Felician clerics attested by Jerome, one of the witnesses in Fronto’s case, identified as Sagittius, bishop of Lérida, was evidently exposed in an act of testimonial perjury, for which he was tried (though subsequently exonerated) by a synod of his fellow bishops.273 Also like the Felician perjury scandal, this dispute originated with a concern over heresy. Sagittius and some of his fellow bishops and lay aristocrats were suspected supporters of , bishop of Ávila, who had been convicted and executed on a criminal charge of magic in 385.274 Unlike with the Felician clerics, however, we also possess canonical records which corroborate the underlying plausibility of Fronto and Consentius’s narrative. At a council convened in Toledo in c.400, some twenty years before Consentius’s intervention, a second Priscillianist bishop was explicitly condemned for perjury and deposed from his office.275 Such issues illustrate the kinds of cases which Bishop Augustine was compelled to address, and further illustrate that canonical sanctions for perjury existed in some parts of the western church no later than the beginning of the fifth century.

For Augustine, these problems first came to his attention with the receipt of Consentius’s original letter. The approximate date of this letter, in the winter of 420 or the spring of 421, is reasonably certain: Augustine records that he dispatched his response, the Against Lying, a little more than a year later, in the spring of 422.276 According to Consentius’s letter, Fronto had been

271 Augustine, Contra mendacium ad Consentium. 272 Augustine, Epistulae nuper in lucem prolatae, 11.2–23. 273 Augustine, Epistulae nuper in lucem prolatae, 11.20–1. 274 For background see Henry Chadwick, Priscillian of Avila: The Occult and the Charismatic in the Early Church (Oxford: The Clarendon Press, 1976). 275 Toledo I (a. 397–400), Exemplar definitivae sententiae translatae de gestis. 276 Augustine, Contra mendacium, 1.1, ed. J. Zycha, CSEL 41 (Vienna: Tempsky, 1900), 469: ‘emensus est annus … ut quomodocumque rescriberem, ne arridente iam tempore nauigandi perlatorem remeare cupientem diutius 142

driven from his monastery in Tarragona and was presently seeking refuge with the aristocrat in the Balearic Islands, where Consentius was based and hoped to win Augustine’s favour.277 Narrating in the first person, Fronto recounted the ecclesiastical charge of heresy that he had lodged against a local priest and one of the priest’s female relatives; the monk’s own efforts to obtain evidence against the pair; and the alleged perjury and false witness of several of the witnesses, including that of a neighbouring bishop, Sagittius of Lérida. According to Fronto, the accused priest had been in the possession of several heretical books, apparently the writings of Priscillian, which were examined and disposed of by Sagittius.278 Nevertheless, when Fronto accused the priest of heresy in the court of their metropolitan, Titianus of Tarragona, Sagittius came to this priest’s defence, committing perjury ‘in the sight of all the people, with the Gospels and everything holy as his witnesses’, insisting that the heretical writings had remained in his own episcopal archive and that the priest had had nothing to do with them.279 On the following day, Fronto’s prosecution was strengthened with the arrival of a third bishop, Syagrius of Osca, who had previously corresponded with Sagittius and knew the truth of the matter. Unbeknownst to Sagittius, Syagrius delivered this correspondence into Fronto’s hands, enabling the monk to expose Sagittius when the metropolitan’s court reconvened:

The next day came and, with all the people present in the court, I saw that the aforementioned sacks of lies [viz., Sagittius and his supporters] were breathing forth similar or even greater perjuries. Then I said, ‘Why, Sagittius … did you not recently send a letter of this sort to Syagrius?’

detinerem’. For a reconstructed chronology, see Michael Kulikowski, ‘The Career of the Comes Hispaniarum Asterius’, Phoenix 54/1–2 (2000): 135–9. 277 Augustine, Epistulae nuper in lucem prolatae, 11.1. On Consentius’s presence in the Balearic Islands, probably Minorca, see Scott Bradbury, ‘Introduction’, in Bradbury, tr., Severus of Minorca: Letter on the Conversion of the Jews (Oxford: The Clarendon Press, 1996), 57–69. 278 Augustine, Epistulae nuper in lucem prolatae, 11.2–3. 279 Augustine, Epistulae nuper in lucem prolatae, 11.16, ed. Divjak, CSEL 88, p. 63: ‘Ipse autem in conspectu totius populi et euangeliis et omnibus sacramentis testibus non semel sed saepius peierauit affirmans codices in archiuo ecclesiae suae iam ab illo tempore conditos permansisse quos Seuerus penitus nec uidisset’ (tr. Teske, Works, ii, 274). 143

… Hearing this, he not only denied everything and bound himself by repeated perjuries, but also stirred up the people to destroy me … until, when I produced the letter, he was proven guilty and fled from the courtroom and from his disgrace. When that happened, since Bishop Titian was pressed by great outcries from the people for his condemnation, he said that only many bishops could pass sentence upon the status of a bishop.

… It is well known that a council was held on this matter but that by the unbelievable influence on the part of all the truth was suppressed. In fact it was cried up in such a way that the sacrilegious were restored to communion and both the books and the proceedings were destroyed by fire.280

This narrative, communicated to Augustine and forming the basis of Consentius’s request, underscores the role that perjury could play in late fourth- and early fifth-century ecclesiastical disputes. To be sure, Fronto’s account is one sided; as the text’s most recent commentator has observed, ‘[T]here need be no objective truth at all behind Fronto’s accusations.’281 What is important is that Consentius considered that this narrative would be credible,282 and that such perjury accusations – even against sitting bishops – were represented as an ordinary feature of late antique ecclesiastical proceedings. In the present case, Sagittius of Lérida managed to escape being disciplined for his accused perjury, yet he was perceived as at risk for being so. In the trial conducted before Titianus of Tarragona, when Fronto produced the letter which Sagittius had solemnly denied sending, the bishop of Lérida reportedly faced ‘great outcries from the people for his condemnation’ (magnis ad damnationem eius populi vocibus). The onlookers thus pressured

280 Augustine, Epistulae nuper in lucem prolatae, 11.19–21, ed. Divjak, CSEL 88, pp. 65–6: ‘Ventum igitur in crastinum est astantibusque in iudicio cunctis populis, cum uidissem similia aut forte maiora praedictos mendaciorum folles spirare periuria, quid, inquam Sagitti … nonne tu ad Syagrium episcopum nuper tales litteras direxisti? Haec ille audiens non solum denegans omnia multiplicatis semetipsum periuriis conligabat, sed etiam ad perniciem meam … populos incitabat, donec prolatis a me litteris conuictus statim iudicium et opprobrium suum fugit. Quo facto cum episcopus Titianus magnis ad damnationem eius populi uocibus urgeretur, ait de episcopi statu non nisi multos episcopos ferre posse sententiam. … Initum super hac re deinceps constat fuisse concilium sed incredibili cunctorum gratia sic oppressam, immo sic uenditam ueritatem, ut et sacrilegis communio redderetur et … tam gesta quam codices incendio cremarentur’ (tr. Teske, Works, ii, 275–6). 281 Kulikowski, ‘Career’, 130. 282 ‘[C]redibile est’ (Augustine, Epistulae nuper in lucem prolatae, 11.24.1, ed. Divjak, CSEL 88, p. 68). 144

the metropolitan for a summary judgment, even though Sagittius was a witness and not the principal defendant in the case; if Fronto’s narrative is to be believed, Titianus succeeded in delaying a judgment only by appealing to a canonical principle, namely, that the presence of numerous bishops was required in order to condemn a fellow bishop.283 Remarkably, however, Titianus’s delay was not the end of the matter. As ‘is well known’, according to Fronto,284 a synod was convened in order to try Sagittius’s case, and what began as a heresy dispute was transformed into a perjury one. This second procedure evidently found in the bishop of Lérida’s favour, since ‘the sacrilegious were restored to communion’ (possibly implying that they had been banned from it during the interval?) and ‘both the books and the proceedings were destroyed by fire’ – preventing the case from being reopened.285 Nevertheless, even this synod was not supposed to be the end of the matter. According to Consentius’s letter, a Gallican bishop, Patroclus of , was now investigating the affair, for which Consentius requested the assistance of the bishop of Hippo.286

Despite Sagittius’s exoneration, not all accused perjurors were so lucky. Some twenty years previously, another alleged Priscillianist, Bishop Herenas or Herenias, was convicted of perjury and deposed from his office, at what came to be known within Visigothic canonical tradition as the first council of Toledo, probably held in the autumn of 400.287 At that time, a group of self- described Priscillianists, who had continued to venerate the executed Priscillian as a martyr, appeared before the council and solemnly renounced their alleged errors. On 6–7 September, in a

283 See e.g. Carthage (a. 390), c. 10. For the participation of onlookers in this and other judicial processes, see Michael Kulikowski, ‘Fronto, the Bishops, and the Crowd: Episcopal Justice and Communal Violence in Fifth-Century Tarraconensis’, Early Medieval Europe 11/4 (2002): 295–320. On summary judgment of perjurors and false witnesses in a secular context, see ch. 2, ‘Criminalization’, pp. 80, 95. 284 ‘[C]onstat’ (p. 144 n. 280 above). 285 See p. 144 n. 280 above: ‘tam gesta quam codices incendio cremarentur’. 286 Augustine, Epistulae nuper in lucem prolatae, 11.26.1, ed. Divjak, CSEL 88, p. 69: ‘Si dignanter admittis, audeo commonere, ut aliquam super hac re sancta ac uenerabilis paternitas tua ad beatissimum fratrem tuum Patroclum episcopum qui tuis ut comperi scriptis disiderat uisitari mittere epistolam iubeat.’ 287 The council’s editor, José Vives, provides an approximate date from 397 to 400 (Vives, ed., Concilios visigóticos e hispano-romanos, España cristiana 1 [Barcelona and Madrid: Consejo de investigaciones científicas, Instituto Enrique Flórez, 1963], 19). Nevertheless, manuscript tradition dates the conciliar acta to the consulship of Stilicho (i.e., to 400); while Pope Siricius is known to be deceased (d. 399), and the then-reigning bishop of Milan is considered as still alive (d. August 400). For discussion see Chadwick, Priscillian, 170–1. 145

document entitled ‘professions … against the Priscillianist sect’, a small group of clerics including the bishop of Astorga, the bishop’s son and fellow bishop, and a priest from their diocese formally condemned and anathematized the contents of both their own ‘Priscillianist’ writings and the writings of Priscillian himself.288 On 7 September, a larger group of clerics appear to have followed suit, while those who had failed to appear before the council were instructed to be received with mercy – pending their signature of a document issued by the council and ratification of this agreement by the pope and the bishop of Milan.289 Despite these reconciliations, however, four Priscillianist bishops and their clergy refused. Led by Bishop Herenas, three other bishops apparently repudiated the professions which had already been signed, while Herenas himself was deposed and removed on account of an unspecified perjury, which the canonical record does not describe but asserts was well established:

Herenas preferred to follow his clerics, who spontaneously, without having been asked, acclaimed Priscillian as a catholic and holy martyr, and he himself stated that [Priscillian] had been a Catholic until the end, suffering persecution from the bishops. … We have decreed that [Herenas], together with all of his clerics as much as with the various bishops, namely Donatus, Acurius, and Aemilius, who, withdrawing from their professions, have preferred to follow the assembly of the lost, be removed from the priesthood. It is established, even from his remaining words, that he lied with perjury, having been convicted by three bishops and also by many priests or deacons.290

288 Toledo I (a. 397–400), Incipiunt exemplaria professionum in concilio Toletano contra sectam Prisciliani. 289 Toledo I (a. 397–400), Exemplar definitivae sententiae translatae de gestis: ‘Reliqui … accepta forma a concilio missa, si suscripserint, etiam ipsi in caelestis pacis contemplatione consistant; expectantes pari exemplo quid papa, qui nunc est, quid sanctus Simplicianus Mediolanensis episcopus … rescribant.’ 290 Toledo I (a. 397–400), Exemplar definitivae sententiae: ‘Herenas clericos suos sequi maluerat, qui sponte, nec interrogati Priscillianum catholicum sanctumque martyrem clamassent atque ipse usque ad finem catholicum esse dixisset, persecutionem ab episcopis passum. … Hunc cum omnibus tam suis clericis quam diversis episcopis, hoc est Donato, Acurio, Aemilio, qui ab eorum professione recedentes, maluissent sequi consortium perditorum decernimus a sacerdotio submovendum, quem constaret etiam de reliquis verbis suis convictum per tres episcopos, multos quoque presbyteros sive diaconos cum periurio esse mentitum.’ 146

Throughout these disputes, Augustine’s own role proved to be minimal. If Augustine ever wrote to Bishop Patroclus in the case of Bishop Sagittius, the letter has not survived;291 moreover, Augustine’s treatise Against Lying clarifies that he would not intervene on Fronto’s behalf.292 Nevertheless, just as Rufinus’s solemn anathematization of the Origenistic dogma periurii illustrated a possible link between perjury and heresy, the Against Lying amplifies that connection, stereotyping perjury and false witness as the misbehaviours of heretics. According to the bishop of Hippo, Priscillianists such as Bishops Sagittius and Herenas ‘g[a]ve dogmatic sanction to lying’, and were ‘worse than all other heretics in doing so’. The Priscillianists ‘must be refuted, not imitated’, Augustine advised Consentius.293 On another occasion, writing to a Spanish priest closer in time to Herenas’s condemnation, Augustine summarized the beliefs and the practices of the Priscillianists in this way: ‘Those who have had experience of [the Priscillianists] and belonged to them … even quote the very words of this commandment: “Swear, perjure yourself, but do not disclose the secret.”’294 What basis this orthodox opinion of the Priscillianists had in historical fact remains unclear; Augustine’s perception may or may not have been accurate. Most of Priscillian’s own writings do not survive, though (intriguingly) one does seem to make reference to the perception that he was a liar.295 Nevertheless, Augustine appears to have found the perjuries of a useful argument, and contrasted them with the behaviour of the orthodox martyrs, who Augustine believed had not concealed their faith, but proclaimed it openly. Indeed, according to the Against Lying, Priscillianist opinion on perjury ‘dishonours the holy martyrs; nay, altogether

291 Cf. p. 145 n. 286 above. 292 On the contrary, Augustine implies that Fronto himself may have committed perjury: ‘[T]amquam si frater ille seruus Dei Fronto in his, quae tibi indicauit – quod absit – aliqua mentiretur’ (Augustine, Contra mendacium, 3.4, ed. Zycha, CSEL 41, p. 474). 293 Augustine, Contra mendacium, 2.2, ed. Zycha, CSEL 41, p. 471: ‘Redarguenda sunt ista, non imitanda; nec in eo malo debemus Priscillianistarum esse participes, in quo ceteris haereticis conuincuntur esse peiores’ (tr. Harold B. Jaffee, Saint Augustine: Treatises on Various Subjects, The Fathers of the Church 16 [Washington, DC: The Catholic University of America Press, 1952], 127). 294 Augustine, Epistulae, 237.3, ed. A. Goldbacher, CSEL 57 (Vienna: Tempsky, 1911), 527–8: ‘Hi, qui eos experti sunt et ipsorum fuerant … etiam uerba ipsa praecepti huius ista commemorant: “Iura, periura, secretum prodere noli”’ (tr. Teske, Works, ii, 138). 295 Priscillian of Ávila, Tractatus, 1, ed. Marco Conti, Priscillian of Ávila: The Complete Works (Oxford: Oxford University Press, 2010), 32: ‘[I]n oculis uestris sit omne quod uiuimus et constituti in fidei luce nulla tenebrosae conuersationis [cf. Isa. 9:12] secreta sectemur … ne quis in nos credens male alteris inueniabili errore peccaret, non recusantes quin ostenderemus ore quod credebamus in corde [Rom. 10:10].’ 147

removes the possibility of martyrdom’.296 Like the young Jerome’s earliest surviving piece of writing, which highlighted the value of truth telling to the woman falsely accused of adultery,297 Augustine’s letters and treatises on lying made rigorous demands of their readers. Employing an image which would reappear in medieval discourses around truth telling and perjury, Augustine exhorted Consentius to be ‘not a teacher of falsehood, but an advocate of truth’.298

Finally, by contrast to the Fronto affair, Augustine was intimately involved in a last case of alleged perjury, which took place in his own diocese of Hippo and partially within his own presence. In c.411, approximately ten years prior to the composition of the Against Lying, a scandal erupted when the Christian community at Hippo failed to ordain a popular candidate for ordination, the fugitive Roman aristocrat Valerius Pinianus.299 Like Ambrose of Milan and the prefect Symmachus,300 Pinianus and his wife, Melania the Younger, belonged to the highest reaches of Rome’s senatorial aristocracy. According to the hagiographical Life of Melania, the couple drew a reported annual of income of 120,000 gold solidi prior to their ascetic conversion;301 in Italy, they were allegedly able to manumit some 8,000 individual slaves, while in North Africa, they were able to donate an estate large enough for the support of two bishops to the church of Augustine’s native town, Thagaste.302 After Rome was sacked by the Visigoths in 410, Pinianus and Melania sought refuge with Augustine’s personal friend and fellow bishop, Alypius of Thagaste, and they visited Augustine himself during the course of 411. According to the bishop of Hippo’s near-contemporary account, his congregation demanded, in the middle of Mass, ‘with a frightful and most persistent outburst of shouting’, that Pinianus be ordained a priest.303 Perhaps

296 Augustine, Contra mendacium, 2.3, ed. Zycha, CSEL 41, p. 472: ‘Quae sententia sanctos martyres exhonorat, immo uero aufert sancta omnino martyria’ (tr. Jaffe, Saint Augustine, 128). 297 See p. 100 above. 298 Augustine, Contra mendacium, 2.3, ed. Zycha, CSEL 41, p. 474: ‘non mendacii doctor, sed ueritatis assertor’ (tr. Jaffe, Saint Augustine, 129). Cf. , Epistolae, 209; Walahfrid Strabo, Vita Otmari abbatis Sangallensis, 5. 299 On Valerius Pinianus see ‘Pinianus’, 2, in Jones, Martindale, and Morris, Prosopography, i, 702. 300 See p. 48 n. 50 above. 301 Gerontius, Vita sanctae Melaniae, versio latina, 15.1. 302 Palladius, Historia Lausiaca, 61.5; Gerontius, Vita sanctae Melaniae, versio latina, 20.3, 21.4. For discussion of this fortune, see Brown, Through the Eye, 295–7, 323–5. 303 Augustine, Epistulae, 126.1, ed. A. Goldbacher, CSEL 44 (Vienna: Tempsky, 1904), 8: ‘horrendo et perseuerantissimo clamorum fremitu’ (tr. Teske, Works, ii, 162). 148

hoping to benefit from Pinianus’s wealth and patronage,304 the assembled community prevailed upon Pinianus to swear an oath, promising to reside within the city of Hippo and to accept ordination in no other place.305 Nevertheless, Pinianus immediately departed,306 and Augustine addressed the ensuing perjury scandal in a small dossier of letters directed to Alypius and to Melania’s mother, Albina.307 These letters may have served a double purpose, functioning not only as personal correspondence but also as episcopal commonitoria, intended for conservation in the episcopal archive and for future production as evidence in court.308

Like Consentius’s record of Fronto’s travails, Augustine’s letters paint a vivid portrait of the conditions under which oaths might be sworn and perjuries incurred in the late fourth and early fifth centuries. According to Augustine, Pinianus swore his oath in church, during the liturgical celebrations, immediately before and after the dismissal of the catechumens.309 The on-site negotiations which led up to this oath were multiple, with the deacon having acted as a go-between. When Pinianus and Augustine proposed certain phrasing for the oath, these words were recited by the deacon; when an exception was proposed allowing for cases of ‘intervening necessity’, ‘there was immediately an outburst, and [the people] were displeased’.310 Once a formula had been agreed upon and committed to writing, Pinianus first repeated the terms orally, then signed the document in Augustine’s presence.311 Throughout these negotiations, there are repeated indications that public pressure and even intimidation compelled Pinianus to swear. When the fugitive aristocrat asked for an exception allowing him to depart in cases where the city of Hippo

304 Brown, Through the Eye, 324–5. 305 Augustine, Epistulae, 126.3–4, ed. Goldbacher, CSEL 44, p. 10: ‘si quando illi ad suscipiendum clericatum consentire placuisset, non nisi in ipsa Hipponiensi ecclesia consentiret’; ‘quibusnam uerbis comprehendi posset illa cum iuratione promissio propter necessitates inruentes, quae possent eum, ut abscederet, cogere’. 306 Augustine, Epistulae, 125.4, 126.6. 307 Augustine, Epistulae, 125–6. 308 Rita Lizzi Testa, ‘Un’epistola speciale: Il “commonitorium”’, in Franca Ela Consolino, ed., Forme letterarie nella produzione latina di IV–V secolo, con uno sguardo a Bisanzio (Rome: Herder, 2003), 53–89. 309 Augustine, Epistulae, 126.5. 310 Augustine, Epistulae, 126.4, ed. Goldbacher, CSEL 44, p. 11: ‘Nam cum eis uerba a diacono dicta recitarentur … ubi nomen interpositae necessitatis insonuit, continuo reclamatum est promissioque displicuit’ (tr. Teske, Works, ii, 163). 311 Augustine, Epistulae, 126.5, ed. Goldbacher, CSEL 44, p. 11: ‘Dixit ea, quae a diacono audita erant … continuoque scriptum subscribit.’ 149

was attacked, Augustine suggested that ‘[i]f … this were said to the people, we would have to fear (timendum) that we would be thought to be prophets of evil’, and therefore such language was omitted.312 Notably, Pinianus refused to leave Augustine’s side during these negotiations,313 and afterwards claimed that the oath had been coerced.314 Importantly, an involuntary oath was also considered to be invalid. As numerous surviving legal texts and oath formulas make clear, late antique oaths were valued as the free, spontaneous expressions of competent legal actors. Within the Ravenna papyri, for example, a late sixth-century female oath taker continued to acknowledge that she had been constrained by no outside power (nullius cogentis imperio), language which was likewise present in imperial constitutions.315 Indeed, Jerome and Origen’s discussions of the oath presumed a sufficient level of freedom for an oath to be well considered.316 Moreover, imperial authorities might well have taken Pinianus’s side in this dispute: fifth-century legislation upheld the complaints of clerics who claimed that they had been coerced into ordination.317

Despite these considerations, Augustine rejected Pinianus’s claim that his oath had been invalid. While Augustine did not deny that coercion invalidated an oath, implying that Pinianus had indeed sworn freely,318 Augustine did deny that the social pressure applied by the Christians of Hippo amounted to coercion. In his letter to Alypius, the bishop of Hippo set a high bar for what constituted coercion, citing the example of a classical Roman hero, Marcus Atilius Regulus. According to classical sources,319 Regulus was a consul and general during the (264–41 BCE), who was captured by the Carthaginians and released in order to facilitate a peace agreement between Rome and Carthage. In Cicero’s version of this story, Regulus swears an oath

312 Augustine, Epistulae, 126.4, ed. Goldbacher, CSEL 44, p. 10: ‘[S]ed si haec populo dicerentur, timendum esse, ne male nos ominari uideremur.’ 313 Augustine, Epistulae, 126.5. 314 Augustine, Epistulae, 125.4, 126.11. 315 Jan-Olof Tjäder, ed., Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700, i (Lund: C. W. K. Gleerup, 1955), no 20; cf. CTh 2.9.3 = CJ 2.4.41 (a. 395). 316 See pp. 126–8 above. 317 NMaj 11 (a. 460). 318 Cf. Augustine, Epistulae, 125.3. 319 Cicero, De officiis, 3.26–32; Valerius Maximus, Facta et dicta memorabilia, 1.1.14, 2.9.8; Aulus Gellius, Noctes Atticae, 7.3–4. 150

to return to the city of Carthage, in the event that he fails in his quest; when Regulus patriotically persuades the Senate to reject the peace, he voluntarily returns, facing both torture and death.320 ‘That famous Regulus, whoever he was,’ Augustine now argued, ‘had heard nothing in the [Christian] scriptures about the wickedness of a false oath … and yet he did not fear the most certain tortures and the example of a horrible death, so that he swore an oath and claimed that he was constrained by necessity.’321 From Augustine’s point of view, if a pagan leader like Regulus could honour his oath, sworn while imprisoned by an enemy and leading to his own death, then surely Pinianus, a Christian nobleman, could fulfil his oath to the citizens of Hippo:

With regard to what [Alypius] wrote, that is, that we should inquire among ourselves regarding the sort of oath that is extorted with violence, I beg you that our discussion may not obfuscate matters that are perfectly clear. For, if a servant of God were threatened with certain death so that he would swear to do something forbidden and wicked, he ought to have preferred to die rather than to swear.322

This argument may strike modern readers as extreme, yet Augustine’s opinion is understandable in the context of many of the oaths which we have seen in this dissertation. As we observed in our analysis of late Roman law, entry to both the late Roman army and the late Roman bureaucracy was regulated by oath, and many of these enlistments were obligatory. In the case of the Roman military, numerous soldiers were recruited through conscription, or because their fathers had served in the army before them;323 in the case of the late imperial bureaucracy, sons

320 Cicero, De officiis, 3.27, tr. Walter Miller, Cicero: On Duties, LCL 30 (Cambridge, MA: Harvard University Press, 1928), 376: ‘[I]pse Carthaginem rediit, neque eum caritas patriae retinuit nec suorum. Neque vero tum ignorabat se ad crudelissimum hostem et ad exquisita supplicia proficisci, sed ius iurandum conservandum putabat.’ 321 Augustine, Epistulae, 125.3, ed. Goldbacher, CSEL 44, p. 5: ‘Nescio quis ille Regulus nihil in scripturis sanctis de impietate falsae iurationis audierat … et tamen certissimos cruciatus et horrendi exempli mortem non, ut iuraret necessitate, pertimuit’ (tr. Teske, Works, ii, 159). 322 Augustine, Epistulae, 125.3, ed. Goldbacher, CSEL 44, p. 5: ‘Nam quod scripsisti, de genere iurationis uiolenter extortae ut inter nos requiramus, obsecro te, ne res lucidissimas disputatio nostra faciat obscuras. Si enim certa mors intentaretur, ut aliquid inlicitum ac nefarium seruus Dei se iuraret esse facturum, mori malle quam iurare debuerat’ (tr. Teske, Works, ii, 158–9). 323 See e.g. CTh 7.1.5 (a. 364), 7.22.1–12 passim, 12.1.18 (a. 329, 353, 326). 151

ordinarily followed their fathers into office,324 while special provisions like Theodosius’ oath against bribery were legislatively imposed.325 Similarly, in the case of the town councils, to which Augustine’s own father belonged,326 sons ordinarily succeeded their fathers, and decurions may well have pursued the deserting members of their class by means of the same tools, including accusations of perjury, with which soldiers and administrators pursued their own deserters.327 As a result, the empire of Augustine was both soldiered and administered by men whose oaths might be considered as involuntary, and Augustine generally accepted the legitimacy of such arrangements. In a dispute like that of Pinianus, reluctant or involuntary ordinations proved to be a staple feature of the late antique church. Perhaps most famously, in the Milanese deacon Paulinus’s Life of St Ambrose, ‘the mouths of all the people joined in the cry’ for electing Ambrose bishop.328 Ambrose himself had to be physically detained while attempting to flee the city.329 Indeed, Augustine’s own ordination to the priesthood in 395–6 may not have differed much from the attempted ordination of Pinianus in 411. According to Augustine’s biographer, Possidius of Calama, the people of Hippo physically ‘laid hands on’ Augustine (manu iniecta), and ‘brought him to the bishop for ordination, since this was what all wished’.330 Intriguingly, Augustine may have sworn an oath at that time, since he subsequently observed to his ordaining bishop, Valerius, ‘[Y]ou make the Lord and Christ my witness, of the innocence, charity, and sincere affection that

324 See ch. 2, ‘Criminalization’, pp. 63–4. 325 CJ 9.27.6 (a. 439). Indeed, by contrast to the perjured centurion Marcellus, the martyr Maximilian was executed for refusing to swear the military oath: see ch. 2, ‘Criminalization’, pp. 58–9 n. 122. 326 Possidius, Vita Augustini, 1. 327 See ch. 2, ‘Criminalization’, § 4, ‘Military and Administrative Perjuries’, passim. 328 Paulinus, Vita, 6.1, ed. Bastiaensen, Vite, 3, p. 60: ‘[T]otius populi ora conversa sunt adclamantis: “Ambrosium episcopum!”’ (tr. John A. Lacy, Early Christian Biographies, The Fathers of the Church 15 [Washington, DC: The Catholic University of America Press, 1952], 36). 329 Paulinus, Vita, 8.1, ed. Bastiaensen, Vite, 3, p. 62: ‘At ille cum videret nihil intentionem suam posse proficere, fugam paravit; egressus noctis medio civitatem, cum Ticinum se pergere putaret, mane ad portam civitatis Mediolanensis, quae Romana dicitur, invenitur.’ 330 Possidius, Vita, 4.1–2, ed. Bastiaensen, Vite, 3, p. 140: ‘[E]um ergo tenuerunt et, ut in talibus consuetum est, episcopo ordinandum intulerunt, omnibus id uno consensu et desiderio fieri’ (tr. Mary Magdeleine Mueller and Roy J. Deferrari, Early Christian Biographies, The Fathers of the Church 15 [Washington, DC: The Catholic University of America Press, 1952], 77). Cf. Brown, Through the Eye, 324. 152

you have concerning us, as if I cannot swear concerning all these things.’331 For Augustine and his congregants, the application of social pressure was no excuse for perjury.

At the same time, the Pinianus affair also provided an occasion for defining the oath and perjury. As with Jerome’s definition, this statement reappeared in later medieval canon law, and the influence of this conception can be detected in the legal tradition of Visigothic Spain.332 Nevertheless, whereas Jerome and Origen had emphasized the element of ‘judgment’ or discretion in swearing, offering what were essentially exegetical definitions,333 the context for Augustine’s definition was quite different. Here, Augustine had a particular dispute (or potential dispute) in mind, and he addressed his remarks to Bishop Alypius, who by contrast to Augustine had served as a trained and practising lawyer.334 Perhaps unsurprisingly, Augustine emphasized what Jerome would have called the ‘companion’ of justice in the act of swearing;335 from the bishop’s perspective, his congregants were at real risk of suffering injury at Pinianus’s hands. In his letter to Alypius, Augustine appeared to accept the definition of perjury that Alypius had proposed, and proceed to add his own comments and clarifications:

I certainly do not question that it is perfectly correct to say that the promise of an oath is fulfilled not according to the words of the person swearing the oath, but according to the expectation of the person to whom the oath is sworn and which the person who swears the oath knows. … For this reason they are perjurers who, even

331 Augustine, Epistulae, 21.6, ed. Goldbacher, CSEL 34/2, p. 53: ‘Sic autem mihi dominum et Christum testem facis innocentiae et caritatis et sinceri affectus, quem circa nos habes, quasi ego non de his iurare omnibus possum.’ On Augustine’s correspondence with the bishop who ordained him, see James J. O’Donnell, Augustine: A New Biography (New York: Ecco, 2005), 24–5. 332 See ch. 4, ‘Early Medieval Case Study’, pp. 190–1. 333 See pp. 125–7 above. 334 Augustine, Confessiones, 6.8.13, 6.10.16, 8.6.13. Augustine was careful to frame his allegation of perjury against Pinianus as hypothetical. At no point does he accuse Pinianus of perjury directly, and the bishop holds out the hope that Pinianus will return and fulfil his oath: ‘Ac per hoc periurus nec erit nec ab eis putabitur, nisi eorum expectationem deceperit’ (Augustine, Epistulae, 125.4, ed. Goldbacher, CSEL 44, p. 6). 335 Cf. pp. 127–8. 153

if they fulfil their words, fail to meet the expectation of those to whom the oath was sworn.336

Thus the bishop of Hippo ignored any conception of perjury which entailed no injured human party. The reasonable ‘expectation’ (expectatio) of the oath recipient was essential to an oath’s interpretation, and this ‘expectation’ was disappointed or deceived (deceperint) in the case of perjury.337 To my knowledge, this formulation is unique in both patristic and Roman legal literature; yet even Roman law had occasionally attempted to protect the understanding of the oath recipient. According to the jurist Ulpian, judicial oaths were valid only if they were sworn in a form which had been offered to the oath taker; otherwise, the oath taker simply ‘swore to himself’.338

So far as we know, Pinianus never fulfilled his oath, and was never ecclesiastically sanctioned for perjury. The following decade found him and his wife in Bethlehem, where they were entertained by Jerome and forwarded their greetings to Augustine.339 Nevertheless, as the cases of Bishops Sagittius and Herenas in Spain both illustrate, and as the case of the perjured Felician clerics likewise illustrates, Pinianus might well have been sanctioned, and Augustine’s letters produced as evidence against him.340 For both Jerome and Augustine, perjury and false witness were grave sins and ecclesiastical offences, able to derail ecclesiastical careers and entailing separation from the church for the impenitent. Peccatized, transformed into rhetorical tools, and even associated with Origenist and Priscillianist heresy, perjury and false witness dramatically increased their profile in the patristic literature of the Latin church. To a considerable extent, the writings of Jerome and Augustine reflected these developments, which proceeded independently of the church fathers’ personalities. As we have seen, the young Jerome had

336 Augustine, Epistulae, 125.4, ed. Goldbacher, CSEL 44, p. 6: ‘Illud sane rectissime dici non ambigo, non secundum uerba iurantis sed secundum expectationem illius, cui iuratur, quam nouit ille, qui iurat, fidem iurationis impleri. … Vnde periuri sunt, qui seruatis uerbis expectationem eorum, quibus iuratum est, deceperunt’ (tr. Teske, Works, ii, 159). 337 See p. 154 n. 336 above. 338 D 12.2.3.pr.: ‘sibi enim iuravit’. 339 Jerome, Epistulae, 143.2. 340 See p. 149 n. 308 above. 154

probably witnessed the deposition of perjured clerics from their offices, while Augustine’s most enduring position on perjury – that perjuries were so sinful, Christ had prohibited all oath taking – was shaped during the early years of his priesthood and episcopate.341 Nevertheless, both of these authors also contributed to the process of perjury’s peccatization, assessing the sin severely when they wrote, and framing definitions for these offences which would exert a lasting influence. Indeed, when Augustine described in a sermon what he called ‘the guilty mind’ (mens rea), later understood as a necessary criterion for criminality, he was describing an act of perjury: ‘What makes the difference is how the word comes forth from the mind. The only thing that makes a guilty tongue is a guilty mind.’342 Now that perjury and false witness had been peccatized as well as criminalized, rendered into non-trivial sins and justiciable offences in both ecclesiastical and secular communities, let us see how this synthesis of late Roman and patristic ideas played out in the case of one early medieval society: that of Visigothic Spain.

341 See pp. 137–9 above. 342 The entire passage reads: ‘Fac alium, putat falsum esse, et jurat tanquam verum sit, et forte verum est. Verbi gratia, ut intelligatis, Pluit in illo loco? interrogas hominem; et putat non pluisse, et ad negotium ipsius competit, ut dicat, Pluit … et jurat: et tamen pluit ibi … perjurus est. Interest quemadmodum verbum procedat ex animo. Ream linguam non facit, nisi mens rea’ (Augustine, Sermones, 180.2, ed. Migne, PL 38, col. 973; tr. Hill, Works, iii, 315). For discussion see e.g. Elizabeth Papp Kamali, ‘Felonia Felonice Facta: Felony and Intentionality in Medieval England’, Criminal Law and Philosophy 9/3 (2015): 397–421. 155

Chapter 4 An Early Medieval Case Study: Perjury and False Witness in the Visigothic Church and Kingdom

Some time during the second decade of the seventh century CE, a Visigothic Spanish king, (r. 612–21), either wrote or commissioned a work of , The Life and Martyrdom of St Desiderius.1 The work’s protagonist, a former bishop of Vienne in southern Gaul,2 had died several years previously in uncertain circumstances, generating comment on either side of the Pyrenees. At the Visigothic court, Desiderius seems to have been remembered for vigorously preaching against certain sins, notably perjuries, thought to be running rampant in the bishop’s native .3 Burgundy’s own former rulers, King Theuderic II (r. 595–613) and his elderly, Visigothic-born grandmother, Queen Brunhilda (d. 613),4 were alleged to be amongst the perjured, and criticism of their activities occupied centre stage in the Visigothic king’s narrative. At the hagiography’s central turning point, where the royal author undertakes to give an account of the bishop’s ‘sufferings’ and final martyrdom,5 Desiderius is represented challenging the royal pair:

When Theuderic and Brunhilda were seen not to be helping, but harming their realm, ruining rather than ruling it, to be full of vice, and, falling back into the sin of perjury, sacrilegiously abandoning the promises of their oath, treacherously not attempting to live up to it … the martyr of God, bishop and examiner of their sins, sounded forth the trumpet blast in the manner of the prophets and whole-heartedly took himself off to drive out all their sins. … But mortal threats did not break the martyr of God, nor did the wrath of perjurers weaken him.6

1 Sisebut, Vita vel passio sancti Desiderii, ed. Bruno Krusch, MGH SS rer. Mer. 3 (Hanover: Hahn, 1896), 630–7. 2 Karl Friedrich Stroheker, Der senatorische Adel im spätantiken Gallien (Tübingen: Alma Mater, 1948), no 102. 3 For the political implications of Desiderius’s remembrance, see Jacques Fontaine, ‘King Sisebut’s Vita Desiderii and the Political Function of Visigothic Hagiography’, in Edward James, ed., Visigothic Spain: New Approaches (Oxford: The Clarendon Press, 1980), 93–129. 4 Gregory of Tours, Historiae, 4.27. 5 ‘Nunc de passionibus eius … expediam’ (Sisebut, Vita, 15, ed. Krusch, MGH SS rer. Mer. 3, p. 634). 6 Sisebut, Vita, 15, ed. Krusch, MGH SS. rer. Mer. 3, pp. 634–5: ‘Cum non prodesse, sed obesse, et magis perdere quam regere Theudericus pariter et Brunigildis vitiis cernerentur infestis, atque labem periurii reserati et foedera sacramenti deserti, mente sacrilega perfidi ad non esse pertenderent … his Dei martyr malis inspector et pontifex more nempe prophetico clangore tubae personuit seseque totum pro depellendis erroribus eorum invexit. … [S]ed martyrem 156

Thus at least one early medieval monarch, King Sisebut, was prepared to publicly criticize his fellow rulers for their perjuries, at least in the context of a saintly bishop’s hagiography.7

Indeed, King Sisebut’s Life and Martyrdom of St Desiderius represents a new type of source for our thesis, illustrating the social and political importance that perjuries had acquired in the early medieval world. Up until this point, our knowledge of Mediterranean rulers’ attitudes towards perjuries and false testimony had to be mostly inferred, on account of ‘the silence of Roman law’ in particular.8 To take one example, a panegyric delivered in praise of the emperor Constantine at Trier in c.307–11 noted that perjuries ‘ought to be especially hateful’ to that emperor. Yet what Constantine himself thought – or, perhaps more importantly, what his administrators thought – must remain a matter for educated conjecture.9 By contrast, King Sisebut’s Life is a text which provides us with an overwhelmingly royal perspective on perjuries. Both the author of this work and those criticized for perjury within it belonged to the post-Roman ruling class, and even if Sisebut did not personally author the hagiography ascribed to him,10 the text circulated under his name and was probably intended for an official audience. Manuscript tradition evinces that the hagiography was preserved alongside other pieces of the king’s correspondence, including his letters to the Arian king of the Lombards (an exhortation to convert to Catholic Christianity) and to his own son (an exhortation on the religious life).11 As the late classical historian Jacques Fontaine has remarked, ‘This [circumstance] suggests that the Vita was preserved as an official document in the royal chancery’, and that the text’s values were those of

Dei nec comminatio mortalium fregit, nec ira perfidorum emolluit’ (tr. A. T. Fear, Lives of the Visigothic Fathers, Translated Texts for Historians 26 [Liverpool: Liverpool University Press, 1997], 9). 7 Fontaine interprets this criticism in the light of hagiographical traditions associated with Martin of Tours, themselves inspired by Old Testament prophetic literature (Fontaine, ‘King Sisebut’s Vita’, 99–100, 104, 115, 117). For comparison with the late antique ‘culture of criticism’, see pp. 46–8, 101–2 above. 8 See ch. 1, ‘Introduction’, § 1, ‘The Silence of Roman Law’, pp. 13–23. 9 Incerti panegyricus Constantino Augusto dictus, 6(7).21.7, ed. and tr. C. E. V. Nixon and Barbara Saylor Rodgers, In Praise of Later Roman Emperors: The Panegyrici Latini; Introduction, Translation, and Historical Commentary with the Latin Text of R. A. B. Mynors (Berkeley and Los Angeles: The University of California Press, 1994), 251, 583: ‘periuria … quae te maxime oportet odisse’. For discussion see ch. 2, ‘Criminalization’, p. 83. 10 Fontaine, ‘King Sisebut’s Vita’, 94 n. 2. 11 Epistolae Wisigoticae, 8–9. 157

the early seventh-century Visigothic monarchy.12 For what may be the first time in this dissertation, we are faced with a secular source, composed from a centralizing political perspective, which denounced perjuries in morally uncompromising language.13

These differences in perspective and style signal a new phase in the history of perjury and false witness. During the sixth and seventh centuries, as certain kings (both in Iberia and elsewhere) were suspected of perjury14 and other kings requested that their bishops formally release them from their oaths,15 perjuries entered the mainstream of a Latin legal tradition. As we saw in our analysis of late Roman law, the ordinary law code for seventh-century Spain, The Book of the Judges, contained a statute criminalizing perjuries in general, treating perjury, false witness, and forgery simultaneously, and combining both classical and post-classical approaches to these offences.16 At the same time, however, Visigothic church councils in particular made unique contributions to developing a western law of perjury. In the century and a half spanning the years 546–694, no fewer than sixteen ecclesiastical synods meeting on Iberian soil issued at least twenty- three canons and decrees dealing with different kinds of perjury explicitly.17 To be sure, such numbers are not exact; the acta for certain councils may not have survived,18 and there is no

12 Fontaine, ‘King Sisebut’s Vita’, 121. 13 On the ‘centralizing’ ambitions of the Visigothic monarchy, see e.g. Rachel L. Stocking, Bishops, Councils and Consensus in the Visigothic Kingdom, 589–633 (Ann Arbor: The University of Michigan Press, 2000), 29–30, 51–3, 85, 143. 14 Cf. e.g. Gregory of Tours, Historiae, 5.18. 15 Toledo VIII (a. 653), c. 2; Toledo XV (a. 688). 16 LV 2.4.14 (Antiqua); see ch. 2, ‘Criminalization’, pp. 93–5. 17 Lérida (a. 546), c. 7; II (a. 572), c. 1; Seville I (a. 590), c. 3; Seville III (aa. 620–4), c. 10 (for which see Bruno Dumézil, ‘Une source méconnue sur les conversions forcées du roi Sisebut: Le canon 10 du concile de Séville’, in Flocel Sabaté and Claude Denjean, eds, Chrétiens et juifs au moyen âge: Sources pour la recherche d’une relation permanente; Tables rondes à Carcassonne (23–25 octobre 2003) [Lleida: Editorial Milenio, 2006], 21–35); Toledo IV (a. 633), c. 75; Toledo V (a. 636), cc. 2, 7; Toledo VI (a. 638), c. 3, Exemplar iudicii inter Martianum et Aventium episcopos (for which see Felix Dahn, Die Könige der Germanen: Das Wesen des ältesten Königthums der germanischen Stämme und seine Geschichte bis zur Auslösung des karolingischen Reiches, vi: Die Verfassung der Westgothen, Das Reich der Sueven in Spanien [Leipzig: Breitkopf and Härtel, 1885], 613–41); Toledo VII (a. 646), c. 1; Toledo VIII (a. 653), c. 2; Toledo X (a. 656), c. 2; Toledo XI (a. 675), c. 9; Toledo XII (a. 681), cc. 9, 11; Toledo XIII (a. 683), cc. 1, 9; Toledo XV (a. 688); Toledo XVI (a. 693), cc. 9–10, Decretum iudicii ab universis editum; Toledo XVII (a. 694), cc. 7–8. 18 See e.g. Rachel L. Stocking, ‘Martianus, Aventius, and Isidore: Provincial Councils in Seventh-Century Spain’, Early Medieval Europe 6/2 (1997): 169–88. 158

guarantee that the acta for those councils which do survive are complete.19 Nevertheless, this body of primarily ecclesiastical legislation far surpasses the legislation on perjury to come down to us from the Roman world. Having first been criminalized in Roman law and then peccatized in Latin patristic literature, perjuries in the early Middle Ages tended to move from the periphery of social and legal concern to its centre.20

In the case of King Sisebut, The Life and Martyrdom of St Desiderius dwells on perjury and other falsehoods repeatedly. When Desiderius is elected bishop, according to the king, the bishop immediately begins ‘wean[ing] the litigious from their anger, [and] the false from their mendacity’.21 At least twice in his career, Desiderius comes into conflict with the royal house of Burgundy, whose members are likewise considered as guilty of various acts of judicial corruption. On the first occasion, the bishop is falsely accused of sexual offences, and tried by a synod of bishops convoked by Theuderic II. According to the royal author, ‘[The Devil] forged certain documents to incriminate the servant of the Saviour.’22 Calumny and false testimony are procured from the noblewoman Justa, who alleges that she was raped by Desiderius and agrees to make these accusations with Theuderic and Brunhilda beforehand;23 she later confesses her sin, , and is condemned to hell, ‘to burn forever among the flames of vengeance’.24 All of these episodes serve as preamble to the hagiography’s central drama, in which Desiderius is assassinated on Theuderic and Brunhilda’s orders. After the rulers reconcile with him briefly,25 the bishop resumes his criticism of the royal couple’s perjuries, described in the passage above. Remarkably, the

19 Both the records of Toledo VI’s Exemplar iudicii inter Martianum et Aventium episcopos (see p. 158 n. 17 above) and Toledo I’s Exemplar definitivae sententiae translatae de gestis (see ch. 3, ‘Peccatization’, pp. 145–6) were omitted from the main canonical collection of the Visigothic church. 20 For comparable developments in Gaul, see Ian Wood, ‘Disputes in Late Fifth- and Sixth-Century Gaul: Some Problems’, in Wendy Davies and Paul Fouracre, eds, The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986), 17–18. 21 Sisebut, Vita, 3, ed. Krusch, MGH SS rer. Mer. 3, p. 630: ‘removit ab ira letigiosum, a mendositate fallacem’ (tr. Fear, Lives, 2). 22 Sisebut, Vita, 4, ed. Krusch, MGH SS rer. Mer. 3, p. 631: ‘et adversus famulum salvatoris talia fraudis documenta fraudator abtavit’ (tr. Fear, Lives, 3). 23 Sisebut, Vita, 4. 24 Sisebut, Vita, 9, ed. Krusch, MGH SS rer. Mer. 3, p. 633: ‘semper arsuram ultricibus conflagrantibus flammis’ (tr. Fear, Lives, 6). 25 Sisebut, Vita, 10. 159

accusation is repeated three times: Theuderic and Brunhilda ‘f[ell] back into the sin of perjury’, labem periurii reserati; ‘abandon[ed] the promises of their oath’, foedera sacramenti deserti; and ‘treacherously [did] not [attempt] to live up to it’, perfidi ad non esse pertenderent.26 Appearing at the central turning point of the narrative, this ‘triple accusation of perjury’ underscored the seriousness of the Visigothic king’s allegations.27 In all probability, much of this language derived from Sisebut’s ecclesiastical advisers and entourage. In the same passage, where the Burgundian rulers are characterized as ‘not to be helping, but harming their realm, ruining rather than ruling it’,28 the text is most likely paraphrasing The Opinions of , the early seventh- century bishop who served as one of Sisebut’s most important correspondents and advisers.29

Indeed, such sources illustrate why Visigothic Spain makes an ideal choice for this early medieval case study. While Merovingian Frankish sources on perjury and false witness are better known amongst English-speaking audiences,30 the texts descending from the Visigothic church and kingdom can offer us exceptional insights. Perhaps most importantly, Visigothic kings and bishops were prolific legislators, issuing more surviving legislation than did kings and bishops in any other post-Roman successor state in the Latin-speaking west.31 Furthermore, Visigothic legislation exhibited an unusually high degree of continuity with the law of the late Roman empire, where I have argued that perjuries began to be criminalized. In 506, the Visigothic king Alaric II (r. 484–507) issued his Roman Law of the Visigoths, an abridgement and epitomization of The Theodosian Code and various works of classical and post-classical jurisprudence.32 In c.654 and again in 681, the Visigothic kings Recceswinth (r. 649–72) and Erwig (r. 680–7) issued and re-

26 See p. 156 n. 6 above. 27 Fontaine, ‘King Sisebut’s Vita’, 116 n. 3. 28 See p. 156 n. 6 above: ‘Cum non prodesse, sed obesse, et magis perdere quam regere’. 29 Isidore of Seville, Sententiae, 3.49.3, ed. Pierre Cazier, CCSL 111 (Turnhout: Brepols, 1998), 300: ‘Prodesse ergo debet populis principatus, non nocere, nec dominando premere, sed condescendo consulere.’ For discussion see Fontaine, ‘King Sisebut’s Vita’, 126. 30 See e.g. ch. 1, ‘Introduction’, pp. 6–7. 31 P. D. King, Law and Society in the Visigothic Kingdom (Cambridge: Cambridge Univesity Press, 1972), 21; cf. Chris Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400–800 (Oxford: Oxford University Press, 2005), 93–6. 32 John F. Matthews, ‘Interpreting the Interpretationes of the Breviarium’, Law, Society, and Authority in Late Antiquity, ed. Ralph W. Mathisen (Oxford: Oxford University Press, 2001), 11–32. 160

issued their own Book of the Judges, a territorially based law code which comprised more than two hundred individual statutes ascribed to named monarchs, and which ranged from a theoretical discourse on the nature of law33 to practical guidelines for the conservation of written records in episcopal archives.34 This was legislation whose ambitions were imperial in scale, yet Visigothic kings imitated their Roman predecessors in other ways, too. By the middle of the seventh century, Visigothic kings are thought to have established a relatively fixed residence at Toledo, which resembled other late antique capitals like Ravenna and Constantinople.35 The Visigothic monarchy made use of imperial imagery, adopting titles such as ‘divus’ and ‘Flavius’,36 and exacted countrywide oaths of allegiance – just as the emperor Caligula had done in the first century CE.37 This high quality of the Visigothic legal evidence makes Visigothic Spain an obvious candidate for any legal investigation of the early Middle Ages, and indeed we have already made use of these sources in our treatment of Roman law.38

Similarly, the development of Visigothic canon law offers certain parallels with the development of royal law. Although Visigothic church councils never met with any regularity, especially prior to the last quarter of the sixth century, when King Reccared I (r. 586–601) converted to Catholicism,39 the makers and compilers of Visigothic canons continued to look to

33 LV 1.1–2. 34 LV 12.3.28 (Erwig). For the contents of The Book of the Judges, see King, Law, 19; on the territoriality of these later codifications (which is not usually contested), see e.g. idem, ‘King Chindasvind and the First Territorial Law- Code of the Visigothic Kingdom’, in Edward James, ed., Visigothic Spain: New Approaches (Oxford: The Clarendon Press, 1980), 131–57. 35 Céline Martin, ‘Tolède, une petite Rome’, in eadem, La géographie du pouvoir dans l’Espagne wisigothique (Paris: Septentrion, 2003), 205–74. 36 Cf. Roland Steinacher, ‘Who Is the Barbarian? Considerations on the Vandal Royal Title’, in Walter Pohl and Gerda Heydemann, eds, Post-Roman Transitions: Christian and Barbarian Identities in the Early Medieval West (Turnhout: Brepols, 2013), 447. 37 Martin, La géographie, 353–61. For Caligula’s oath, see pp. 51 n. 71, 69 n. 184 above. 38 See ch. 2, ‘Criminalization’, § ‘Perjury, False Witness, and Forgery’, pp. 86–96. On the relative Romanitas of Visigothic law, see also Hagith S. Sivan, ‘The Appropriation of Roman Law in Barbarian Hands: “Roman–Barbarian” Marriage in Visigothic Gaul and Spain’, in Walter Pohl and Helmut Reimitz, eds, Strategies of Distinction: The Construction of Ethnic Communities, 300–800, TRW 2 (Leiden: Brill, 1998), 189–203; Olga Marlasca Martínez, ‘La regulación de la falsificación de monedas en el derecho romano y en la ley de los Visigodos’, Anuario de historia del derecho español 70 (2000): 405–22; and Joshua C. Tate, ‘Roman and Visigothic Procedural Law in the False Decretals of Pseudo-Isidore’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanon. Abt. 121/90 (2004): 510–19. 39 See e.g. Stocking, Bishops, 26–7, 37, 75. 161

models of the wider imperial church. Just as Dionysius Exiguus brought forth a Latin edition of the imperial canon law corpus in c.500,40 Isidore of Seville or his circle brought forth a Collectio Hispana, embracing both Iberian and Gallican councils in addition to the councils of the empire and papal decretals, in c.633.41 Two editions of this collection, from 681 and 694, respectively, come down to us today,42 and they attest at least two particularly intense periods of conciliar activity. In the middle of the 630s, following the reign of King Sisebut, the acta for different councils are preserved for every 1.67 years;43 in the 670s–90s, they are preserved for every 2.1 years.44 While these figures fall far short of the twice-annual provincial synods requested by the imperial council of Nicaea,45 Visigothic conciliar activity compares well with that of other regions in the post-Roman west – especially by the end of the seventh century.46 Moreover, at least some of this Visigothic conciliar activity aligned with the legislative priorities of Visigothic kings. Notably, both the Collectio Hispana and The Book of the Judges were re-issued in the same year, 681, with the support of the same monarch, Erwig.47 As with royal legislation, the scale of canonical legislation could be ambitious. In 633, when Isidore of Seville presided at the ‘national’ fourth council of Toledo, he and his fellow bishops adopted canons requiring at least once-annual

40 See ch. 3, ‘Peccatization’, p. 106. 41 Lotte Kéry, Canonical Collections of the Early Middle Ages (ca 400–1140): A Bibliographical Guide to the Manuscripts and Literature (Washington, DC: The Catholic University of America Press, 1999), 61–7. 42 Kéry, Canonical Collections, 61–7. 43 Toledo IV (a. 633), Toledo V (a. 636), Toledo VI (a. 638). 44 Toledo XI (a. 675), Braga III (a. 675), Toledo XII (a. 681), Toledo XIII (a. 683), Toledo XIV (a. 684), Toledo XV (a. 688), Saragossa III (a. 691), Toledo XVI (a. 693), Toledo XVII (a. 694). Cf. Roger Collins, Early Medieval Spain: Unity in Diversity, 400–1000 (2nd ed., Houndmills: Macmillan, 1995), 118. For a third period of intense conciliar activity, mostly unattested by the Hispana, see Stocking, Bishops, ch. 3, ‘Collaboration, Suspicion, and Innovation in the Provinces’, pp. 89–117. 45 Nicaea (a. 325), c. 5. 46 See e.g. Walter Ullmann, ‘Public Welfare and Social Legislation in the Early Medieval Councils’, in G. J. Cuming and Derek Baker, eds, Councils and Assemblies: Papers Read at the Eighth Summer Meeting and the Ninth Winter Meeting of the Ecclesiastical History Society, Studies in Church History 7 (Cambridge: Cambridge University Press, 1971), 3. 47 On the significance of 681 – a moment of dynastic crisis – see Collins, Early Medieval Spain, 122, 127. 162

provincial synods,48 permitting no adjournment until all of the council’s business had been concluded,49 and regulating the exaction of the fidelity oath to the king.50

All this mass of legislation offers fertile hunting ground to the historian of perjury and false witness. Crucially, the Visigothic legal corpus includes not only normative legislation, which described how society ought to be governed, but also a handful of records for particular perjury disputes. On at least three occasions, in 638, 673, and 693, a combination of clerical and lay offenders were disciplined for perjury in both secular and ecclesiastical proceedings. In 638, at the sixth council of Toledo, two deacons from southern Iberia were either penanced or deposed under canons for injudicious oath taking and conspiracy, while multiple laypeople were exposed in potentially false, perjurious testimony.51 In 673, a military tribunal presided by King (r. 672–80) sentenced a secular nobleman, the dux Paulus, for the perjury of his royal fidelity oath;52 and in 693, the bishop of Toledo was deposed from office and suspended from communion, likewise for the perjury of his royal fidelity oath.53 Yet as we saw with the deposition of the Priscillianist bishop Herenas in c.400,54 such cases were not unprecedented in early medieval Iberia. On the contrary, Iberia’s Visigothic rulers had been swearing oaths and incurring perjuries for many centuries, prior to the disappearance of imperial rule. In 376, the Roman historian Ammianus Marcellinus reports that the Visigothic armies ‘t[ook] oath together according to their custom’ in the run-up to the battle of Adrianople.55 Gothic rulers are likewise attested to have sworn oaths during the periods of their settlements in southern Gaul and Italy,56 and King Alaric transferred the legal provisions for oath taking on Roman emperors to Visigothic kings when he

48 Toledo IV (a. 633), c. 3. 49 Toledo IV (a. 633), c. 4. 50 Toledo IV (a. 633), c. 75. 51 Toledo VI (a. 638), Exemplar iudicii inter Martianum et Aventium episcopos. 52 , Historia Wambae regis, Iudicium in tyrannorum perfidiam promulgatum. 53 Toledo XVI (a. 693), cc. 9–10, Decretum iudicii ab universis editum. 54 See ch. 3, ‘Peccatization’, pp. 145–6. 55 Ammianus Marcellinus, Res gestae, 31.7.10, tr. John C. Rolfe, Ammianus Marcellinus: History, Books 27–31, LCL 331 (Cambridge, MA: Harvard University Press, 1939), 430–1: ‘inter eos ex more iuratum est’. 56 Herwig Wolfram, History of the Goths, tr. Thomas J. Dunlap (Berkeley and Los Angeles: The University of California Press, 1988), 108–9. 163

promulgated his Roman Law of the Visigoths in 506.57 Indeed, if my contention that perjuries began to be criminalized in Roman law is correct, then we may expect to see the consequences of that development precisely under the Visigoths, one of the more ‘Romanized’ of the ‘barbarian’ peoples.58

Indeed, this importance of the Visigothic evidence for perjuries and false testimony has been recognized on one recent occasion. In 2008, the Merovingian specialist Bruno Dumézil published a study of ‘Le crime de parjure dans l’Espagne wisigothique’, in the Collège de France’s volume Oralité et lien social au moyen âge: Parole donnée, foi jurée, serment.59 Focusing on the legislative evidence, especially Toledo IV’s lengthy, seventy-fifth canon regulating the royal fidelity oath,60 Dumézil argues that the unique place of perjury in the Visigothic kingdom was a function of the circumstances under which the Visigothic monarchy converted to Catholicism. From 587–9 onward, when Reccared and his followers finally abandoned through a series of solemn professions recorded at the third council of Toledo,61 the legitimacy of the Visigothic kings was intimately bound up with the support and consensus of the Catholic hierarchy.62 Furthermore, monarchs beginning with Sisebut attempted to cultivate religious unity by converting Iberia’s Jews, often forcibly, who tended to solemnize their own acts of conversion by means of oath taking.63 Remarkably, Sisebut went so far as to legislatively curse any of his successors who failed to maintain his policies, a curse of which some of Sisebut’s successors, notably Erwig, were aware.64 For Dumézil, fidelity toward the Christian God and fidelity toward

57 CTh 2.9.3 (a. 395) = LRV 2.9.1 + Interp. 58 Wolfram, History, 14, 26, 135, 137, 229. With reference to law and legislation, see e.g. Wickham, Framing, 95; Collins, Early Medieval Spain, 28–30; and p. 161 n. 38 above. 59 Bruno Dumézil, ‘Le crime de parjure dans l’Espagne wisigothique’, in Marie-France Auzépy and Guillaume Saint- Guillain, eds, Oralité et lien social au moyen âge (Occident, Byzance, Islam): Parole donnée, foi jurée, serment, Monographies 29 (Paris: Collège de France, 2008), 27–42. 60 See p. 163 n. 50 above. 61 Toledo III (a. 589), In nomine Domini Ieus Christi. Item fidei confessio episcoporum, presbyterorum Gothicae gentis qui infra subscribserunt. 62 Dumézil, ‘Le crime’, 29ff. 63 See Dumézil, ‘Une source méconnue’, and pp. 171ff. below. 64 L.V. 12.2.14 (Sisebut); cf. Toledo XII (a. 681), In nomine Domini Flavius Ervigius rex sanctissimis patribus in hac sancta synodo residentibus. 164

the king were completely ‘confounded’ in Visigothic perspective,65 coinciding with a rhetorical ‘diabolization’ of perjuries unparalleled in early medieval sources.66 Nevertheless, Dumézil’s article declines to trace the precise origins or features of this movement toward ‘diabolization’, which can be better appreciated in light of the prior movements towards perjury’s criminalization and peccatization, described in the previous chapters.67

The remainder of this chapter will be divided in two parts. Instead of beginning with the legislative sources, which are ample, I will begin with a different variety of legal source: Visigothic private agreements and judicial records, which appear to have been frequently solemnized by oath.68 In particular, I will take as a case in point one of the oaths sworn by Jewish Christian converts, most likely delivered to the bishop of Toledo in the late winter or early spring of 681.69 Formulas like this one were probably composed and transcribed by clerics in minor orders, a group about whom we know little; yet although their names and personalities do not survive, they are most likely responsible for much of the ‘diabolization’ of perjury which Dumézil has suggested.70 In the second part of this chapter, I will then turn to the legislative evidence, particularly the conciliar canons and decrees where the more obvious innovation with respect to perjuries occurred. While the three perjury cases which I have enumerated71 are too detailed to treat in one place, I will select one, possibly more insightful example. In 638, the sixth council of Toledo tried and condemned an anti-episcopal conspiracy amongst the priests, deacons, and lesser clergy of the diocese of Écija in southern Iberia.72 According to the conciliar judgment, preserved in a Carolingian-era manuscript,73 several of the conspirators committed various acts of perjury and false witness, as did the laypeople whom they suborned. One of the deacons thus exposed appears

65 Dumézil, ‘Le crime’, 30. 66 Dumézil, ‘Le crime’, 28. 67 See chs 2–3, ‘Criminalization’ and ‘Peccatization’, pp. 40–155 above. 68 Cf. Wendy Davies, Windows on Justice in Northern Iberia, 800–1000 (London and New York: Routledge, 2016), 28–9, 49–50, 124–30. 69 LV 12.3.15 (Erwig). 70 Cf. Davies, Windows, 39, 142. 71 See p. 163 nn. 51–3 above. 72 Toledo VI (a. 638), Exemplar iudicii inter Martianum et Aventium episcopos. 73 See p. 200 n. 294 below. 165

to have been sentenced in accordance with the local perjury legislation of the Visigothic church,74 while another appears to have been sentenced in accordance with the conspiracy legislation of the imperial church.75 Taken together, the conversion oath of 681 and the perjury case of 638 will illustrate the range of responses – legal, rhetorical, and social – which perjuries and false testimony sometimes elicited in the Visigothic church and kingdom.

9 The Evidence of the Documents: LV 12.3.15 (Erwig) and Perjury’s Infernalization

Perhaps surprisingly, an investigation of sworn private agreements and judicial records is suggested by the work with which we opened this chapter, King Sisebut’s Life and Martyrdom of St Desiderius. Multiple works of Visigothic hagiography refer to documentary records, scribes, and scribal culture, and King Sisebut’s Life proves to be no exception.76 According to the Life of Desiderius, the conciliar trial which marked the bishop’s first fall from favour with Theuderic and Brunhilda77 featured a written agreement between one of the witnesses against Desiderius, the Burgundian noblewoman Justa, and Theuderic and Brunhilda themselves. When the bishop is first accused, Justa, ‘who was of noble stock, but deformed in mind’,78 solemnly promises to accuse Desiderius of raping her. The narrative makes clear that the agreement was written, and that Justa fulfilled her obligations (albeit sinfully):

[The devil] won over some colleagues to his cause and, deceiver that he was, forged certain documents to incriminate the servant of the Saviour. At that time Theuderic, a man of extreme stupidity, ruled with Brunhilda, a woman who enthused over the worst vices and was a great friend to the wicked. Both made a pact (conveniunt)

74 Lérida (a. 546), c. 7. 75 Chalcedon (a. 451), c. 18. 76 Cf. Braulio of Saragossa, Vita sancti Emiliani confessoris, 1; Vitas patrum Emeritensium, 3.9, 4.2.15, 4.4.3, 4.10.3– 8, 5.5.4, 5.5.8, 5.11.16, 5.13.4. 77 See p. 159 above. 78 Sisebut, Vita, 4, ed. Krusch, MGH SS. rer. Mer. 3, p. 631: ‘prosapiae nobilis, sed mente deformis’ (tr. Fear, Lives, 3). 166

with a certain lady who was of noble stock, but deformed in mind. Though called Justa, she was in fact a wicked woman. … Summoned before the council, she made complaint that she had once been ravished by the most blessed Desiderius.79

As we shall see, historically attested instances of this type of agreement survive, and the canonical perjury case which we will examine in the next section hinges on them.80 For the moment, however, it is sufficient to note that such an agreement could have contained an oath, and that King Sisebut’s Life highlights the possibility of finding evidence for perjuries and false testimony in the Visigothic documentary record.

By contrast to Visigothic legislation, however, the documentary record for the Visigothic church and kingdom is relatively poor.81 For the whole of the sixth and seventh centuries, just three private agreements are usually thought to have come down to us in their entirety. These documents include the texts of a donation and a will, both made by the same person, Vincent, a deacon and subsequently bishop of the church of Huesca in northeastern Spain, from the middle of the sixth century;82 and a monastic pactum made by the monks of Fructuosus, later bishop of Dumio and Braga, from the middle of the seventh.83 Apart from these complete, historically attested private acts, we also possess a collection of formulary documents, the so-called Visigothic Formulary.84 Comprising model charters for use by scribes, neither this collection nor its individual texts can be dated and localized with any certainty. The collection was transmitted by a lost, eleventh- or twelfth-century manuscript, and provides its best evidence for the longue durée

79 Sisebut, Vita, 4, ed. Krusch, MGH SS. rer. Mer. 3, p. 631: ‘Persuasit quosdam in suo nomine compares, et adversus famulum salvatoris talia fraudis documenta fraudator abtavit, regnante simul scilicet Theodorico, totius hominem stultitiae dignum, et fautricem pessimarum artium, malis amicissimam Brunigildem. Quandam pariter matronam conveniunt, quae erat prosapiae nobilis, sed mente deformis, Iusta vocabulo, turpis in acto. … Quae instructa in concilio quaesta est, a beatissimo vi stuprum Desiderio esse sibi quondam inlatum’ (tr. Fear, Lives, 3–4). On forms of convenire as synonyms for ‘ma[king] a pact’, see Adam J. Kosto, ‘The Convenientia in the Early Middle Ages’, Mediaeval Studies 60 (1998): 1–54. 80 See pp. 199–214 below. 81 See e.g. Roger Collins, Visigothic Spain, 409–711 (Oxford: Blackwell, 2004), 7. 82 Simon Corcoran, ‘The Donation and Will of Vincent of Huesca: Latin Text and English Translation’, Antiquité tardive 11 (2003): 215–22. 83 In nomine Domini incipit pactum, ed. J.-P. Migne, PL 87 (Paris, 1863), cols 1127–30. 84 Formulae Visigothicae, ed. Karl Zeumer, MGH Form. 5 (Hanover: Hahn, 1886), 572–95. 167

of medieval Iberian history.85 Finally, both of these groups of sources have been substantially augmented by the discovery of more than one hundred original fragmentary documents, which were incised on slate in the regions of Salamanca and Ávila between c.560 and c.700. First coming to light in the 1940s, these slate pizarras function as a kind of historical control group, with which the texts of The Visigothic Formulary in particular may be compared.86 A number of documentary quotations preserved in narrative and legislative sources round out this documentary record, which was collected, edited, and published by Ángel Canellas López in 1979.87

While medieval Hispanists often lament the small size of the Visigothic documentary record,88 this somewhat random sampling of texts exhibits some surprising consistencies with respect to oaths. Sifting through Canellas López’s body of evidence, I have been able to identify at least forty-four individual texts which either preserve oaths or preserve references to oaths, narrowly defined as the invocation of God, the ruler, or another supernatural authority to witness the truth of the oath taker’s statement or promise.89 Amongst the complete surviving historically attested private acts, at least one, the donation of Vincent of Huesca, clearly contains an oath.90 A second, the monastic pactum of Fructuosus of Braga, does not contain a conventional oath, yet this document does contain a vow, which might have been interchangeable with an oath – while Fructuosus’ writings make clear that numerous other monastic pacta were likewise solemnized by oath.91 Within The Visigothic Formulary, meanwhile, at least twenty-one of its individual texts, or

85 Cf. Alice Rio, ‘Freedom and Unfreedom in Early Medieval Francia: The Evidence of the Legal Formulae’, Past and Present 193 (2006): 16. For the persistence of The Visigothic Formulary in medieval Spanish history, see e.g. Davies, Windows, 96, 113, 118, 126, 136, and Adam J. Kosto, Making Agreements in Medieval Catalonia: Power, Order, and the Written Word, 1000–1200 (Cambridge: Cambridge University Press, 2004), 34. 86 Isabel Velázquez Soriano, Las pizarras visigodas: Edición crítica y estudio, Antigüedad y cristianismo: Monografías históricas sobre la antigüedad tardía 6 (Murcia: The University of Murcia, 1989). 87 Ángel Canellas López, Diplomática hispano-visigoda (Saragossa: Institución Fernando el Católico, 1979). 88 See p. 167 n. 81 above. 89 For this traditional definition, see ch. 1, ‘Introduction’, pp. 36–7. 90 Corcoran, ‘Donation’, 218, ll. 3–4: ‘iuro / autem per Deum omnipotentem et futuri iudicii examinationem’. 91 In nomine Domini incipit pactum, ed. Migne, PL 87, col. 1128C: ‘[p]romittimus etiam Deo et tibi Patri nostro’. Cf. Fructuosus of Braga, Regula monastica communis, ed. J.-P. Migne, PL 87 (Paris, 1863), col. 1114A: ‘Solent enim nonnulli … in suis sibi domibus monasteria componere, et cum uxoribus, filiis, et servis, atque vicinis, cum sacramenti conditione in unum se copulare.’ 168

45.7 percent of the collection, either contain or refer to explicit oaths,92 as do at least five of the pizarras.93 A further seventeen oaths and oath references are to be found in variety of narrative and legislative sources, including The Book of the Judges.94 Taken as a whole, these oath texts constitute a valuable resource for the historian of perjury and false witness, and they complement the twenty-three perjury canons and decrees which I have already identified.95

Indeed, the mere presence of the oath in the Visigothic documentary record is a circumstance worth noting. In the late antique and early medieval world, oaths in private agreements tended to be optional; as the imperial government of Arcadius and Honorius seemed to complain in 395, numerous legal parties ‘have inserted Our names in the agreements and have sworn by the life of the Emperors’ (my emphasis), putting the persons of the emperors at risk when doing so was unnecessary.96 Famously, all that a standard Roman legal contract required for validity was the verbal exchange of question and answer, spondes?–spondeo: a promise which might well be solemnized by oath, yet did not have to be.97 In the post-Roman successor states, not all of our documentary sources feature oaths. Although conventional oaths are present in documents descending from late imperial, Ostrogothic, and Byzantine Ravenna,98 the oath is absent from the so-called Tablettes Albertini, the group of documents descending from the Vandal kingdom in North Africa.99 In Merovingian Gaul, where numerous formularies were produced which were comparable with The Visigothic Formulary, the oath could be surprisingly rare. In The Formulary of Angers, for example, which is usually considered the oldest of the Merovingian

92 Formulae Visigothicae, nos 5–8, 11, 15, 20, 23–4, 27, 29, 31–2, 34–40, 45. 93 Velázquez Soriano, Las pizarras, nos 19, 39, 43, 92, 103. 94 Canellas López, Diplomática, nos 93a, 109, 111, 136, 138, 143, 145–7, 165, 167, 175–6, 181, 221–2, 230. 95 See p. 158 n. 17 above. 96 CTh 2.9.3 = CJ 2.4.41 (a. 395): ‘Eos autem huius litis vel iactura dignos iubemus esse vel munere, qui nomina nostra placitis inserentes salutem p(rin)cipum confirmationem initarum esse iuraverint pactionum.’ 97 M. H. Crawford, ‘Foedus and Sponsio’, Papers of the British School at Rome 41 (1973): 1–7. 98 Jan-Olof Tjäder, ed., Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700, 2 vols (Lund and Stockholm: C. W. K. Gleerup, 1955–82), nos 8, 13, 16, 20, 22, 24, 43, 49, 59. 99 Christian Courtois et al., eds, Les Tablettes Albertini: Actes privés de l’époque vandale, fin du 5e siècle, 2 vols (Paris: Arts et métiers graphiques, 1952). 169

formularies, just seven texts include explicit oaths, or 11.7 percent of the total.100 In The Formulary of Marculf, an ecclesiastically sponsored formulary of the late seventh or eighth century, only two texts include explicit oaths, or 2.2 percent.101 By contrast, the presence of the oath throughout The Visigothic Formulary, pizarras, and other records suggests that oaths were particularly valued on the Iberian peninsula, or at least by those scribes and legal parties who produced and preserved these records. Importantly, the oaths cover multiple regions and periods in the kingdom’s history: the deacon Vincent was based in the independent-minded north, a century before Abbot Fructuosus;102 while Fructuosus was based in the equally independent west.103 The evidence of the pizarras ‘shows a Roman tradition reduced to the level of a microregion’,104 and at least two of the documents in The Visigothic Formulary were actually used in the early seventh century, and/or in Córdoba – thus in the more ‘Romanized’ southern Spain, during the period of Sisebut’s kingship.105

Moreover, like their imperial-era forebears, the denizens of Visigothic Iberia appear to have continued the imperial practice of swearing by rulers. As we saw in our analysis of late Roman law, oaths on the emperor played a vital role in perjury’s criminalization,106 and these developments extended into the Visigothic kingdom of the sixth and seventh centuries. Not only does The Roman Law of the Visigoths preserve Alaric’s revised conditions for swearing by Visigothic kings,107 but the documentary record of the Visigothic church and kingdom also contains evidence for the use of these procedures in practice. In a pizarra of the first or second quarter of the seventh century, a seller whose name has not survived swore an oath to his buyer,

100 Formulae Andecavenses, nos 1, 10–11, 15–16, 50, 52. 101 Marculfi Formulae, nos 1.38, 1.40. 102 On northern Spain, see e.g. Jamie Wood, ‘Borders, Centres, and Peripheries in Late Roman and Visigothic Iberia’, The International Journal of Regional and Local History 10/1 (2015): 11–12. 103 Wood, ‘Borders’, 5–6, 7, 11. 104 Wickham, Framing, 225. 105 Formulae Visigothicae, nos 20, 25. On the persistence of Roman municipal institutions at Córdoba, see L. A. García Moreno, ‘En las raíces de Andalucía (ss. V–X): Los destinos de una aristocracia urbana’, Anuario de historia del derecho español 65 (1995): 873–6, and idem, ‘Una memoria indomable: Aristocracia municipal romana y nobleza goda’, Quaderni catanesi di cultura classica e medieval 2 (2003): 76–81. 106 See ch. 2, ‘Criminalization’, pp. 68–86. 107 See pp. 164 n. 57 above. 170

‘by all holy things and the reign of our most glorious lord, King Si-’sebut or King Sisenand (r. 631–6).108 A few decades later, a certain Gisadus swore concerning the possession of a pig, ‘by all holy things and the reign of our most glorious lord, King Chindasuinth’ (r. 642–53).109 Remarkably, The Visigothic Formulary employed language which was almost identical to that of the pizarras, stipulating oath formulas which invoked ‘the reign of our most glorious lord, the king’,110 and which even invoked the ruler’s salus or the ‘salvation’ of his people – a concept which had ranked amongst the most popular to appear in imperial-era oaths.111 Such documents should put to rest the claims of some previous historians that the Visigoths ‘knew no oaths by rulers’,112 and illustrate the continuing relevance of late imperial models for oaths and perjuries. As under the late Roman empire, ostensibly private perjuries could be transformed into public, political offences, for which Visigothic legislation provides abundant evidence.113

One example of a politically sensitive, judicially enforceable oath in the Visigothic documentary record is an oath which was probably sworn by Jewish converts to the Christian church, either in the late winter or in the early spring of 681.114 Preserved legislatively through the second and revised edition of The Book of the Judges,115 this text is one of the most rhetorically elaborated oaths to found in late antique or early medieval literature. At one hundred lines of text

108 Velázquez Soriano, Las pizarras, no 19, p. 177, ll. 9–11: ‘per] / deuina homnia et regnum / gl(oriosissimi) dom(in)i n(os)tri Si’. 109 Velázquez Soriano, Las pizarras, no 92, p. 291, ll. 10–12: ‘iuro ego Gisadus / [per diuina omnia et regnum gloriosissimi] d(omi)ni n(o)stri Cindasuind[di / regis’. 110 See e.g. Formulae Visigothicae, nos 5, 7, 24, 34, 36. 111 Formulae Visigothicae, nos 7, 24, 34, and see ch. 2, ‘Criminalization’, pp. 68–9. 112 Ernst Levy, ‘Zur Quellengeschichtlichen Bedeutung der Leidener Paulussentenzen’, in G. G. Archi et al., eds, Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1966), 62. 113 Consider e.g. the lengthy preamble of Toledo IV’s seventy-fifth canon, which meditates on the implications of perjury for both allegiance to kings and treaties with foreign powers: ‘[M]ultarum quippe gentium, ut fama est, tanta extat perfidia animorum, ut fidem sacramento promissam regibus suis observare contemnant, et ore simulent / iuramenti professionem dum retineant mente perfidiae inpietatem, iurant enim regibus suis et fidem quam pollicentur praevaricant; nec metuunt volumen illud iudicii Dei [cf. Zech. 5:1–4; see p. 133 above], per quod inducitur maledictio multaque poenarum conminatio super eos qui iurant in nomine Dei mendaciter. Quae igitur spes talibus populis contra hostes laborantibus erit? quae fides ultra cum aliis gentibus in pace credenda? quod foedus non violandum? quae in hostibus iurata sponsio permanebit, quando nec ipsis propriis regibus iuratam fidem conservant?’ 114 Canellas López, Diplomática, no 167 = LV 12.3.15 (Erwig). 115 See p. 161 n. 34 above. 171

in the modern printed edition, these Conditiones sacramentorum, ad quas iurare debeant hii, qui ex Iudeis ad fidem venientes professiones suas dederint are also the longest oath text that we will examine in this dissertation.116 As the language of the legislative rubric implies, the conversion oath of 681 was supposed to accompany a prior act, the so-called ‘profession’ or professio. In this earlier document, comparable with the professions made by the converting Arians at the third council of Toledo in 589,117 the prospective convert promised conformity with the Catholic faith. In this case, the prospective Jewish convert specifically embraced certain typically Christian customs, notably the consumption of ‘Christian foods’ and attendance at church on Sundays and feast days.118 The text of the oath then solemnized the profession, and both the oath and the profession were to be delivered to the local bishop, who was directed to conserve the documents in his archive.119 Fearing that converts might ‘declare one thing in (their) speech [and] retain another in (their) heart’,120 King Erwig required the oath legislatively, so that ‘the suspicion of perjury [might] not be held’.121 The document is too long to quote in full, but the concluding oath formulas and the penalty clause are worth considering:

I also swear, both by all the heavenly powers and by the relics of all the and the apostles (or, and by the four holy Gospels), with these conditiones having been deposited on the sacrosanct altar of St N., which I hold or touch with my hands, that all things whatever which I took care to have recorded or was able to collect in my profession, which I gave to you, my lord N., bishop of N., subscribed by my hand, I stated there totally sincerely; and that I proffered those things which are comprehended in the same profession under no pretence or fraud. Yet in all sincerity, just as the same profession contains, I both have renounced forever all Jewish rites or observances, and will believe in the Holy with the whole intention of my heart; and I shall never return, in nothing, to the vomit of my former error.

116 Karl Zeumer, ed., MGH LL nat. Germ. 1 (Hanover: Hahn, 1902), 443–6. 117 See p. 164 n. 61 above. 118 LV 12.3.14 (Erwig): ‘[P]romitto … ut … christianos semper cibos accipiam et ad ecclesiam Dei … concurrere debeam[, s]ed et in festivitatibus dominicis sive etiam in martyrum festis.’ 119 LV 12.3.28 (Erwig): ‘in archivis sue ecclesie recondat’. 120 ‘[A]liud verbo promant, aliud corde retineant’ (LV 12.3.13 [Erwig]). 121 LV 12.3.13 (Erwig): ‘periurii suspicio non habetur’. 172

… But if, deviating in anything, I either stain the holy faith or intend to observe rites of the Jewish sect in any matter; or if I mock you in any matter through the promise of this, my oath, or do not complete those things which I have promised (under the appearance of whatever oath) with the same intention, just as they were heard or understood by you when I was professing: then may there come upon me all the Curses of the Law [cf. Deut. 27–30], which are promulgated by the mouth of the Lord against the despisers of the commandments of God. May there also come upon me, and upon my house and my sons, all the plagues of Egypt and its smitings. And, to the terror of those who remain, may there come upon me the Judgment of Dathan and Abiron [cf. Num. 16], such that the earth should swallow me alive.

And thus, after I have been freed from this life, may I be mancipated to eternal fires. May I be allied to the devil and his angels. May I be consumed in penal torture, sharing a part with the inhabitants of Sodom and with Judas. And when I come before the tribunal of the fearful and glorious judge, our Lord, Jesus Christ, may I be numbered on that side, to whom the same terrible and glorious judge will speak in threatening, saying, ‘Depart from me, you cursed, into everlasting fire which was prepared for the devil and his angels’ [Matt. 25:41].122

This text, which can overwhelm us even today, sought to persuade its swearers not to commit perjury, and I will comment on the document’s rhetorical strategies shortly below.

122 LV 12.3.15 (Erwig): ‘Iuro etiam et per omnes celestes virtutes omniumque sanctorum et apostolorum reliquias, sive et per sancta quattuor evangelia, que superpositis his conditionibus in sacrosancto altario sancti illius, quod manibus meis contineo vel contingo: quia omnia, quecumque in professione mea renotanda curavi vel collegere potui, quam tibi domino meo illi, illius sedis episcopo, manu mea subscriptam dedi, sinceriter totam inibi dixi, et sub nullo argumento vel fraude ea, que in ipsa professione conprehensa sunt, protuli; sed omni sinceritate, sicut eadem professio continet, et omnes ritus vel observationes abinceps Iudaicas abnegavi et omni cordis mei intentione in sanctam Trinitatem crediturus sum et numquam in nullo ad pristine erroris mei vomitum rediturus sum. … Quod si in quocumque aborbitans, aut sanctam fidem maculavero, aut ritus Iudaice secte in quocumque observare intendero, seu si vos in quocumque per huius iuramenti mei promissionem inlusero, vel sub specie cuiuslibet iuramenti ea, que promisi, non ea intentione perfecero, sicut a vobis me profitente audita vel intellecta sunt: veniant super me omnes maledictiones legis, que in contemptores mandatorum Dei ore Domini promulgate sunt; veniant etiam super me et super domum meam et filios meos omnes plage Egypti et percussiones eius, et ad terrorem ceterorum ita iudicium Dathan et Abiron super me veniat, ut viventem me terra deglutiat, sicque, postquam hac caruero vita, sim eternis ignibus mancipandus, sim diabolo vel suis angelis sociandus, sim habitatoribus Sodome et Iude particeps in penali supplicio conburendus, et dum ante tribunal metuendi et gloriosi iudicis Domini nostri Iesu Christi pervenero, in ea parte adnumerer, quibus idem terribilis et gloriosus iudex minando dicturus est dicens: “Discedite a me maledicti in ignem eternam, qui preparatus est diabolo et angelis eius.”’ 173

Nevertheless, the first observation to be made is that this oath itself represents a new documentary type, different from the other oaths which we have examined. In Roman legal documents, as we have seen, scribes tended to insert an oath (if they inserted an oath) toward the end of the agreement, in what diplomatic historians call the eschatocol.123 A good example is the Ravenna papyrus where the oath taker acknowledged that he might ‘incur charges (or the guilt) of perjury according to the laws’.124 In that document, the oath taker, the deacon Gratianus, offered security to the widowed clarissima Germana for a portion of her deceased husband’s estate, which he had received on behalf of his ward. Toward the end of the original agreement, subsequently entered into Ravenna’s municipal archive, Gratianus swore by ‘the unconquered prince governing the Roman empire’;125 penalties, subscriptions, and dating all followed.126 By contrast, in Visigothic Spain, the oath was sometimes excised from the agreements which it was intended to solemnize, and recorded in a separate document, the so-called conditio sacramenti – of which the conversion oath of 681 is a case in point. Joined to the professio which the prospective convert had previously made, the oath probably appeared as a semi-independent act, endowed with its own importance. So far as we can tell, conditiones sacramentorum were made on exceptionally important occasions, such as the swearing of the royal fidelity oath (where the terminology of the conditio became standard127) or perhaps when a legal party requested it (as may have been the case in one of the pizarras128). Either way, the development of this new diplomatic form meant that oaths could grow to extraordinary lengths, and that oath takers, recipients, magistrates, and witnesses could all reflect on the meaning of these oaths to a considerable degree.129

123 See e.g. CTh 2.9.3 = CJ 2.4.41 (a. 395), and Olivier Guyotjeannin, Jacques Pycke, and Benoît-Michel Tock, Diplomatique médiévale (3rd ed., Turnhout: Brepols, 2006), 84ff. 124 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, l. 2.1: ‘periurii reatus incurram secundum leges’. For discussion see ch. 2, ‘Criminalization’, pp. 84–5. 125 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, ll. 1.12–13: ‘invictissimi principis R[oma]num gubernantis imperium’. 126 Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8, p. 240, ll. 1.13–2.3. 127 Canellas López, Diplomática, nos 143, 145–7, 175–6. 128 Velázquez Soriano, Las pizarras, no 39. 129 On the persistence of conditiones after Visigothic rule, see Davies, Windows, 49–50, 124, and Kosto, Making Agreements, 45–6, 52–3, 102. 174

Indeed, the conditio of 681 was a document designed to impress. The supernatural authorities invoked by the prospective convert prove to have been very numerous: although we quoted only the oath’s concluding formulas, invoking ‘all the heavenly powers’ and ‘the relics of the saints and the apostles’,130 the swearer was supposed to begin by invoking God the Father, and to proceed to review key episodes in salvation history from the Creation and Flood down to the Resurrection and Ascension.131 Moreover, just as the invocation of supernatural authorities multiplied, so too did the author’s use of certain rhetorical devices. Repetition is very prominent; forms of ‘sincerely’ (sinceriter/sinceritate) are repeated twice, while the phrase ‘in anything’ (in quocumque) is repeated three times.132 Indeed, the entire concluding portion of the oath is constructed in parallel fashion: ‘I also swear … that … I stated … and that I proffered’; ‘[y]et … I both have renounced … and shall believe’ (Iuro etiam … quia … dixi, et … protuli; sed … et … abnegavi et … crediturus sum).133 The penalties stipulated in the penalty clause appear in doubled triplets, with the first set of three penalties (the ‘Curses of the Law’, the ‘Plagues of Egypt’, and the ‘Judgment of Dathan and Abiron’) seeming to refer to the temporal death of the perjuror, and the second set (mancipation to ‘eternal fires’, alliance with ‘the devil and his angels’, and association to Judas and the Sodomites) seeming refer to his or her eternal death.134 Right before the penalty clause, we even encounter the emphatic use of a double negative, together with alliteration and assonance: ‘I shall never return, in nothing (numquam in nullo) to the vomit of my former error.’135 If the conditio of 681 was ever recited aloud, as some of the documents in The

130 See p. 173 n. 122 above. 131 LV 12.3.15 (Erwig): ‘Iuro primum per Deum patrem omnipotentem … qui fecit celum et terram … qui Noe cum uxore et tribus filiis cum uxoribus vel animalibus aut volatilibus atque reptilibus in archa tempore diluvii conservare dignatus est … [e]t per … sanctam resurrectionem Domini nostri Iesu Christi eiusque ad celos adscensionem.’ 132 See p. 173 n. 122 above. 133 See p. 173 n. 122 above. 134 See p. 173 n. 122 above: ‘[V]eniant super me omnes maledictiones legis, que in contemptores mandatorum Dei ore Domini promulgate sunt; veniant etiam super me et super domum meam et filios meos omnes plage Egypti et percussiones eius, et ad terrorem ceterorum ita iudicium Dathan et Abiron super me veniat, ut viventem me terra deglutiat, sicque, postquam hac caruero vita, sim eternis ignibus mancipandus, sim diabolo vel suis angelis sociandus, sim habitatoribus Sodome et Iude particeps in penali supplicio conburendus.’ On temporal and eternal death, see e.g. Augustine, De civitate Dei, 13 passim. 135 See p. 173 n. 122 above. 175

Visigothic Formulary were most likely intended to be,136 and as conditiones sacramentorum were publicly opened and inspected on other occasions,137 then these repetitions, litotes, alliterations, and assonances must have had some effect on their listeners. As Nicholas Everett has written about another early medieval oath formula, the document’s ‘force … derive[d] precisely from its performance as a solemn declaration’ (my emphasis).138

Yet the most striking aspect of our oath formula may be the character of the biblical allusions, which threatened to precipitate the guilty perjuror into hell. In the penalty clause, biblical figures like Judas and the destruction of Sodom and Gomorrah probably remain familiar to modern readers,139 yet other references may be more obscure. The ‘Judgment of Dathan and Abiron’, for example, referred to an episode from The Book of Numbers, in which Dathan, Abiron, and Core join in a ‘sedition’ (seditio) against the leadership of and Aaron, during the Israelites’ wanderings in the desert of Sinai.140 According to the biblical narrative, Dathan, Abiron, and Core complain both of Moses and Aaron’s position of leadership within the community, which is challenged,141 and of the leaders’ seeming inability to lead the Israelites out of the wilderness.142 When Moses lays a conditional curse both on the rebels and on himself, asking God to vindicate the more faithful party,143 this action precipitates an immediate, divine intervention:

And immediately as he had made an end of speaking, the earth broke asunder under their feet: And opening her mouth, devoured them with their tents and all their

136 Formulae Visigothicae, no 20. 137 Julian of Toledo, Historia Wambae regis, Iudicium in tyrannorum perfidiam promulgatum, 6. 138 Nicholas Everett, ‘Paulinus of Aquileia’s Sponsio episcoporum: Written Oaths and Ecclesiastical Discipline in Carolingian Italy’, in William Robins, ed., Textual Cultures of Medieval Italy (Toronto: The University of Toronto Press, 2011), 182. 139 See e.g. Almut-Barbara Renger, ‘The Ambiguity of Judas: On the Mythicity of a New Testament Figure’, Literature and Theology 27/1 (2013): 1–17, and Weston W. Fields, Sodom and Gomorrah: History and Motif in Biblical Narrative, The Journal for the Study of the Old Testament SS 231 (Sheffield: Sheffield Academic Press, 1997). 140 Num. 16:42, 49. On the political salience of this episode in an Old Testament context, see Jonathan Magonet, ‘The Korah Rebellion’, The Journal for the Study of the Old Testament 7/24 (1982): 3–25. 141 Num. 16:1–11. 142 Num. 16:12–17. 143 Num. 16:29–30. 176

substance. And they went down alive into hell (descenderunt vivi in infernum), the ground closing upon them, and they perished from among the people. But all Israel, that was standing round about, fled at the cry of them that were perishing: saying: Lest perhaps the earth swallow us up also.144

Why these biblical allusions were chosen must remain a matter of conjecture, yet the figure of Judas almost certainly had strong connotations of falsehood and betrayal;145 so may have the figures of Core, Dathan, and Abiron.146 In the present case, the scriptural quotation which completed the conditio, an extract from the Parable of the Sheep and the Goats,147 may also have had connotations of militancy and judicial enforcement. In the surviving Visigothic liturgy, the parable was to be heard on the feast of St Michael the .148 The rebellion of Dathan, Abiron, and Core could be heard at Hours during Ascensiontide.149

While the conditio of 681 is notable for its length, these terrifying allusions were employed on multiple occasions. Of the forty-four oath texts which I have been able to identify,150 at least eleven others also stipulated extreme, supernatural penalties in the event of perjury.151 Intriguingly, the scribes or magistrates who drafted and oversaw these arrangements seem to have considered such language uniquely well suited to oath taking procedures. In The Visigothic Formulary, almost all of the documents which feature extreme supernatural penalties also include an oath.152 The

144 Num. 16:31–4: ‘confestim igitur ut cessavit loqui dirupta est terra sub pedibus eorum et aperiens os suum devoravit illos cum tabernaculis suis et universa substantia descenderuntque vivi in infernum operti humo et perierunt de medio multitudinis at vero omnis Israhel qui stabat per gyrum fugit ad clamorem pereuntium dicens ne forte et nos terra degluttiat’. 145 Cf. Toledo XVI (a. 693), Decretum iudicii ab universis editum. 146 For the popularity of these formulas, see J. Beneyto Pérez, ‘Sobre las fórmulas visigodas “Judas, Datan y Abirón”’, Boletín de la Real academia de la historia 101 (1932): 191–7. 147 Matt. 25:41. 148 Missale mixtum secundum regulam beati Isidori, 2, ‘In festo sancti Michaelis archangeli’, ed. J.-P. Migne, PL 85 (Paris, 1862), cols 877C–878B. 149 Breviarium Gothicum, ‘In ascensione Domini’, ed. J.-P. Migne, PL 86 (Paris, 1891), cols 672A–674A. 150 See pp. 168–9 nn. 90–4 above. 151 Canellas López, Diplomática, nos 221–2; Corcoran, ‘Donation’; Formulae Visigothicae, nos 5, 7–8, 15, 24, 39, 45; Velázquez Soriano, Las pizarras, no 39. 152 Formulae Visigothicae, nos 1, 5, 7–8, 15, 24, 39, 45. 177

single exception is an act of manumission for a slave, appearing at the front of the collection, and since this document is mutilated, we cannot rule out the possibility that it originally contained an oath.153 Amongst the pizarras, meanwhile, if we exclude conventional curse texts, then just one of these documents apparently stipulated extreme supernatural penalties: likewise a conditio sacramenti.154 To be sure, any association between oath violations and terrifying biblical allusions was an accidental link, not a necessary one. In comparable charters from Merovingian Gaul, extreme supernatural penalties were stipulated quite freely, frequently without an oath.155 Yet in Visigothic Spain, or at least for the Visigothic legal writers of whom we have notice (such as the scribes of The Visigothic Formulary), oaths and extreme supernatural penalties do seem to have gone hand in hand. Outside our sample set of oaths, such language can be found in the case of vows, which were similar to oaths,156 and in documents which had been issued by sacred personages or assemblies, notably the king and church councils.157 As yet another conditio explained, the oath ‘resounds for us like a parable’, perhaps not unlike the Parable of the Sheep and the Goats;158 and should the oath takers ‘knowingly perjure themselves, and handle the name of the Lord with falsehood’, then even penitential practices like fasting and almsgiving would be to no avail.159

Equally importantly, extreme supernatural penalties were not characterized as applicable to the oath takers alone. On the contrary, as occasionally seems to have transpired in Roman law,

153 Formulae Visigothicae, 1, ed. Zeumer, MGH Form. 5, p. 575: ‘… posterum denique, ne inquietudo in vos aliqua incumbat, aut contra hoc factum nostrum irrita adversitas impugnet, tali maluimus iudicio praesenti tramiti poena subiungere: Sit ille Deo reus.’ For other cartulae libertatis which certainly contained oaths, see Formulae Visigothicae, nos 5–6. 154 Velázquez Soriano, Las pizarras, no 39. 155 See e.g. Formulae Bituricenses, 9, ed. Karl Zeumer, MGH Form. 5 (Hanover: Hahn, 1886), 172 (also a manumission of a slave): ‘Si quis vero … contra hanc ingenuitate … presumpserit, inprimitus ira Dei, caelestis Trinitatis, incurrat … et cum Dathan et Abiron in profundum inferni dimergatur.’ No invocation of God, the king, or other supernatural authority is to be found anywhere in the text. 156 In nomine Domini incipit pactum; see p. 168 n. 91 above. 157 Canellas López, Diplomática, nos 26, 98, 115 (for the king), and 187 (for church councils). 158 Canellas López, Diplomática, no 222, p. 271: ‘in nostram parabolam resonat’. 159 Canellas López, Diplomática, no 222, p. 271: ‘Et si periurant et nomen Domini in falsum tetigerint se scientes, descendat super illos ira Dei omnipotentis et iudicium Dei. … Et ipsum periurium non sit dimissum per elemosinam nec per ieiunium nec per penam nec per confessionem.’ 178

Visigothic oath takers attempted to extend the legal and religious force of their oaths to outside parties, with uncertain consequences.160 In Visigothic documents, various forms of adjuration appear to have been quite common. In The Visigothic Formulary, the first complete text of a surviving oath stipulates that the penalties applied both to the maker of the agreement, the potential perjuror him- or herself, and to anyone else who sought to impugn it, by whatever means were at his or her disposal. ‘But if, perchance,’ the penalty clause begins, ‘what I do not believe will happen, either I or anyone should dare to come against this liberty’, then the extreme supernatural penalties will follow (my emphasis).161 How this placing of additional parties on oath was supposed to work in theory or in practice remains unclear, yet Visigothic documents are adamant that the entire community could be implicated. In the case of the agreement just mentioned, the oath taker appeared to swear both on his or her own behalf and on the behalf of others, possibly his or heirs.162 In other cases, outside parties who aided and abetted the known perjury of a false oath taker could come to share in the perjuror’s guilt. According to an agreement to be concluded between a monastic clergyman and his bishop, promising to reside and serve in a certain monastery, ‘If anyone from amongst the other people should wish to receive or retain me in his household, and when he should come to the knowledge of your warning should not intend to consign me to you … then let him be confounded with eternal damnation by the devil.’163 Yet however these adjurations were accomplished, the extreme supernatural penalties for perjury seemed to threaten the falsely adjured individual as much as they did the perjuror. In Visigothic Spain, oath infractions were often a collective, communal phenomenon.164

160 For an imperial example, where a man disinheriting his daughter in Egypt attempted to place the local defensor civitatis on oath, see FIRA(2) 3, ed. Vincenzo Arangio-Ruiz (Florence: S. A. G. Barbèra, 1968), no 15. 161 Formulae Visigothicae, 5, ed. Zeumer, MGH Form. 5, p. 577: ‘[q]uod si forte, quod fieri non credo, contra hanc libertatem aut ego at quicumque venire temptaverit’. 162 Formulae Visigothicae, 5, ed. Zeumer, MGH Form. 5, p. 577: ‘Quod etiam iuratione confirmamus … quia mihi numquam licebit, contra hunc meredis mee factum venire, neque a quacumque infrangi umquam persona.’ Cf. Formulae Visigothicae, 24, ed. Zeumer, MGH Form. 5, p. 587: ‘Quod etiam iuratione confirmamus … quia hoc … neque a nos neque a quemquam haeredum nostrorum aux ex transverso in lite veniente persona hoc aliquatenus possit infringi.’ 163 Formulae Visigothicae, 45, ed. Zeumer, MGH Form. 5, p. 595: ‘Si quis vero ex aliis personis in domum suam me recipere aut retinere voluerit, et adubi cognoverit monitionem vestram et minime me consignare vobis intenderit … sit a diabulo aeterna damnatione confusus.’ 164 This communal aspect to oath infractions may also be reflected in some of the infecting, medical images which were used by Visigothic writers. Another biblical figure commonly alluded to in our penalty clauses, Gehazi (2 Kings 5:20–7), defrauded Naaman the Leper and had Naaman’s leprosy transferred to himself (see e.g. Formulae 179

Crucially, documents such as the conditio of 681 constitute our primary, local evidence for what Bruno Dumézil has called the ‘diabolization’ or infernalization of perjury in the Visigothic church and kingdom. Yet what did these extreme supernatural penalties mean, and how were they interpreted? One possibility, perhaps the most plausible, is that ‘the Curses of the Law’, ‘the Plagues of Egypt’, and ‘the Judgment of Dathan and Abiron’ were understood to be hyperbolic. Few perjurors and falsely adjured individuals literally expected ‘the earth [to] swallow [them] alive’;165 and Visigothic canon law supported precisely the kinds of penitential practices, including fasting and almsgiving, which one of our conditiones attempted to foreclose.166 Amongst the fourth- and fifth-century church fathers, neither Jerome nor Augustine had considered that perjury and false witness precipitated the sinner into hell, and while both theologians insisted that perjury and false witness were grave sins, they also believed that these offences could be purged through canonical and penitential discipline. As we have seen in the case of Jerome, the monk wrote to a priest in Gaul in order to remind him that perjury ranked amongst those sins for which repentance (paenitudo) was possible,167 and he even entertained the possibility that all sinners – excluding only atheists and the devil – would be saved.168 In the case of Augustine, the bishop reportedly imposed penance quite frequently on many of his congregants at Hippo,169 and he sought to persuade the perjured Pinianus to fulfil his oath by citing the classical example of Marcus Regulus, rather than by citing the threat of hellfire.170 This patristic emphasis on perjury’s serious but ordinary gravity even found its way into the writings of church fathers who exercised a more direct

Visigothicae, nos 7, 39). As we shall see in a moment, legislative writers understood perjuries as polluting or contaminating (see p. 185 below). 165 Cf. Walter Goffart, The Narrators of Barbarian History (AD 550–800): Jordanes, Gregory of Tours, , and Paul the Deacon (Princeton: Princeton University Press, 1988), 137: ‘[Gregory of Tours’s contemporaries] knew that, as a rule, nothing untoward occurred when one committed perjury. … That comfortable certainty was … what Gregory sought to counteract.’ 166 See pp. 196ff. below. 167 See Jerome, Epistulae, 55.2, and ch. 3, ‘Peccatization’, p. 133. 168 Jerome, In Isaiam, 18.66.24, ed. Mark Adriaen, CCSL 73A (Turnhout: Brepols, 1963), 799: ‘Et sicut diaboli et omnium negatorum atque impiorum, qui dixerunt in corde suo: Non est Deus, credimus aeterna tormenta. Sic peccatorum atque impiorum et tamen Christianorum, quorum opera in igne probanda sunt atque purganda, moderatam arbitramur et mixtam clementiae sententiam iudicis.’ 169 Augustine, Sermones, 232.8. 170 For discussion of these examples, see ch. 3, ‘Peccatization’, pp. 133–4, 150–1. 180

influence on the development of the Visigothic church. In the sermons of Caesarius, bishop of Arles, the early sixth-century Gallican prelate likewise insisted that perjurors, false witnesses, sexual offenders, murderers, and diviners could all ‘expiate’ their sins, though the process of this expiation would be difficult.171 Notably, Caesarius had served as papal vicar for both Gaul and Spain,172 and many of his sermons continued to circulate in Visigothic Iberia during the sixth and seventh centuries.173

Nevertheless, the infernalization of perjury in Visigothic documents may have been more than a mere metaphor. Not everyone’s beliefs necessarily reflected patristic orthodoxies,174 and some people may have interpreted extreme supernatural penalties for perjury more literally. As is already evinced in the writings of Augustine, Iberian inhabitants had long held a notably catastrophic view of perjury, even by Augustinian standards. According to the judicial narrative of the monk Fronto, which the Balearic aristocrat Consentius gave to Augustine in c.420,175 Fronto confronted the perjured Bishop Sagittius of Lérida with the question, ‘Are you not afraid of slaying your own soul [lit., ‘cutting your soul’s throat’] by such great perjuries?’176 Apparently, this rhetorical assertion that perjury ‘slew’ the soul enjoyed some currency, even before this language reappeared in the seventh-century Book of the Judges. According to the perjury Antiqua which may date as far back as the reign of King Euric (r. 466–84),177 the legislator prescribed secular

171 Caesarius of Arles, Sermones, 189.2, ed. Germain Morin, CCSL 104 (Turnhout: Brepols, 1953), 771–2: ‘Si vero quisque … crimen aliquod capitale commisit, ut si fidem suam falso testimonio expugnavit ac prodidit, si sacrum veritatis nomen periurii temeritate violavit, si niveam baptismi tunicam et speciosam virginitatis sericam caeno commaculati pudoris infecit, si in semetipso novum hominem crimine homicidii interfecit, si auguria observando per aruspices et divinos atque incantatores captivum se diabolo tradidit: haec atque huiusmodi mala expiari penitus communi et mediocri vel secreta satisfactione non possunt.’ 172 Epistolae Arelatenses genuinae, 26, 28. 173 Réginald Grégoire, ‘L’homéliaire de Tolède’, in idem, Les homéliaires du moyen âge: Inventaire et analyse des manuscrits, Fontes 6 (Rome: Herder, 1966), 161–85. 174 J. N. Hillgarth, ‘Popular Religion in Visigothic Spain’, in Edward James, ed., Visigothic Spain: New Approaches (Oxford: The Clarendon Press, 1980), 3–60. 175 See ch. 3, ‘Peccatization’, pp. 141–8. 176 Augustine, Epistulae nuper in lucem prolatae, 11.19, ed. Johannes Divjak, CSEL 88 (Vienna: Hölder–Pichler– Tempsky, 1981), 65: ‘[A]nimam tuam tantis non metuis iugulare periuriis?’ (tr. Roland Teske, The Works of Saint Augustine: A Translation for the Twenty-first Century, ii: Letters 211–70, 1*–29* [Hyde Park, NY: New City Press, 2005], 275). 177 See ch. 2, ‘Criminalization’, p. 94 n. 350. 181

penalties in the event that ‘anyone should kill his soul by means of perjury’, rhetoric which was repeated by the statute’s seventh-century rubricator.178 Furthermore, comparable with the works of Merovingian hagiography, Visigothic hagiography periodically described the precipitation of perjurors and false witnesses into hell. In Sisebut’s Life of Desiderius, the bishop’s false witness and calumniator, Justa, is strangled by the devil and transported to the , despite the fact that she formally confesses and even lays a curse on the deviser of the conspiracy, Brunhilda.179 Other hagiographical representations were more theologically reserved, yet remained extremely skeptical of the fate of perjurors in the afterlife. In a mid-seventh century Life of St Emilian the Confessor, composed by Isidore’s younger contemporary, Braulio, bishop of Saragossa,180 the sixth-century saint warns the senators of Cantabria against committing perjury. According to Braulio, Emilian ‘attacked the rest [of the senators] in equal measure for their perjury and treachery, predicting the coming wrath of God since they did not repent of their former works’.181 Judging from such texts, perjury came to be perceived as a sin uniquely difficult to repent, perhaps imperilling the soul to an even greater extent than did comparable crimes like murder and adultery.182

For pious Iberian audiences, moreover, the sufferings of the perjured in hell were likely to be literal. Although sixth- and seventh-century beliefs about hell and hellfire may be difficult to access, there are indications that Visigothic bishops taught the materiality of eternal damnation to their audiences. One bishop who propounded this materiality, preached against perjuries in

178 LV 2.4.14 (Antiqua): ‘De his, qui animas suas periurio necant. Si quis animam suam periurio necaverit … addicatur et centum flagella suscipiat.’ 179 Sisebut, Vita, 9, ed. Krusch, MGH SS rer. Mer. 3, p. 633: ‘[Iustae] exactiva professio isto modo prolata est: “Cognosco crimen Dei contra famulum machinatum, cognosco causam, cognosco magis sentiens et debitam poenam. Haec ultor omnipotens inventrici Brunigildi respondeat …: munus execrandum ad mortem, promissio ad nullam peritura salutem.” At ubi finem loquendi dedit, enectam suffocatamque cunctorum artifex vitiorum peremit secumque semper arsuram ultricibus conflagrantibus flammis invexit.’ For Gregory of Tours’s perjury anecdotes, see ch. 1, ‘Introduction’, p. 6 n. 28. 180 V. Valcárcel, ‘La Vita Emiliani de Braulio de Zaragoza: El autor, la cronología, y los motivos para su redacción’, Helmantica 48/147 (1997): 375–406. 181 Braulio of Saragossa, Vita sancti Emiliani confessoris, 26, ed. J.-P. Migne, PL 80 (Paris, 1863), col. 712B–C: ‘Caeteros quoque cum non resipiscerent ab antiquis operibus, ira pendente divinitus, pari modo perjurio doloque adgrediens, sanguine est ipsorum grassatus’ (tr. Fear, Lives, 40). 182 Emilian also attacks the senators of Cantabria for their thefts, incest, and violence: Braulio, Vita sancti Emiliani, 26. 182

particular, and issued canonical perjury legislation was Martin, bishop of Braga, metropolitan of the western province of Gallaecia during the third quarter of the sixth century.183 At the second council of Braga, where he presided in 572, Martin advised his suffragan bishops to visit the individual churches within their dioceses, instructing both the clerics and the laypeople whom they found there. On the second day of such a visit, ‘with the people of the same church having been assembled, let [the bishops] teach them to flee from the errors of idols or from the various crimes, that is murder, adultery, perjury, false witness, and the remaining death-bearing sins … such that [the people] may believe in the resurrection of all humans and in the Day of Judgment.’184 In this canonical text, the nature of the resurrection and of the Last Judgment is opaque, yet Martin clarified what he meant in a longer work composed around the same time, his On the Reform of Rustics. Addressed to his fellow bishop, Polemius of Astorga, in c.573,185 this episcopal manual reminded its readers that unbelievers, the unbaptized, and unrepentant sinners would all be ‘damned with the devil and all the demons and … dispatched into hell, with their flesh in eternal fire, where … that screaming flesh already received in the resurrection is tortured for eternity’.186 To be sure, Martin’s belief in the materiality of hellfire was nothing new, but both Iberian and Gallican Christian writers had been emphasizing this aspect of Christian eschatology for at least a century prior to Martin. According to Peter Brown, this ‘dramatic sense of the perils of the other world, of the fires of hell and of the approach of judgment’, first ‘took root’ in the southwestern successor states to the Roman empire, motivated in part by the need to preserve order and promote ecclesiastical patronage on the part of people like the senators of Cantabria.187

183 On Martin, see Gregory of Tours, Historiae, 5.37. 184 Braga II (a. 572), c. 1: ‘[A]lio die convocata plebe ipsius ecclesiae doceant illos, ut errores fugiant idolorum vel diversa crimina, id est homicidium, adulterium, periurium, falsum testimonium et reliqua peccata mortifera … ut credant resurrectionem omnium hominum et diem iudicii.’ 185 Yitzhak Hen, ‘Martin of Braga’s De correctione rusticorum and Its Uses in Frankish Gaul’, in Esther Cohen and Mayke de Jong, eds, Medieval Transformations: Texts, Power, and Gifts in Context (Leiden: Brill, 2001), 35. 186 Martin of Braga, De correctione rusticorum, 14, ed. Claude W. Barlow, Martini Episcopi Bracarensis Opera Omnia (New Haven: Yale University Press, 1950), 194: ‘Nam illi qui increduli fuerunt aut non fuerunt baptizati aut certe, si baptizati fuerint, post baptismum suum iterum ad idola et homicidia vel adulteria vel ad periuria et ad alia mala reversi sunt et sine poenitentia sunt defuncti, omnes qui tales fuerint inventi damnantur cum diabolo et cum omnibus daemoniis quos coluerunt et quorum opera fecerunt, et in aeterno igne cum carne sua in inferno mittuntur, ubi ignis ille inextinguibilis in perpetuum vivit, et caro illa iam de resurrectione recepta in aeternum cruciatur gemens.’ 187 Peter Brown, The Ransom of the Soul: Afterlife and Wealth in Early Western Christianity (Cambridge, MA: Harvard University Press, 2015), 146. Brown’s analysis focuses on three sets of figures – Salvian of Marseilles (whom we saw in our analysis of patristic literature; see pp. 101–2); Honoratus of Lérins and his fellow monks and ascetics 183

In the case of the conditio of 681, this partly literal, partly metaphorical infernalization of perjury was designed to inspire a particular emotion: fear. According to the text, the ‘Judgment of Dathan and Abiron’ would cause ‘terror’ to any observers who survived the perjuror’s initial destruction: ad terrorem ceterorum.188 Jesus is represented as a ‘fearful’ and ‘terrible’ judge, and his words are spoken to the guilty perjuror ‘in threatening’.189 Moreover, just as the conditio of 681 was not unique in stipulating extreme supernatural penalties, neither was it unique in providing this persuasive rationale. According to the pizarra recording a conditio sacramenti, any onlookers would become ‘very frightened’ (pertimescan) by the example of the perjuror’s destruction.190 Similar language can be found in The Visigothic Formulary,191 and canon law offered a comparable explanation. In 675, just six years prior to the legislative promulgation of our conversion oath,192 the eleventh council of Toledo established provincial rules for the ordination and promotion of clerical candidates within the central province of Carthaginensis. According to the conciliar record, all ordinands throughout the province were to make solemn, written promissiones, similar to the professions we have already seen, promising to believe the Catholic faith and to live in a canonical manner.193 Unfortunately, the language of the canon is insufficient to determine if these clerical professions were also solemnized by oath, yet the consilience in problem solving mechanisms between the council’s handling of clerical candidates and the kingdom’s handling of its Jewish population shows the consistency with which such procedures were proposed. Remarkably, the eleventh council of Toledo explained its reasoning in terms not dissimilar to those provided by the conditio of 681. ‘[F]or [a person] is more accustomed to fear

off the southern coast of ; and Caesarius of Arles (for whom see pp. 180–1 above) (Brown, Ransom, 115–47 passim). For the materiality of hellfire in the early church, see Alan E. Bernstein, ‘Damnation’, in idem, The Formation of Hell: Death and Retribution in the Ancient and Early Christian Worlds (London: UCL Press, 1993), 228–47. 188 See p. 173 n. 122 above. 189 See p. 173 n. 122 above: ‘[E]t dum ante tribunal metuendi et gloriosi iudicis Domini nostri Iesu Christi pervenero, in ea parte adnumerer, quibus idem terribilis et gloriosus iudex minando dicturus est.’ 190 Velázquez Soriano, Las pizarras, no 39, p. 201, ll. 6–7: ‘[ira Dei Pa]tris ad infra dicende[t ut uidentes omnes] / pertimescan essenplo’. 191 Formulae Visigothicae, 39, ed. Zeumer, MGH Form. 5, p. 593: ‘ut videntes omnes irae supernae Dei iuditium talibus hominibus terreantur exemplo’. 192 See pp. 171–2 above. 193 Toledo XI (a. 675), c. 10. 184

(timere) what is promised individually,’ the council fathers explained, ‘than what is implied by a general obligation.’194

At the same time, the infernalization of perjury ought not to blind us to other methods of enforcement which Visigothic kings and bishops claimed to have at their disposal. In 681, the penalty clause of our conditio stipulated exclusively supernatural penalties, yet The Book of the Judges also makes clear that the oath was considered judicially enforceable. According to the package of legislation promulgated by Erwig, both imposing the oath itself195 and preserving the texts of both the profession and the oath,196 any perjurors in 681 would be liable to prosecution, presumably in a royal court. In notably ferocious language which recalled the Roman judicial records’ characterization of military perjury as ‘polluting’,197 and which also recalled the similar language to be found in The Book of Leviticus,198 King Erwig’s administration decried both the perjury of the conversion oath and any relapse into Jewish practices:

[W]ith the oath having been rendered according to the order above … he who should vow himself to be a Christian and should be found to be a transgressor of his promise, and a worshipper in whatever rite of the Jewish sect – since he has dared to profane the name of the Lord [i.e., to commit perjury] and to pollute himself with the filth of Jewish error – shall receive one hundred lashes, decalvated, and waste away in the merited labour of exile; with all of his goods having been confiscated, and rendered to the power of the prince.199

194 Toledo XI (a. 675), c. 10: ‘[S]olet enim plus timere quod singulariter pollicetur quam quod generali innexione concluditur.’ 195 LV 12.3.13 (Erwig). 196 LV 12.3.14–15 (Erwig). 197 See ch. 2, ‘Criminalization’, pp. 59–60. 198 Lev. 19:12: ‘non peierabis in nomine meo nec pollues nomen Dei tui’. 199 LV 12.3.13 (Erwig): ‘[Q]ui … reddito sacramento iuxta superiorem ordinem, christianum se esse devoverit et in quolibet ritu Iudaico secte cultor ac promissionis sue transgressor esse reperiatur, quia et nomen Domini ausus est profanare et se Iudaici erroris ceno polluere, amissis rebus omnibus et in principis potestate redactis, et centum flagella decalvatus suscipiat et exilii debita conteratur erumna.’ 185

Notably, this underlying combination of penalties for ‘profan[ing] the name of the Lord’ – corporal punishment, confiscation of property, and banishment – is strikingly similar to the combination of penalties for profaning the name of the emperor according to The Opinions of Paul: corporal punishment and banishment, probably supplemented by fines.200 In the conditio of 681, this fundamental package of late antique penalties for perjury persisted, altered to fit the particular expectations of seventh-century Iberians and the perceived gravity of the occasion.201

Indeed, the survival of Erwig’s legislation invites a closer examination of the unique circumstances surrounding this particular oath.202 Although the surviving copy of our text is legislatively preserved, without any attestation of its use, it seems likely that the oath was actually sworn. Thanks to both the legislative and the documentary record, we know that converting Jews in various parts of Spain had sworn such oaths on at least three previous occasions, during the reign of Sisebut,203 in December 637,204 and once again in March 659.205 Moreover, Erwig’s legislation imposing the oath included provisions which offer clues as to the text’s probable use. For those Jewish communities which wished to retain their ownership of Christian slaves (mancipios), an ownership which violated the Visigothic church’s strictures,206 conversion to the Christian church was required in a relatively brief period of time, between February 1 and April 1,

200 Martin David and H. L. W. Nelson, ‘Apographum, Text und philologischer Kommentar’, in G. G. Archi et al., Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1956), 7: ‘[F]ustibus tamen animaduersus aut relegatur aut curia ad tempus ǁ submouetur.’ For financial penalties, see e.g. CTh 2.9.3 = CJ 2.4.41 (a. 395) and Tjäder, Die nichtliterarischen lateinischen Papyri, i, no 8. 201 Daniel A. Washburn, Banishment in the Later Roman Empire, 284–476 CE (London and New York: Routledge, 2013), 104. On stereotypically Visigothic penalties such as decalvation, see e.g. Joaquín Martínez Pizarro, ‘Introductory Essay’, in Martínez Pizarro, tr., The Story of Wamba: Julian of Toledo’s Historia Wambae regis (Washington, DC: The Catholic University of America Press, 2005), 54. Notably, the military dux Paulus, one of the perjurors attested in the surviving judicial records of the Visigothic kingdom (see p. 163 above), was decalvated in 673 for the violation of his royal fidelity oath (Julian of Toledo, Historia Wambae regis, 27, 30). Outside of Visigothic Spain, ‘decalvation’ also appeared as a penalty for perjury in a manuscript addition to the eighth-century Roman Law of Chur: ‘Si quis in p[er]iurio cupiditatis aut infidelitatis quis inuentus fuerit. primu[m] fiat battutus et decaluatus missa pice’ (Capitula codicis S. Galli, 4, ed. Gustav Hänel, Lex Romana Visigothorum [repr., Aalen: Scientia, 1962], 456). 202 On Erwig’s anti-Judaism, see pp. 189–90 below. 203 Dumézil, ‘Une source méconnue’. 204 Canellas López, Diplomática, no 109. 205 Canellas López, Diplomática, no 138. 206 Toledo IV (a. 633), c. 66. 186

681.207 Although the king’s legislation was supposed to apply throughout the kingdom,208 two months seem a very narrow window for news of the policy to circulate and for the oaths and professions to be made. Travel in the early Middle Ages could be slow, and if modern estimates are correct, then even a traveller travelling during western imperial rule, when taxes and roads were more centrally collected and maintained,209 would have required approximately half the time of Erwig’s grace period simply to cross the Iberian peninsula from one end to the other.210 Given that reality, Erwig’s oath may have been immediately directed at Jewish communities living closer to the centre of Visigothic power, in or around the royal capital at Toledo. Both the conversion oath of 637 and the conversion oath of 659 had been sworn by Toledan Jews,211 and the text of the conversion oath of 681 had been approved at the twelfth council of Toledo earlier that winter.212 Erwig himself had probably served as a royal official in Toledo, the comes Toletanus or Toleti, prior to becoming king.213 Moreover, on different occasions when Visigothic kings were eager for oaths to be sworn, for example when exacting the royal fidelity oath, surviving legislation provides no comparable time limit, simply penalizing people who ‘delayed’.214 If the conditio of 681 ever gave rise to a perjury dispute, we do not know; yet subsequent councils may have continued to refer to these procedures well into the .215

207 LV 12.3.13 (Erwig): ‘ab anno primo regni nostri, kal. scilicet Feb. usque in supervenientibus kal. Aprilibus’. 208 LV 12.3.13 (Erwig): ‘per universas regni nostri’. 209 See e.g. Wickham, Framing, 62–80. 210 From Cádiz to to Le Perthus: Raymond Chevallier, Roman Roads, tr. N. H. Field (Berkeley and Los Angeles: The University of California Press, 1976), 194. On the difficulties of early medieval travel, see Gregory I. Halfond, The Archaeology of Frankish Church Councils, AD 511–768 (Leiden: Brill, 2010), 78–85. 211 See p. 186 nn. 204–5 above. 212 Toledo XII (a. 681), c. 8. 213 Felix of Toledo, Vita Iuliani, 10; cf. Toledo XIII (a. 683), Item de viris inlustribus officii palatini. 214 LV 2.1.7 (), which provided instructions for royal officials exacting the oath, the so-called discussores iuramentorum, sanctioned only those free persons who ‘delayed’ their swearing unreasonably: ‘Si quis sane ingenuorum … quaesita occasione se fraudulenter distulerit … quicquid de eo vel de omnibus rebus suis principalis auctoritas facere vel iudicare voluerit, sui sit incunctanter arbitrii.’ Meanwhile, in less politically sensitive matters, the witnesses to a will which had been orally made had up to six months to declare the contents of the will in their own conditiones sacramentorum (L.V. 2.5.12 [Recceswinth, Erwig]). 215 Toledo XVII (a. 694), c. 8. 187

Assuming that Toledan Jews were the targets of Erwig’s legislation, we can also say more about the identity of the intended oath recipient. In 681, the bishop of Toledo, to whom the oath and the profession were due,216 was none other than Bishop Julian, who had presided at Toledo XII that winter.217 As one of the principal injured parties in any perjury dispute, whom the perjuror allegedly ‘mock[ed] … through the promise of this, my oath’,218 Julian was in a position to take a legally informed and serious view of any perjury. While he was still a deacon, in the middle of the 670s, Julian had composed a panegyrical account of the early reign of Erwig’s immediate predecessor, King Wamba (r. 672–80). In his conclusion to that account, Julian revised and appended a copy of a secular judicial decree which had been handed down against one of Wamba’s political opponents, the dux Paulus, in September 673.219 This Iudicium in tyrannorum perfidiam promulgatum sentenced the dux Paulus in accordance with two pieces of legislation, one of which proved to be the famous seventy-fifth canon of Toledo IV, regulating the swearing of the royal fidelity oath. ‘These texts having been examined and read through,’ the judgment records, ‘we could no longer hesitate or fear to chastise in their bodies and properties … those whom the fathers had already damned in spirit.’220 Furthermore, a second detail in Julian’s biography may have sensitized him to any perjury of the conditio of 681. According to early medieval tradition, Julian was of Jewish origin, though he himself had been reared as a Christian.221 If that report is accurate, Julian’s relatives and their acquaintances may have numbered amongst the Toledan Jews who swore the conversion oaths of 637 and 659, the latter of which noted that the converts had been

216 See p. 173 n. 122 above: ‘omnia, quecumque in professione mea renotanda curavi vel collegere potui, quam tibi domino meo illi, illius sedis episcopo, manu mea subscriptam dedi’. 217 L. A. García Moreno, Prosopografía del reino visigodo de Toledo, Filosofía y letras 77 (Salamanca: The University of Salamanca, 1974), no 251. 218 See p. 173 n. 122 above: ‘si vos in quocumque per huius iuramenti mei promissionem inlusero’. 219 Julian of Toledo, Historia Wambae regis, Iudicium in tyrannorum perfidiam promulgatum. On the composition of the Historia, and for Julian’s edition of the decree, see Pizarro, ‘Introductory Essay’, 78–81, 95–8, 163–7. 220 Julian of Toledo, Historia, Iudicium, 7, ed. W. Levison, MGH SS rer. Mer. 5 (Hanover: Hahn, 1910), 534: ‘His excursis atque perlectis … non ultra nobis est dubitandum, ut illos paveamus … et in corpore et in rebus temporali puniri censura, quos iam patres illi … damnaverunt in anima’ (tr. Pizarro, Story, 238–9). 221 Continuatio Hispana, 50. 188

suspected for the perjury of a previous, coercive oath, sworn under the previous king.222 Either way, Julian may well have been acquainted with oaths of this type and their enforcement.

Distressingly for modern readers, Julian’s reported Jewish background and the ferocious language of Erwig’s legislation raise the difficult question of Visigothic ‘anti-Judaism’ or ‘anti- Semitism’, terms which some historians have applied to the Visigothic kingdom. According to Amnon Linder, for example, an historian of late antique and early medieval Jewish communities, the group of anti-Jewish materials approved at Toledo XII (including the terms of our conditio) amounted to ‘a coherent body of legislation to annihilate “the Jewish pest”, radically and finally’.223 This question lies outside the scope of our dissertation, yet ‘anti-Judaism’ may have been a contributing factor to the conditio’s exceptional length and to its preservation in the legislative record. Notably, when King Erwig issued his second and revised version of The Book of the Judges, he appended twenty-eight of his own ‘new laws’ (novellis legibus), all of which placed legal restrictions on Jews and Jewish Christians.224 If the swearing of any oath always indicated a degree of social mistrust, as Augustine had thought it did in the fourth century,225 then the fear of ‘Jewish perjury’ or ‘perfidy’ probably played a decisive role in Erwig’s legislation.226 At the same time, however, the characteristic features of the conditio of 681 were not unique to this occasion. As we have seen, the new diplomatic form of the conditio sacramenti could be employed for many reasons, even relatively mundane ones;227 while extreme supernatural penalties were to be stipulated in sworn donations of land,228 contracts of purchase and sale,229

222 Canellas López, Diplomática, no 138, p. 213: ‘Ben quidem ac iuste dudum nos meminimus compulsos fuisse, ut placitum in nomine dive memorie Chintilani regis pro conservanda fide catholica conscribere deberemus, sicut et facimus. Sed quia et perfidia nostre obstinationis et vetustas parentalis erroris non ita detinuit … idcirco nunc libenter hac placite spondimus glorie vestre.’ 223 Amnon Linder, The Jews in the Legal Sources of the Early Middle Ages (Detroit: Wayne State University Press, 1997), 514. 224 LV 12.3.1–28. 225 Augustine, De sermone Domini in monte, 1.17.51. 226 LV 12.2.11 (Recceswinth), 12.2.15 (Recceswinth), 12.2.18 (Egica), 12.3.1 (Erwig), 12.3.4 (Erwig), 12.3.14 (Erwig), 12.3.28 (Erwig). 227 See p. 178 n. 154 above. 228 Corcoran, ‘Donation’; Formulae Visigothicae, nos 7–8. 229 Velázquez Soriano, Las pizarras, no 39. 189

manumissions of slaves,230 spousal gifts,231 and inheritances.232 Likewise, candidates for clerical ordination and promotion in the province of Carthaginensis were required to undergo similar procedures to those for converting Jews,233 and the perjury conviction attested by Julian of Toledo pertained to a secular aristocrat.234 Even the highly charged synonym for perjury to be found in Visigothic anti-Jewish legislation, perfidia, was employed for the same perjuror,235 for Theuderic and Brunhilda in Sisebut’s Life and Martyrdom of St Desiderius,236 and even in Isidore of Seville’s etymology for the ‘oath’.237 On balance, while the conditio of 681 can be treated as an anti-Jewish or anti-Semitic text, most of the oath’s features and its treatment of perjury reflected mainstream developments in Visigothic society.

Indeed, a final feature of the conditio of 681 marks it as consistent with the patristic inheritance, and coincidentally furnishes some insight into the document’s drafter. According to the text, the prospective convert acknowledged all of the penalties for perjury ‘if I … do not complete the things which I have promised … with the same intention, just as they were heard or understood by you when I was professing’.238 This language seems to paraphrase Augustine’s definition of perjury, which we encountered in the previous chapter: ‘[T]he promise of an oath is fulfilled not according to the words of the person swearing the oath, but according to the expectation of the person to whom the oath is sworn.’239 For the drafter of the conditio of 681, and

230 Formulae Visigothicae, no 5. 231 Formulae Visigothicae, no 15. 232 Formulae Visigothicae, no 24. 233 See pp. 184–5 above. 234 See p. 188 above. 235 Julian of Toledo, Historia, Iudicium in tyrannorum perfidiam promulgatum (my emphasis). 236 See p. 156 n. 6 above: ‘[S]ed martyrem Dei nec comminatio mortalium fregit, nec ira perfidorum emolluit.’ 237 Isidore of Seville, Etymologiae, 5.24.31, ed. W. M. Lindsay, Isidori Hispalensis Episcopi Etymologiarum sive Originum Libri XX, i (Oxford: The Clarendon Press, 1911): ‘vocatum autem sacramentum, quia violare quod quisque promittit perfidiae est’. 238 See p. 173 n. 122 above: ‘si … sub specie cuiuslibet iuramenti ea, que promisi, non ea intentione perfecero, sicut a vobis me profitente audita vel intellecta sunt’. 239 Augustine, Epistulae, 125.4, ed. A. Goldbacher, CSEL 44 (Vienna: Tempsky, 1904), 6: ‘Illud sane rectissime dici non ambigo, non secundum uerba iurantis sed secundum expectationem illius, cui iuratur, quam nouit ille, qui iurat, fidem iurationis impleri’ (tr. Teske, Works, ii, 160). For discussion of the Pinianus affair, see ch. 3, ‘Peccatization’, pp. 148–53. 190

perhaps for any parties involved in the actual swearing of this oath, the expectations of the oath recipient, Julian of Toledo, were supposed to be paramount. As a practical matter, such an acknowledgement could have biased any perjury proceeding in favour of the oath recipient, who might claim disappointment; remarkably, the conditio’s terms make clear that the provisions applied to any oath, which the oath taker may have sworn to Bishop Julian on other occasions.240 As an intellectual matter, however, this acknowledgement distinguishes the drafter as a person of significant ecclesiastical education, who was familiar with patristic conceptions of oaths and perjuries and was capable of applying them in practice. If the formulator of our text did not derive his understanding directly from Augustine, whose letters on the Pinianus affair may or may not have been available,241 the drafter could have derived his conception from Isidore, who likewise paraphrased Augustine’s definition in his own book of Opinions. According to this work, probably composed toward the end of Isidore’s life, the bishop of Seville insisted that an oath was to be interpreted ‘just as he to whom [the oath] is sworn understands it’.242 Isidore’s phrasing proves to be somewhat closer to the conditio’s, and may indicate to us what texts were being used at the cathedral school where Julian is thought to have been educated.243

To be sure, not all of the oath formulas used in Visigothic Iberia emerged from such a rarefied environment, yet clerical culture was probably responsible for many of the oath texts which have survived. Clerics in minor orders probably constituted the majority of the scribes who recorded and copied these arrangements, and the infernalization of perjury must be seen at least partially in that context.244 One indication of the clerical context for these formulas may be the recourse that documents often had to specifically ecclesiastical procedures. Although the conditio of 681 was enforceable in a royal court, and although the penalties in the penalty clause were

240 See p. 173 n. 122 above: ‘sub specie cuiuslibet iuramenti’. On the absence of a presumption of innocence, cf. ch. 2, ‘Criminalization’, pp. 47, 84. 241 Cf. Pierre Cazier, ‘Index Fontium’, in Cazier, ed., CCSL 111 (Turnhout: Brepols, 1998), 352–4. 242 Isidore of Seville, Sententiae, 2.31.8, ed. Cazier, CCSL 111, p. 156: ‘sicut ille cui iuratur intellegit’. For the composition see Cazier, ‘Introduction’, in ibid., xiv–xix. 243 García Moreno, Prosopografía, no 251. 244 When the names of individual scribes become available, from the ninth century onward, upwards of ninety percent of them can still be identified as clerics and/or monastics: Adam J. Kosto, ‘Laymen, Clerics, and Documentary Practices in the Early Middle Ages: The Example of Catalonia’, Speculum 80 (2005): 59–60. 191

exclusively supernatural, many of the other penalty clauses in our sample set of forty-four oath texts also called for ecclesiastical, canonical sanctions. According to the first, mutilated document of The Visigothic Formulary, transgressors of the agreement were to be ‘guilty before God, estranged from holy communion, [and] segregated from the Catholic flock’.245 According to the first complete oath to survive from the collection, penalties of both a supernatural and a canonical character were intertwined, while a financial penalty was separated out at the end: ‘[I]f … either I or anyone dare to come against this liberty, let him first incur the judgment of God and be rendered a foreigner to the sacrosanct altar, and let him descend alive into hell just like Dathan and Abiron … and, moreover, let him deliver to you so many pounds of gold.’246 Occasionally, documents even specified how these canonical sanctions were to be applied. In the donation of Vincent of Huesca, the donor called for perjured or falsely adjured individuals to be ‘expelled from the thresholds of the sacrosanct church [and] anathematized by the authority of all the bishops’ (my emphasis),247 a procedure also requested in The Visigothic Formulary.248 By contrast to extreme supernatural penalties, which presumably only God could enforce, canonical sanctions were enforceable by humans – at least in theory. Much depended on the availability of church councils,249 but at least one act of excommunication and anathematization has survived by a single bishop (interestingly enough, an excommunication performed in a case involving Jewish communities).250 Such sanctions may have lent some this-worldly meaning to otherwise other- worldly imprecations, and attest the ecclesiastical interests of the people who produced our documents.

245 Formulae Visigothicae, 1, ed. Zeumer, MGH Form. 5, p. 575: ‘Sit ille Deo reus, sit a sancta communione alienus, sit a consortio iustorum extraneus, sit a grege catholico segregatus.’ 246 Formulae Visigothicae, 5, ed. Zeumer, MGH Form. 5, p. 577: ‘[S]i … contra hanc libertatem aut ego aut quicumque venire temptaverit, primitus iuditium Dei incurrat et a sacrosancto altario efficiatur extraneus, et sicut Datam et Abiron vivus in infernum descendat … et insuper inferat vobis auri libras tantas.’ 247 Corcoran, ‘Donation’, 218, ll. 7–9: ‘a sacrosancte ecclesie liminibus arceatur auctoritate omnium sacerdotum anathematizandus’. 248 Formulae Visigothicae, no 45. One formula in the collection even seemed to request a civil procedure under Roman law: ‘sacrilegii crimine teneatur obnoxius’ (Formulae Visigothicae, 6, ed. Zeumer, MGH Form. 5, p. 578). For perjury as sacrilege, see ch. 2, ‘Criminalization’, pp.; on the compatibility of the oath with public authority, see Jeffrey A. Bowman, ‘Do Neo-Romans Curse? Law, Land, and Ritual in the Midi (900–1100)’, Viator 28 (1997): 1–32. 249 For which see pp. 195ff. below. 250 Canellas López, Diplomática, no 102. 192

Importantly, this recourse to canonical sanctions did not contradict the royal justice already referred to,251 but complemented and overlapped with it. The choice of a secular or ecclesiastical magistrate for the trial of any perjury complaint must have depended on local circumstances, and these were subject to considerable variation. In a fifth- or sixth-century Antiqua, the Visigothic monarchy already directed its decrees to be delivered and disputes to be settled before a bishop, in the event that the local magistrate had died and not been replaced.252 Another Antiqua conceded that local magistrates might have to rely on the bishops or different magistrates in order to compel a defendant to appear, since the ‘authority’ of a bishop could be ‘greater’.253 In the case of the conditio of 681, ecclesiastical norms and individuals would certainly have been involved in any perjury dispute, even though Erwig’s legislation called for secular procedures. Bishop Julian, as we have seen, was the principal injured party in such a dispute, and the oath and the profession were supposed to be conserved in his episcopal archive.254 Remarkably, the very text of our oath possessed a hybrid status in royal and canon law, since the text was both promulgated legislatively and approved at the twelfth council of Toledo.255 Such hybridity does not seem to have been surprising to Visigothic audiences, who expected royal and ecclesiastical authority to overlap. In the case of the dux Paulus, for example, the secular aristocrat was condemned by a military tribunal presided by the king, yet the same tribunal (if Julian’s edition of the iudicium is to be believed) cited the famous seventy-fifth canon of Toledo IV.256 Depending on the circumstances of the case, the identity of the disputants, and the provisions inserted in the documents themselves, sworn private agreements called for enforcement before either ecclesiastical or secular tribunals, which seem to have shared authority on an ad hoc basis.

Taken collectively, the Visigothic documentary record attests both rigidity and choice, intransigence and flexibility, with respect to the discipline of perjuries. On the one hand, the

251 See pp. 185–6. 252 LV 7.5.1 (Antiqua): ‘si contingat illos auditores vel iudices mori’. 253 LV 7.1.1 (Antiqua): ‘Quod si [reum] nec ipse iudex per alicuius potentis defensionem aut patrocinium … discussioni sue presentare non potuerit … episcopo vel iudici denuntiet, ut eorum maior auctoritas hunc iudicio faciat presentari.’ 254 See p. 172 n. 119 above: ‘in archivis sue ecclesie’. 255 See 171–2, 188 above. 256 See p. 188 n. 220 above: ‘[N]on ultra nobis est dubitandum, ut illos paveamus … et in corpore et in rebus temporali puniri censura, quos iam patres illi … damnaverunt in anima.’ 193

infernalization of perjury seemed to leave very little wiggle room even to penitent perjurors, while certain oath takers – like Pinianus in the patristic era – may have had very little choice in the act of swearing.257 On the other hand, the use of the oath itself did usually remain a choice, and the independent recording of an oath as a conditio sacramenti represented a diplomatic innovation. Employing a wide variety of biblical allusions, other literary devices, and extreme supernatural penalties, the drafters of our documents, in addition to the secular and ecclesiastical magistrates and community at large who oversaw these procedures, endeavoured to persuade their oath takers not to violate these oaths – and any other interested parties not to violate them, too. In the event of a violation, the documents’ language hoped that the perjured or falsely adjured individual would be liable to a combination of secular, ecclesiastical, and supernatural penalties; threats of suspension from communion intermingled with the threat of hellfire, and some penalty clauses raised the stakes by attempting to foreclose the possibility of penance altogether.258 Thus the ferocious language of Visigothic legislation and certain of our oath formulas can conceal an underlying diversity of forms and practice, which probably served as an essential element in any Visigothic perjury regime. As Rachel Stocking has emphasized about the development of Visigothic canon law, ‘The tradition was much more flexible than is at first apparent’, and this flexibility proved crucial to its adoption in the early Middle Ages.259 Although the Visigothic documentary record may be small, it nonetheless suggests that early medieval Iberians highly prized their oaths, occasionally felt fear when they swore or perjured themselves, and looked to a diversity of mechanisms – social, rhetorical, ecclesiastical, and secular – in order to vindicate these oaths, both in this world and the next.

257 For Augustine’s arguments defending the exaction of oaths through social pressure and legal requirement, see ch. 3, ‘Peccatization’, pp. 148–53. Nevertheless, documentary culture maintained the principle that Iberia’s converting Jews swore freely: cf. Canellas López, Diplomática, no 138, p. 213: ‘nunc libenter hac placite spondimus’. 258 See p. 178 n. 159. 259 Stocking, Bishops, 34. 194

10 The Evidence of the Canons: Perjury, False Witness, and Conspiracy at the Sixth Council of Toledo (a. 638)

By contrast to the documentary record, which is relatively poor, the surviving canons and decrees of Visigothic church councils are voluminous. As we saw in the introduction to this chapter, no fewer than sixteen councils meeting on Iberial soil between 546 and 694 issued at least twenty-three canons and decrees touching on perjuries specifically.260 Moreover, this body of conciliar legislation and adjudication represented an important contribution to the development of a ‘law of perjury’ in the Latin legal tradition. While perjury and false witness were certainly justiciable offences in the secular law codes of the Visigothic kingdom, The Book of the Judges continued to deal with these offences only on occasion. In Erwig’s second and revised edition of The Book of the Judges, the standard Latin vocabulary for ‘perjury’ occurs in just six individual statutes – a figure comparable those for the explicit references to perjury in The Theodosian and Justinianic Codes.261 In the area of canon law, meanwhile, church councils which met in other parts of the former western empire seem to have taken a smaller interest in perjuries than did the church councils in Visigothic Spain. In North Africa, where the conciliar tradition of formulating ecclesiastical ‘canons’ began early, and where one might expect to find abundant perjury legislation, oath violations appear to be almost entirely absent from surviving conciliar records.262 In the Merovingian church, by contrast, church councils did legislate on perjuries specifically, yet the number and the detail of the surviving canons pertinent to our topic are much inferior to what comes down to us from the Visigothic church.263 For reasons which must remain at least partially mysterious, but which may reflect the interest in perjuries taken by Visigothic scribal clerics, bishops assembled in Visigothic church councils chose to legislate on perjuries, repeatedly and often abundantly.264

260 See p. 158 n. 17 above. 261 LV 2.4.3 (Chindasuinth), 2.4.7 (Erwig), 2.4.14 (Antiqua), 8.2.1 (Antiqua), 12.3.13 (Erwig), 12.3.15 (Erwig). For explicit references to perjury in the imperial codifications, see p. 13 nn. 67–8. 262 On the early history of the North African councils, see e.g. Jean Gaudemet, Église et cite (Paris: Cerf, 1994), 43– 4, 52–3. 263 See e.g. Orléans I (a. 511), c. 1; Épaone (a. 517), c. 13; Orléans III (a. 538), c. 9(8); Mâcon I (aa. 581–3), c. 18(17). 264 Again, my citation of Visigothic canonical evidence is necessarily imprecise. In addition to canons and decrees which may not have survived (for which see pp. 158–9 nn. 18–19 above), other canons are subject to interpretation in the ways in which they refer to perjuries. For example, many of the canons which I have cited do not use forms of the 195

Within our body of twenty-three canons and decrees, numerous types of perjury appear. More than a third of them deal with violations of the royal fidelity oath, commencing with the seventy-fifth canon of Toledo IV in 633.265 If we also count the oaths sworn by kings in addition to the oaths sworn to kings, then more than half of the surviving Visigothic perjury canons and decrees touch on the person of the monarch.266 Despite this significant royal focus in Visigothic canonical legislation, multiple Visigothic perjury canons also addressed oath violations in more mundane circumstances. In 546, the provincial council of Lérida in northern Spain memorably sanctioned the perjuries of lay litigants who swore ‘never to return to peace’ with one another.267 In 590, a southern provincial council, the first council of Seville, attempted to enlist secular magistrates in the enforcement of canonical strictures against clerical cohabitation with women, binding the magistrates by means of oath taking and suspending them from communion if they failed to fulfil their promises.268 Similar to imperial policies which imposed an oath against corruption on imperial administrators,269 the eleventh council of Toledo required newly elected bishops to swear an oath against simoniacal behaviour,270 while the twelfth council of Toledo sanctioned secular lords who tolerated ‘idolatrous’ customs on their estates, contrary to their oaths to do otherwise.271 Penalties for these different types of perjury could range from a year’s suspension from communion, with fasting and almsgiving (in the case of lay litigants, Lérida [a. 546], c. 7), to lifelong excommunication with anathematization and banishment (in the case of perjury to the king, Toledo XVI [a. 693], cc. 9–10, Decretum iudicii ab universis editum).

word ‘perjury’ explicitly, yet describe a situation in which perjury was manifestly committed. According to the first council of Seville, for instance, secular magistrates were to be sanctioned when they violated an oath sworn to a bishop: ‘dato tamen ǁ a iudicibus sacramento episcopis … si restituerint ipsi iudices sententia excommunicationis feriantur’ (Seville I [a. 590], c. 3). On the other hand, I have excluded from my list many of those canons which address perfidia (a synonym for perjury: see p. 190 above) in terms which are too vague to determine if a violated oath was at issue: see e.g. Toledo XVI (a. 693), c. 1. 265 Toledo IV (a. 633), c. 75; Toledo V (a. 636), cc. 2, 7; Toledo VII (a. 646), c. 1; Toledo X (a. 656), c. 2; Toledo XIII (a. 683), c. 1; Toledo XVI (a. 693), cc. 9–10, Decretum iudicii ab universis editum; Toledo XVII (a. 694), c. 7. 266 Toledo VI (a. 638), c. 3; Toledo VIII (a. 653), c. 2; Toledo XV (a. 688); 267 Lérida (a. 546), c. 7. 268 Seville I (a. 590), c. 3: ‘dato tamen ǁ a iudicibus sacramento episcopis ut [mulieres] clericis nulla arte restituant; quod si restituerint ipsi iudices sententia excommunicationis feriantur’. 269 See ch. 2, ‘Criminalization’, pp. 64–5. 270 Toledo XI (a. 675), c. 9. 271 Toledo XII (a. 681), c. 11. 196

Curiously, testimonial perjury or false witness is mostly absent from these canons, though one of the councils did adjudicate such a case, as we shall see presently.272

Indeed, the survival of adjudicating decrees by Visigothic church councils as well as the ‘canons’ themselves indicates that not all of these canonical materials were strictly normative in nature. As I suggested in my discussion of Roman law, one of the evidentiary problems with centrally promulgated legislation is that it may not be the best guide to actual legal practice,273 and many of the Visigothic canons share this problem. Most were issued by national or inter-provincial synods, convoked or even provided with agendas by the king.274 Only a few of our canons were the products of local, provincial synods, and even some of these councils probably received substantial input from the monarchy.275 Nevertheless, this problem is slightly ameliorated by the survival of two conciliar decrees, issued at the sixth council of Toledo in 638 and the sixteenth council of Toledo in 693, respectively.276 Although both these councils were summoned by the king,277 they also attest the discipline of named perjurors and false witnesses, some of whom committed their offences at the local level. By contrast to the other canons, which tend to be generally phrased, these decrees are specific enough to allow us to see behind the articulation of a canonical norm to the particular case which undergirded it.278 At the same time, by contrast to the documentary record, these decrees also illustrate which specific norms could be subject to enforcement. Perhaps inevitably, different historians’ assessments of the effectiveness of any perjury laws or canons will be affected by their differing assessments of royal and episcopal power,

272 For a canonical condemnation of false witness (as opposed to perjury) in Iberian conciliar tradition, see Elvira (a. 305–6?), c. 74. 273 See pp. 16–17, 75. 274 See e.g. Toledo IV (a. 633); Toledo VI (a. 638); Toledo VII (a. 646); Toledo VIII (a. 653); Toledo X (a. 656); Toledo XII (a. 681); Toledo XIII (a. 683); Toledo XVI (a. 693); Toledo XVII (a. 694). 275 See e.g. Toledo XI (a. 675), c. 9. For other provincial canons, see Lérida (a. 546), c. 7, Seville I (a. 590), c. 3. 276 Toledo VI (a. 638), Exemplar iudicii inter Martianum et Aventium episcopos, and Toledo XVI (a. 693), Decretum iudicii ab universis editum. 277 Toledo VI (a. 638), Item concilium Toletanum VI, XLVIII episcoporum [universale] habitum [in nomine Domini nostri Iesu Christi feliciter]: ‘[c]onvenientibus nobis … summi orthodoxi et gloriossisimi Chintilani regis salutaribus hortamentis’; Toledo XVI (a. 693), In nomine Domini Iesu Christi incipit synodus Toletana XVI: ‘ita serenissimum ac religiossisimum praedictum Egicanem principem cuius iussu fraternitatis nostrae coetus est adunatus’. 278 Cf. Halfond, Archaeology, 102. 197

which waxed or waned depending on the time and place. As the title of one recent article suggests, the Visigothic monarchy may well have been strong in theory, yet weak in practice,279 a phenomenon which led to the sort of reliance on local bishops for the enforcement of even secular laws which we briefly saw above.280 As these two Visigothic conciliar records suggest, the enforcement of Visigothic perjury norms could be real, but also episodic and selective.281

Of the two cases, the second proves to be less detailed, and I will deal with it rapidly. In 693, the sixteenth council of Toledo tried an alleged case of political perjury, of primary importance for the king and the upper echelons of the clerical hierarchy. According to the council’s Decretum iudicii ab universis editum, and to a pair of canons which accompanied this decree,282 Julian of Toledo’s successor as the bishop of the royal capital, a certain Sisibert, was accused and convicted of violating his royal fidelity oath, sworn to Erwig’s successor, King Egica (r. 687– c.703). Like the dux Paulus before him,283 Bishop Sisibert fell victim to the provisions of Toledo IV’s seventy-fifth canon, which regulated the royal fidelity oath but also condemned all perjurors in a lengthy, scripturally cited preamble.284 This canon, reaffirmed by subsequent councils285 and ordered to be recited at all future councils,286 called for the anathematization and excommunication of political perjurors, including the clergy, and the text was quoted and recited by the council on this occasion:

Whoever, therefore, from amongst us or from amongst the people of all Spain, should pollute the oath of his faith which he promised on behalf of the state of the

279 Pablo C. Díaz and María R. Valverde, ‘The Theoretical Strength and Practical Weakness of the Visigothic Monarchy of Toledo’, in Frans Theuws and Janet L. Nelson, eds, Rituals of Power from Late Antiquity to the Early Middle Ages, TRW 3 (Leiden: Brill, 2000), 59–93. 280 See p. 193 nn. 252–3. 281 On the episodic character of both secular and ecclesiastical legislation in the Visigothic kingdom, see Collins, Early Medieval Spain, 115, 118, 127. For a more optimistic assessment of the power of the Visigothic monarchy, see Céline Martin, ‘Les agents territoriaux et leur évolution: Vers la centralisation’, in eadem, La géographie, 143–203. 282 Toledo XVI (a. 693), cc. 9–10. 283 See pp. 188, 193 above. 284 See p. 171 n. 113. 285 See e.g. Toledo V (a. 636), c. 7; Toledo VI (a. 638), c. 18; Toledo XVI (a. 693), c. 10. 286 Toledo V (a. 636), c. 7. 198

country and people of the Goths or for the conservation of the royal salvation, by means of whatever conspiracy or effort … shall be anathema in the sight of both God the Father and the angels, and rendered a foreigner from the Catholic church which he shall have profaned by perjury.287

In 693, Toledo XVI reapplied this ruling, which it variously characterized as ‘an ancient canon’ and ‘the former edict of a synodical sanction’.288 The exact circumstances of Bishop Sisibert’s perjury are far from clear, yet he may have given support and sworn an oath to a rival claimant to the Visigothic throne, one Suniefred. In the early 690s, Suniefred appears to have led a military rebellion against Egica, and was powerful enough to mint his own coins – at the city of Toledo, the royal capital and Sisibert’s see.289 In any case, the bishops at Toledo XVI faulted Bishop Sisibert for his conduct, ‘depos[ing him] from the episcopal order and honour, [and] sentenc[ing him] to endure a perpetual exile, excommunicated from the reception of the body and blood of Christ, only to receive communion at the end [of his life]’.290

By contrast to the case of Bishop Sisibert, the earlier case of perjury proves to be much more detailed. It is also less politically charged, and may give us an idea of the experiences of ordinary perjurors and false witnesses in ecclesiastical proceedings during the early Middle Ages. In 638, the sixth council of Toledo issued a Iudicium inter Martianum et Aventium episcopos, settling a decades-long dispute between the rival bishops of Écija, Martianus and Aventius, in the

287 Toledo XVI (a. 693), c. 10: ‘[N]ostrae definitioni ex antiquo canone quaedam et necessaria innectimus et omne in conmune ipsis verbis quibus ut diximus hoc deprompsit antiquitas, proclamamus dicentes: Quicumque igitur a nobis vel totius Hispaniae populis, qualibet coniuratione vel studio sacramentum fidei suae quod pro patriae gentisque Gothorum statu vel pro conservatione regiae salutis pollicitus est temeraverit … anathema sit in conspectu Dei et Patris et angelorum, atque ab ecclesia catholica quam periurio profanaverit efficiatur extraneus.’ Cf. Toledo IV (a. 633), c. 75. 288 See p. 199 n. 287 above, and Toledo XVI (a. 693), Decretum iudicii: ‘edictum priscum synodicae sanctionis’. 289 George C. Miles, The Coinage of the Visigoths of Spain from Leovigild to Achila II, Numismatic Series 2 (New York: The American Numismatic Society, 1952), no 454, p. 405: ‘Svniefredvs Toleto pivs’. 290 Note that these conditions transcended the limits recommended in The Apostolic Canons, which called for deposing perjured clergy but not suspending them from communion (see ch. 3, ‘Peccatization’, p. 106 nn. 57, 59). Toledo XVI (a. 693), Decretum iudicii: ‘Unde nos per huius decreti formulam saepe dictum Sisibertum … ab episcopali ordine et honore deicimus, a perceptione corporis et sanguinis Christi excommunicatum in exilio perpetuo manere censemus, in fine tantum conmunionem per omnia percepturus.’ 199

southern province of Baetica.291 At more than two hundred lines of text in its modern printed edition,292 this decree is far longer than Toledo XVI’s Decretum. It also has a quite different manuscript transmission; whereas the Decretum of Toledo XVI was included in the Collectio Hispana,293 the Exemplar iudicii inter Martianum et Aventium episcopos survives in a unique, Carolingian-era manuscript, preserved at the cathedral library in León.294 The reasons for this document’s exclusion from the Hispana are unknown, and may reflect nothing more than the preference of compilators for canons which were generally phrased.295 Nevertheless, the most recent student of the episode, Rachel Stocking, has suggested that the documents on which Toledo VI based its judgment may have been deliberately suppressed. As we shall see, the iudicium of Toledo VI reversed or modified the decisions of previous councils, including the influential Toledo IV.296 In 633, Toledo IV was presided by Isidore of Seville, whose circle was responsible for the first edition of the Hispana and whose province included the disputed see of Écija. According to Stocking, Isidore had good reason ‘to keep the case under wraps’, lest a contrary finding expose both him and the bishops who had judged alongside him to a negative judgment of their own.297

In the version of events recorded at Toledo VI, Bishop Martianus of Écija had been the victim of a conspiracy. According to the iudicium, Martianus was tried and deposed at a provincial synod, apparently the third council of Seville of c.620–4.298 At that council, where Isidore presided, a deacon of the church of Écija, a certain Aventius, brought multiple accusations against his bishop,

291 For the most recent treatment of this dispute, see Rachel L. Stocking, ‘Martianus, Aventius, and Isidore: Provincial Councils in Seventh-Century Spain’, Early Medieval Europe 6/2 (1997): 169–88. 292 Felix Dahn, Die Könige der Germanen: Das Wesen des ältesten Königthums der germanischen Stämme und seine Geschichte bis zur Auslösung des karolingischen Reiches, vi: Die Verfassung der Westgothen, Das Reich der Sueven in Spanien (Leipzig: Breitkopf and Härtel, 1885), 615–20. 293 See pp. 161–3 above. 294 León, Archivo de la Catedral, 22. 295 See p. 197 n. 278 above. 296 Exemplar iudicii, B.1–2, ed. Dahn, Die Könige, 615–16: ‘Hinc est enim quod dudum in concilio Spalensi … exauctoratus. … Jam enim in praecedenti universali concilio … fuerat auditus.’ 297 Stocking, ‘Martianus’, 172. Notably, Toledo VI exculpated the original judges from any guilt of false judgment, finding that they had been misled by the ‘falsity of the witnesses’: ‘De judicibus autem sub quorum praesentia frater noster Martianus episcopus dudum est dejectus haec per nos reperit indagio veritatis quoniam non astu, neque depravando judicium, sed fefellit eos fallacia testium’ (Exemplar iudicii, G.5, ed. Dahn, Die Könige, 619). 298 Exemplar iudicii, B.1. On Seville III, see Dumézil, ‘Une source méconnue’. 200

some of which involved maladministration and possibly sexual offences as well. According to one of the witnesses, the presbyter Gregory, a serving woman named Ustania had inappropriately entered Martianus’s chambers, arousing the presbyter’s suspicions.299 Other accusations concerned the consultation of diviners; according to two lay witnesses, the otherwise unidentified Ricchesvindus and Dormitio, the bishop had instructed them to escort a female soothsayer named Simplicia into his presence. Martianus proceeded to question her concerning both the life of the king – a potentially traitorous act – and his own life.300 The deacon Aventius evidently made his case successfully, for Isidore’s provincial council deposed Bishop Martianus and substituted Aventius in his place. What transpired during the intervening years is not certain, but by 633 the former bishop of Écija was ready to appeal.301 Over the course of Toledo IV, where Isidore presided for a second time, Martianus succeeded in having himself reinstated to the rank of bishop, though not to the see of Écija itself.302 In 638 he tried once more, this time with greater success. Under the presidency of a new bishop, Sclua of Narbonne,303 Toledo VI restored Martianus to his see, removed Bishop Aventius (though the council left his episcopacy intact), sentenced Aventius to perform a penance under Martianus’s supervision, and pre-emptively excommunicated either party who might challenge the decision in future.304

From the perspective of the current study, what is fascinating about this case is the extent to which it came to turn on the perjuries, false testimony, and other irregularities of the witnesses, who included local clergy, laypeople, and women. Although both Bishops Martianus and Aventius

299 Exemplar iudicii, E.2, ed. Dahn, Die Könige, 617: ‘De ancilla vero nomine Ustania … eo quod vestiariam eam habuisset, ex quibus unum testem discutientes nomine Gregorium presbyterum, dixit nobis quia vidisset eam ingredi in cubiculo episcopi.’ 300 Exemplar iudicii, D.2, ed. Dahn, Die Könige, 617: ‘[A]dductus est Ricchesvindus, qui ita testificaverat eo quod divinam nomine Simpliciam, per jussionem supradicit Martiani episcopi, ad ejus praesentiam cum Dormitione perduxisset, quam ille de vita regis, aut sua consuluisset.’ Cf. PS 5.21.3: ‘Qui de salute principis … mathematicos hariolos haruspices uaticinatores consulit, cum eo qui responderit capite punitur.’ 301 Exemplar iudicii, B.2, ed. Dahn, Die Könige, 616: ‘ex parte fuerat auditus’. 302 Exemplar iudicii, B.2, ed. Dahn, Die Könige, 616: ‘et gradui tantum, et non loco restitutus’. 303 García Moreno, Prosopografía, no 528. 304 Exemplar iudicii, G.4–5, ed. Dahn, Die Könige, 619: ‘Porro de Aventio episcopo haec nostrae sententiae moderationis sententia humanitate Concilii promulgatur, ut pro praemissis excessibus suis sub satisfactione poenitentiae apud fratrem nostrum honore retento subdatur. … [Q]uod si quispiam eorum contra eos vel hanc judicii nostri formulam, quam pro pace ecclesiae et scandali remotione volumus temperare, sibi crediderit reclamandum, tum noverit se excommunione esse privatum et honore dejectum.’ 201

seem to have been present at Toledo VI,305 the hierarchs recede from the council’s narrative. Instead, the text primarily focuses on the witnesses, several of whom are examined, accepted or rejected, and occasionally condemned. According to the iudicium, neither the original testimony of the presbyter Gregory nor that of Ricchesvindus and Dormitio had been acceptable. In the case of Gregory, the council preferred the testimony of several other clergy – presbyters, deacons, and subdeacons – who testified on oath that the serving woman Ustania had never possessed the keys to Martianus’s chambers.306 In the case of Ricchesvindus and Dormitio, the council accepted the competing testimony of two other laypeople, who likewise testified on oath that Ricchesvindus had not been of legal age at the time of the first trial, rendering the testimony of Dormitio – a single witness – inadmissible.307 Most remarkably, however, the key to this local conspiracy was provided by a certain deacon, Eulalius, whose testimony takes pride of place in the bishops’ narrative. According to the iudicium, Eulalius revealed how Aventius had manufactured his case at Seville III:

Furthermore, while the truth was being investigated, the deacon Eulalius disclosed to us the manifold causes of obligation against [Bishop Martianus] in the examination of the most sacred council; and from the vigour of assiduous questioning, [Eulalius] broke down to the point that he openly confessed that that innocent man [viz., Martianus] had been condemned, and that he had been accused by means of malignant machinations. So that [Eulalius] might truthfully prove this matter, he demanded the writings, forged of diverse obligations by which he had bound himself, from Bishop Aventius; such that, having been handed over to him in a perpetual alliance, nothing true could be discovered against Bishop Martianus through [Eulalius], and, in addition, that [Eulalius] would always be hostile to him in his pleadings.

Yet since not only the authority of the canons invalidates the concatenations of such factions or conspiracies, but a sentence of the laws also dissolves them, the deacon himself recited that which had been proffered in his own defence, saying: ‘Neither

305 For Aventius’s presence, see e.g. Exemplar iudicii, C.3, F.5. 306 Exemplar iudicii, E.3, ed. Dahn, Die Könige, 616–17: ‘Nos autem veritatem ad liquidum perquirentes probationem invenimus, id est, Tonantium presbyterum, Joannem diaconum, Lollanem subdiaconum, qui suo sacramento testificati sunt, quia … ancilla supradicta claves cubiculi episcopi non tenuisset.’ 307 Exemplar iudicii, D.3. 202

against the laws nor against good morals can we make agreements’ [P.S. 1.1.4]. The council of Lérida was also opened, in which he is commanded to return to charity through the satisfaction of penance. Thus, indeed, the seventh canon: ‘A litigant who should obligate himself by means of an oath that he might in no way return to peace with someone, is segregated from the communion of the body and blood of the Lord for one year, on account of the perjury. Let him purge his guilt by means of alms, tears, and as many fasts as he may be capable of; truly, let him rapidly hasten to return to charity, which “covereth a multitude of sins”’ [Lérida (a. 546), c. 7; cf. 1 Pet. 4:8].308

This extraordinary text requires some explanation. If the report of the iudicium is accurate, then what appears to have happened is the following: at some point in the late or early 620s, the deacon Aventius and some of his clerical colleagues conspired to remove their bishop from his see. This conspiracy involved the use of written private agreements, the ‘writings, forged of diverse obligations’ (scripturas diversarum confectas obligationum), which the deacon Eulalius now demanded of Bishop Aventius at Toledo VI in 638.309 Unfortunately, the text of the iudicium does not quote any part of these agreements, so we are unable to state what the original documents contained. One possibility, suggested by the iudicium, is that the agreements established a ‘perpetual alliance’ (perpetua societate) between Aventius and Eulalius, by which the latter submitted himself to the former (ei … mancipatus).310 In this case, the document in question may have resembled an agreement between a patron and his client, an ancient type of association for

308 Exemplar iudicii, C.3–4, ed. Dahn, Die Könige, 616–17: ‘Eulalius autem diaconus dum inadagante veritate aperuisset nobis multimodas obligationis contra eum causas, examine sacratissimi concilii, et vigore adsiduae discussionis eo usque est devolutus, ut palam fateretur innoxium eum fuisse damnatum, et malignis machinamentis eum criminatum: quod ut veridice adprobaret, poposcit ab Aventio episcopo scripturas diversarum confectas obligationum, quibus ita se obstrinxerat, ut ei perpetua societate mancipatus, nihil per eum contra Martianum episcopum possit reperiri uerius, insuper objectionibus suis semper ei esset infestus: sed quoniam talium factionum vel conjurationum concinnabula non modo infirmat auctoritas canonum, sed resolvit sententia legum, quam prolatam in sui defensione diaconus ipse relegit dicens: Neque contra leges, neque contra bonos mores pacisci possumus. Reseratum est etiam concilium Hilerdense, in quo jubetur per satisfactionem poenitentiae ad charitatem redire. Era quippe septima ita: Qui sacramento se obligaverit ut litigans cum quolibet ad pacem nullomodo redeat; pro perjurio, uno anno e communione corporis et sanguinis Domini segregatus, reatum suum eleemosynis, fletibus, et quantis potuerit jejuniis abluat; ad charitatem vero, quae operit multitudinem peccatorum, celeriter redire festinet.’ 309 See p. 203 n. 308 above. 310 See p. 203 n. 308 above. 203

which precedent existed even in the Twelve Tables.311 Another possibility, also suggested by the iudicium and not incompatible with the first, is that the document contained a promise by Eulalius to bring charges or testify against Bishop Martianus: ‘so that … nothing true could be discovered against Bishop Martianus through him, and, in addition, that he would always be hostile to [Martianus] in his pleadings’.312 To be sure, the text of the iudicium treats this agreement pejoratively, as an illicit promise to commit perjury and false witness in the future. When similar agreements are produced in court between Aventius and several other clergy, the bishops of Toledo VI characterize these further pieces of evidence as ‘the chains of agreements … that [the clerics] ought to testify against Bishop Martianus falsely’.313 Yet whatever these documents contained, and however they are best characterized, the private agreements amongst the clergy of Écija were probably solemnized by oath. Notably, the canon which Toledo VI invoked against the deacon Eulalius, quoted in the passage above – the seventh canon of the council of Lérida – concerned ‘a litigant who obligate[d] himself by means of an oath’.314 Moreover, the agreements concluded with the remaining clergy included the sworn conditiones of Dormitio and Ricchesvindus, by which the laymen had testified concerning Martianus’s consultation of the diviner.315

Indeed, the documents produced and examined in the trial of Martianus and Aventius shed light on an incident with which we began this chapter. So far as I know, no historian has pointed out the similarity between the alleged conspiracy organized by Aventius and the conspiracy reported in King Sisebut’s Life and Martyrdom of St Desiderius.316 According to the hagiographer, ‘[The devil] … forged certain documents to incriminate [Bishop Desiderius]. … [King Theuderic and Queen Brunhilda] made a pact (conveniunt) with a certain lady who was of noble stock, but

311 Cf. M. H. Crawford, ed., Roman Statutes, The Bulletin of the Institute of Classical Studies Suppl. 64, ii (London: The Institute of Classical Studies, 1996), 582: ‘si patronus clientem fraudem fecerit, sacer esto’. 312 See p. 203 n. 308 above: ‘ut … nihil per eum contra Martianum episcopum possit reperiri uerius, insuper objectionibus suis semper ei esset infestus’. 313 Exemplar iudicii, F.5, ed. Dahn, Die Könige, 618: ‘vinculis placitorum … ut contra Martianum episcopum deberent testificare mendaciter’. 314 Lérida (a. 546), c. 7: ‘[q]ui sacramento se obligaverit ut litigans quum quolibet ad pacem nullomodo redeat’. 315 Exemplar iudicii, F.5, ed. Dahn, Die Könige, 618: ‘[Q]uae placita … recepta, aperta confessione manifestaverunt, se conditiones accepisse … ab Aventio episcopo directas … in quas olim Dormitio et Ricchesvindus testificaverant.’ For other examples of the use of the oath to regulate relationships amongst clergy, see pp. 112 n. 97, 140 n. 263. 316 See pp. 166–7 above. 204

deformed in mind. … Summoned before the council, [Justa] made complaint that she had once been ravished by the most blessed Desiderius.’317 As have seen, such a pact would have been recorded in writing, and the iudicium of 638 attests that such sworn, written agreements were actually considered to exist. These agreements may or may not have been made in Theuderic and Brunhilda’s Burgundy, but they were apparently being made in Sisebut’s Spain – if the chronology is correct, then at the same time or just several years after the author of The Life of Desiderius was writing.318 As we saw in the introduction to this chapter, Sisebut or the author whom he commissioned composed The Life of Desiderius during Sisebut’s kingship, during the second decade or very beginning of the third of the seventh century CE, and the hagiography was probably ‘preserved as an official document in the royal chancery’.319 The third council of Seville, where Aventius made his initial case against Martianus, met in the opening years of the 620s.320 Remarkably, the Visigothic royal author and the bishops at Toledo VI even employed similar rhetoric in order to describe the guilt in which they believed that the various parties had been implicated. According to The Life of Desiderius, Theuderic, Brunhilda, and Justa conspired to produce concinnationes criminum, literally, ‘combinations of accusations’, against Bishop Desiderius.321 According to the iudicium of 638, Martianus was ‘accused by means of malignant machinations’, the ‘combinations of such factions or conspiracies’ (malignis machinamentis criminatum … talium factionum vel conjurationum concinnabula).322

In the case of the deacon Eulalius, his agreement with Aventius left him in a difficult position. On the one hand, Eulalius could choose to honour his agreement and continue to testify against Bishop Martianus at Toledo VI. Indeed, he seems to have done so initially; according to the iudicium, Eulalius confessed to the conspiracy only after he had nearly ‘broke[n] down’ under

317 Sisebut, Vita, 4, ed. Krusch, MGH SS. rer. Mer. 3, p. 631: ‘[E]t adversus famulum salvatoris talia fraudis documenta fraudator abtavit. … Quandam pariter matronam conveniunt, quae erat prosapiae nobilis, sed mente deformis. … Quae instructa in concilio quaesta est, a beatissimo vi stuprum Desiderio esse sibi quondam inlatum’ (tr. Fear, Lives, 3–4). 318 See pp. 156–8 above. 319 Fontaine, ‘King Sisebut’s Vita’, 121. 320 Dumézil, ‘Une source méconnue’. 321 Sisebut, Vita, 4. 322 See p. 203 n. 308 above. 205

‘the vigour of assiduous questioning’.323 From Bishop Aventius’s perspective, moreover, the ‘writings forged of diverse obligations’ appear to have been perfectly valid. As Martianus’s replacement, Aventius probably conserved them in his episcopal archive, and he was able to produce them when called upon to do so.324 Most importantly for us, Eulalius’s agreement with Aventius had probably been sworn; if Eulalius failed to fulfil its terms, he would be liable to his bishop for perjury.325 Indeed, Eulalius appears to have made some version of these arguments to the council in 638. Although the iudicium does not record many (if any) of the deacon’s own words, the bishops’ narrative does note that a text had been ‘proffered in his defence’ (prolatam in sui defensione).326 This text proved to be an extract from The Opinions of Paul, since the council moved on to have Eulalius read aloud from the same work. The specific sententia which Eulalius cited cannot be known, for the extract which Eulalius reads, ‘Neither against the laws nor against good morals can we make agreements’, served as a counter-argument to the validity of Eulalius and Aventius’s pact.327 Nevertheless, we can infer the substance of Eulalius’s argument: ‘agreements must be kept’.328 On the other hand, as with King Herod’s oath in The Gospel of Matthew,329 the bishops at Toledo VI evidently considered that Eulalius could not keep his agreement with Aventius and remain innocent of perjury. From the bishops’ perspective, Aventius’s various agreements included promises to commit perjury and false witness,330 rendering these documents ‘contrary to the laws and to good morals’. The case of Eulalius and of the other clergy thus posed a fundamental problem which in patristic writings had remained largely

323 See p. 203 n. 308 above: ‘et vigore adsiduae discussionis eo usque est devolutus’. 324 Exemplar iudicii, F.5, ed. Dahn, Die Könige, 618: ‘quae placita per Aventium episcopum nobis data’. 325 Cf. the fears of the deacon Timothy, in late antique North Africa, that he was liable for perjury to Bishop Severus of Milevis: see Augustine, Epistulae, 62.2, and ch. 3, ‘Peccatization’, p. 140. 326 See p. 203 n. 308 above. 327 PS 1.1.4: ‘Neque contra leges neque contra bonos mores pacisci possumus.’ 328 See e.g. Richard Hyland, ‘Pacta Sunt Servanda: A Meditation’, The Virginia Journal of International Law 2 (1994): 405–34. 329 See pp. 26–7, 128–9 above. 330 See p. 204 n. 313 above: ‘ut … deberent testificare mendaciter’. 206

exegetical. What should (or could) a Christian do in the event of an imprudent or injudicious oath?331

Intriguingly, the answer provided by Toledo VI echoed the answer provided by Jerome. As we saw in our analysis of Latin patristic literature, Jerome had defined an oath as possessing ‘these three companions: truth, justice, and uprightness. If these things are lacking, there will not be an oath, but perjury.’332 In this way, Jerome had solved the exegetical problem of Herod’s oath, which challenged Christian commentators. Although King Herod had fulfilled his promise, beheading the John the Baptist,333 and although his oath might thus be said to possess the characteristic ‘truth’, the oath had been neither ‘just’ nor ‘upright’. The biblical malefactor could therefore be said to have incurred the guilt of perjury, despite the fact that he fulfilled his oath.334 In the case of Toledo VI, the council made use of a similar concept, although the particular formulation of it may not have had patristic precedents. In 546, almost half a century prior to King Reccared’s conversion, the council of Lérida had met and issued a number of canons on disciplinary matters, including sexual offences, doubtful ordinations, and heretical and rebaptisms.335 Meeting before the 587–9 conversion, the council was ‘typical of the pre-[conversion] record’, addressing matters of mostly local concern.336 In its seventh canon, as we have seen, the council of Lérida recommended a relatively mild penance for certain laypeople who swore their oaths unwisely: ‘A litigant who should obligate himself by means of an oath that he might in no way return to peace with someone, is segregated from the communion of the body and blood of the Lord for one year,

331 For treatments of this question by Origen, John Cassian, Ambrose, and Jerome, see ch. 3, ‘Peccatization’, pp. 98– 100, 128–9. 332 Jerome, In Hieremiam, 1.69.2, ed. Sigofred Reiter, CCSL 74 (Turnhout: Brepols, 1960), 40: ‘Simulque animaduertendum, quod iusiurandum hos habeat comites: ueritatem, iudicium atque iustitiam; si ista defuerint, nequaquam erit iuramentum, sed periurium’ (tr. Michael Graves, Jerome: Commentary on Jeremiah [Downers Grove: IVP Academic, 2011], 26). 333 Matt. 14:9–10. 334 Cf. Jerome, In Matthaeum, 2.1141–3, ed. D. Hurst and M. Adriaen, CCSL 77 (Turnhout: Brepols, 1969), 118: ‘Ego non excuso Herodem … qui ad hoc forte iurauit ut futurae occasioni machinas praepararet.’ 335 Lérida (a. 546), cc. 2, 4, 5–6, 15 (sexual offences), 3, 12 (ordinations), 9, 13–14 (baptisms and rebaptisms). 336 Zubin Mistry, Abortion in the Early Middle Ages, c.500–900 (Woodbridge: Boydell, 2015), 95. 207

on account of the perjury.’337 A reader might be tempted to interpret this canon with reference to the Germanic custom of feuding,338 yet the application of this text made by Toledo VI suggests that the canon also had some more prosaic interpretations. In 638, some ninety-two years after the council of Lérida met, the bishops at Toledo VI extended its provisions to the deacon Eulalius, who had made a written, sworn agreement which he could legitimately not keep. At least in the eyes of Toledo VI, an injudicious oath like Eulalius’s could be treated as perjury, and the deacon was ‘commanded’ (iubetur) ‘to return to charity through the satisfaction of penance’.339

Indeed, the trial of Martianus and Aventius illustrates how various cases of perjury and false witness might be disciplined in the Visigothic church. In the case of Eulalius, the deacon was ordered to abstain from communion for a year, performing fasts and giving alms as he did so.340 The other witnesses in the case were both more and less fortunate. Two of the women who had confirmed the presbyter Gregory’s testimony, stating that they had seen the diviner Simplicia go in to see Martianus, now asserted that they had testified no such thing. Rather, the original testimony had been written, and since neither of the women was literate, they claimed to have been ‘deceived’ – an explanation which the council apparently accepted.341 By contrast, some of the other clergy who were allied to Aventius seem to have been dealt with more harshly. Similar to the female witnesses, the clerici Trasoarius, Stefanus, Adeodatus, and Hospitalis now claimed that they knew nothing of what their original conditiones contained.342 Nevertheless, a second deacon, Timothy, who had arranged for the conditiones to be transmitted and for the written agreements with Aventius to be made, confessed his fault in the matter and triggered the imposition of a

337 Lérida (a. 546), c. 7: ‘Qui sacramento se obligaverit ut litigans quum quolibet ad pacem nullomodo redeat, pro periurio anno uno a conmunione corporis et sanguinis Domini segregatus … absolvat.’ 338 Cf. King, Law, 85–6, 222. 339 See p. 203 n. 308 above. 340 See p. 203 n. 308 above: ‘reatum suum eleemosynis, fletibus, et quantis potuerit jejuniis abluat’. 341 Exemplar iudicii, D.4, ed. Dahn, Die Könige, 617: ‘Porro Franca et Honorata confessae sunt … addentes ibi cum cum sacramenti interpositione nec priori testimonio ita ut scriptum legebatur, testificasse; et quia litteras ignorabant, rusticitate se deceptas dicebant.’ 342 Exemplar iudicii, F.5, ed. Dahn, Die Könige, 618: ‘[S]ed nihil se scire de his quae conditiones illae continebant, sub juramenti testifati sunt.’ 208

canonical sanction.343 Although Eulalius and Timothy’s offences were seemingly identical, the bishops at Toledo VI chose to invoke a different canon in the case of the deacon Timothy and Bishop Aventius himself. Rather than citing the seventh canon of Lérida, which condemned injudicious oath taking, Toledo VI invoked the eighteenth canon of the (a. 451), a council of the imperial church which had condemned oath taking in clerical and monastic conspiracies. As with the Léridan text, the canon was read aloud:

It is known that the crime of conjurations or conspiracies (amongst the Greeks called fratrias) is thoroughly prohibited even in the public laws; how much more is it suitable for [this crime] to be efficaciously rejected within the holy church of God? If indeed any clerics or monastics should be found who are swearing to one another, or establishing any fratrias or factions against their bishops or other clerics, let them fall in every way from their own rank.344

Thus the deacon Timothy and Bishop Aventius were judged worthy of deposition from office, while Eulalius was able to perform a comparatively mild penance.345

This difference in the classification and handling of perjuries points out a fundamental feature of the Visigothic perjury regime: different perjuries could be treated differently. Throughout this chapter, we have seen at least four groups of perjurors and false witnesses handled in different ways. In 638, the deacon Eulalius was penanced for an injudicious oath, considered by

343 Exemplar iudicii, F.5–G.1, ed. Dahn, Die Könige, 618: ‘[Q]uae placita … recepta, aperta confessione manifestaverunt, se conditiones accepisse per Timotheum clericum, modo autem diaconum. … Quod non solum ipsi confessi, sed et per confessionem Timothei diaconi hoc nos pervenisse manifestum est, unde apertissime datur intellegi, primum ejus consilio et ope tanta in illum fuisse crimina congesta, cujus etiam et testificatio existit.’ 344 Exemplar iudicii, G.1, ed. Dahn, Die Könige, 618–19: ‘[Q]ua de re, prolata est sententia ex Chalcedonensi concilio era octava decima, quae hujusmodi crimen fratrias vel conjurationem condemnat ita dicens: Conjurationum et conspirationum crimen (apud Graecos dicitur fratrias) et publicis etiam legibus certum est penitus inhiberi, hoc multo magis in sanctam Dei ecclesiam efficaciter convenit abdicari. Siqui vero clerici, seu monachi inventi fuerint conjurantes aut fratrias vel factiones aliquas componentes suis episcopis aut aliis clericis omnimodo cadant de proprio gradu.’ 345 A key element in Eulalius’s treatment may have been his cooperation with the council. He is the first witness whose testimony is recorded in the iudicium, and the text notes that Eulalius repented of the injuries he had caused: ‘Unde et receptis scripturis et a malo resipiscens conspirationis, testes qui se in tempore obtulerunt in nostram denuo reduxit praesentiam’ (Exemplar iudicii, D.1, ed. Dahn, Die Könige, 617). 209

Toledo VI as perjury. Likewise in 638, the deacon Timothy appears to have been deposed for conspiracy, though his offence was similar to Eulalius’s. In 673, the dux Paulus was sentenced by a military tribunal under the seventy-fifth canon of Toledo IV, and in 693 Bishop Sisibert was deposed and excommunicated, also under the seventy-fifth canon of Toledo IV.346 Such cases illustrate that no single rule applied, even as successive church councils confronted the problem of perjury and false witness repeatedly. As with the Visigothic documentary record, a certain amount of flexibility seems to have been the rule, and different norms of varying degrees of severity could be brought to bear. In the case of Bishop Sisibert, the perjury was manifestly political, offensive to the ruler in a way which Roman lawyers might have directly classified as treason.347 The language of the canons and decrees condemning Sisibert was correspondingly severe. When the sixteenth council of Toledo appointed Sisibert’s successor, the bishops compared his actions with those of Judas, one of the archetypical perjurors in the Visigothic documentary record: ‘The sufficiently venerable and approved history of The Acts of the Apostles narrates that, with Judas having been condemned for the crime of treachery … Matthias was elected by all in the place of the same apostle.’348 By contrast, the deacon Eulalius, whose injudicious oath might be judged less severely than Sisibert’s perfidia, was not deposed, while Bishop Aventius was ultimately disciplined with ‘moderation’ and ‘humanity’ – permitted to retain his episcopal rank.349 This diversity of judicial responses suggests that the bishops and other parties involved in Visigothic justice had a wide range of norms which were available to them, and either invoked or failed to invoke these norms according as they had need.

At the same time, perjuries and false testimony were clearly serious offences, and church councils approached them from a legal, canonical perspective. A moral rigourist might be dissatisfied with Eulalius’s mild penance, yet church councils were unambiguous in adjudicating these offences. Remarkably, of the four groups of disciplinary measures which I have

346 See pp. 188 n. 220, 198–9 above. 347 See e.g. Floyd Seyward Lear, Treason in Roman and Germanic Law: Collected Papers (Austin: The University of Texas Press, 1965), 248. 348 Toledo XVI (a. 693), Decretum: ‘Actuum apostolorum probata satis veneranda narrat historia quod Iudae crimini proditionis dampnatione nequaquam … Matthias ab omnibus est prae[e]lectus in loco eiusdem apostolus.’ 349 See p. 201 n. 304 above: ‘Porro de Aventio episcopo haec nostrae sententiae moderationis sententia humanitate Concilii promulgatur.’ 210

distinguished, all of them feature the specific application of canonical language and principles to the dispute in question.350 According to Rachel Stocking, such knowledge and application of specific norms could not be taken for granted. In 572, when Bishop Martin of Braga was issuing his local perjury legislation and composing his On the Reform of Rustics,351 Martin opened his provincial council with a reading of the available conciliar records, ‘so that their usefulness might be recalled more clearly to memory’ – apparently at the other bishops’ request.352 For Stocking, such procedures ‘constitute[d] careful lessons on conciliar authority’, and indicated that the bishops ‘needed instruction on how to reach their decisions’.353 Nevertheless, multiple councils did reach back into the canonical past, and justified their decisions by reference to canonical precedents. At Toledo VI, the records of both Seville III and Toledo IV were consulted,354 and the Iudicium inter Martianum et Aventium episcopos made use of both Visigothic and imperial canons. In the case of Toledo XVI, not only was the seventy-fifth canon of Toledo IV consulted once again, and read into the conciliar acta,355 but the language of other canons was seemingly also incorporated in the bishops’ decision. According to the council’s ninth canon, one of the two canons accompanying the Decretum iudicii, Sisibert was disciplined ‘on account of the transgression of his oath and of the machination of such a deed, according to the institution of the ancient canons, by which anyone who should be found to have done such things, and, while the prince is [still] living, to have turned toward another with the hope of rule for the future, shall be … rejected.’356 This phrasing turns out to derive from a canon of the fifth council of Toledo,

350 See pp. 188 n. 220 (Paulus), 199 n. 287 (Sisibert), 203 n. 308 (Eulalius), and 209 n. 344 (Timothy and Aventius). 351 See p. 183 n. 185 above. 352 Braga II (a. 572), Synodus Bracarensis seconda XII episcoporum regnante domino nostro Iesu Christo currente era DCX, anno secundo regis Mironis die kalendarum Iuniarum: ‘Martinus episcopus dixit: Arbitramur vestram beatitudinem recordari quia quum primum in ecclesia Bracarensi episcoporum concilium congregatum est … aliqua etiam quae regularem sanctorum [canonum] continent discretionem firmavimus, quorum utilitas ut possit evidentius in memoriam / revocari, ipsa si vobis placet epistola in vestra praesentia relegatur. Omnes episcopi dixerunt: Oportet omnibus modis ut in omnium auribus qui hic adstant recitetur.’ 353 Stocking, Bishops, 44. 354 Exemplar iudicii, C.1, G.1; see also Toledo VI (a. 638), c. 18. 355 Toledo XVI (a. 693), c. 10. 356 Toledo XVI (a. 693), c. 9: ‘[I]pse vero Sisibertus pro sui iuramenti transgressione facinorisque tanti machinatione secundum antiquorum canonum institutionem qua praecipitur ut quisquis inventus fuerit talia fecisse et vivente principe in alium adtendisse pro futura regni spe, a conventu catholicorum excommunicationis sententia repellatur.’ 211

seemingly directed at rebellious aristocrats like Paulus and Suniefred, yet here reappropriated in the context of an ecclesiastical hierarch.357

Furthermore, the iudicium of Toledo VI preserves an impression of the experiences of the condemned. In 638, Bishop Aventius, and not the deacon Eulalius, was the principal defendant in the case; nevertheless, with the deacon’s injudicious oath having been exposed, Eulalius was summarily ‘commanded to return to charity through the satisfaction of penance’.358 An important element in this condemnation, and in the condemnation of the deacon Timothy, may be that both of these clerics confessed, as the document took care to note.359 The judgment of perjurors and false witnesses could nonetheless be summary, without the benefit of a second trial and separate accusation, and this way of proceeding also finds support in Visigothic secular law. According to the perjury Antiqua in The Book of the Judges, ‘If anyone should kill his soul by means of perjury … then as soon as the judge should certainly know this, let [the perjuror] be adjudged and receive one hundred lashes’ (my emphasis).360 Like perjured debtors and other people who defaulted on their obligations under the Roman empire, perjured witnesses in the Visigothic church and kingdom were most likely exposed to summary judgment and condemnation, whether before ecclesiastical or secular courts.361 At the same time, the Iudicium inter Martianum et Aventium episcopos also features a method of judicial correction which we have not seen. In a remarkable twist, the perjuror himself is presented as reading aloud from one of the texts which is cited to condemn him, in this case, a sententia of The Opinions of Paul: ‘[T]he deacon himself recited that which had been proffered in his own defence, saying: “Neither against the laws nor against good morals can we make agreements.”’362 Although the iudicium is silent as to the purpose of this procedure, the recitation looks very much like an act of ritual humiliation. Notably, two of Bishop

357 Toledo V (a. 636), c. 4. 358 See p. 203 n. 308 above. 359 Exemplar iudicii, C.3, G.1, ed. Dahn, Die Könige, 616, 618: ‘palam fateretur’; ‘et per confessionem Timothei diaconi’. 360 LV 2.4.14 (Antiqua): ‘Si quis animam suam periurio necaverit … dum hoc certius iudex agnoverit, addicatur et centum flagella suscipiat.’ 361 See ch. 2, ‘Criminalization’, pp. 80, 95. 362 See p. 203 n. 308 above: ‘[R]esolvit sententia legum, quam prolatam in sui defensione diaconus ipse relegit dicens: Neque contra leges, neque contra bonos mores pacisci possumus.’ 212

Aventius’s political opponents were present for his sentencing, suggesting that the council wished for Aventius to be humbled in their presence, and the record noted that the bishop had perpetrated calumnies against these two observers in the past.363 As the council of Narbonne legislated in 589, likewise with reference to a clerical conspirator: ‘[L]et him learn humbling (humiliationem).’364

To be sure, this ‘humbling’ and the fear that private oath takers were supposed to feel365 may have ranked amongst the most effective elements in the Visigothic handling of perjury. In a world where the king’s power was unsteady, and where kings had to rely on local bishops and neighbouring magistrates to enforce their policies in a certain territory,366 the power of social pressure and ostracism needed to be significant. At the same time, such methods which had once exhausted the classical Roman approach to perjuries367 were here taken over into the realm of law, prescribed by canonical statute and backed by royal authority.368 To be sure, Visigothic church councils (like other early medieval church councils) met only on occasion, and there was no guarantee that a given case of perjury or false witness would come to light. If Toledo VI had never met, Aventius’s conspiracy might never have been exposed, and the deacon Eulalius might never have been disciplined for his injudicious oath. Nevertheless, church councils periodically did meet, and both they and secular tribunals regarded the Visigothic church’s various perjury canons as important and authoritative – as evinced by the invocation of the canons of Lérida and Toledo IV against the deacon Eulalius, the dux Paulus, and Bishop Sisibert. Intriguingly, both of the cases which I have studied in detail – the disciplining of Eulalius, in 638, and the Jewish conversion oath, of 681 – together with the cases of Paulus and Sisibert, on which I have touched more briefly, all fell within the two periods of heightened conciliar activity which I identified at the outset: the

363 Exemplar iudicii, G.2, ed. Dahn, Die Könige, 618: ‘Sed et adstiterunt etiam Gonderes et Nepotianus, quos falsis criminibus apud bonae memoriae dominum Sisenandum regem accusaverat.’ 364 Narbonne (a. 589), c. 5 (citing ‘the council of Nicaea’): ‘Secundum concilium Nicaeni sanctissimi concinnabula vel coniurationes non fiant clericorum … quod si quis … ausus fuerit facere, districtione saevissima corrigatur, ut sub poenitentiae nomina vita recedente, id est anno uno in monasterio sciat abicere superbiam under inflatur, quod est diabolus et addiscat humiliationem.’ 365 See pp. 184–5 above. 366 See p. 193 n. 253. 367 See ch. 1, ‘Introduction’, pp. 23–33 passim. 368 Both Toledo XII (a. 681) and Toledo XVI (a. 693) were the subject of leges confirming their validity. 213

mid-630s, and the 670s–90s.369 Perhaps accused perjurors and false witnesses were more likely to face specifically legal discipline at certain moments in the kingdom’s history, when the offending parties were likelier to come within the purview of kings and councils.370 Over the course of multiple decades, the Visigothic church and kingdom developed a modest body of perjury law – irregularly and unevenly – but perjury law nonetheless.

369 See p. 162 above. 370 Paradoxically, such moments may have occurred at moments of political instability, when kings sought the additional support of church councils: Collins, Early Medieval Spain, 115, 118, 127. 214

Chapter 5 Epilogue

Throughout this dissertation, I have frequently attempted to prioritize sources which are as close as possible to the lived realities of late antique and early medieval people. In the area of Roman law, I emphasized The Opinions of Paul, a practical, provincial legal manual which was probably extremely popular with fourth- and fifth-century imperial magistrates and lawyers.1 Similarly, The Acts of Marcellus were most likely produced from actual courtroom records,2 and a Ravenna papyrus provides insight into the conceptions of perjury held in the late imperial exarchate.3 In the field of patristic literature, the sources which I presented were necessarily more abstract – treating perjury and false witness as exegetical problems primarily – yet the lived reality of Christian intellectuals in the late empire can shine through in surprising ways. As I argued in the case of Jerome, the biblical scholar’s translation of the Greek Chronicle of Eusebius of Caesarea may preserve what is the oldest surviving example of a canonical-type penalty for perjury in the Latin church,4 while Augustine’s ethical treatise Against Lying and his definition of perjury in the Pinianus affair were inspired by concrete historical examples.5 Meanwhile, as we have just seen with the Visigothic church and kingdom, a pronounced use of the oath amongst private documents and legal records suggests that perjury had an ongoing importance to sixth- and seventh-century Iberians, while the survival of several conciliar decrees sheds light on the experiences of even ordinary perjurors and false witnesses, including lesser clergy, laypeople, and women.6 These sources illustrate not only what law was considered to be (an important question in its own right), but also how law might function. Indeed, I suspect that The Opinions of Paul

1 See e.g. James B. Rives, ‘Magic in Roman Law: The Reconstruction of a Crime’, Classical Antiquity 22/2 (2003): 328–34. 2 Herbert Musurillo, ‘Introduction’, in Musurillo, ed., The Acts of the Christian Martyrs (Oxford: The Clarendon Press, 1972), xxxvii–xxxix. 3 Jan-Olof Tjäder, ed., Die nichtliterarischen lateinischen Papyri Italiens aus der Zeit 445–700, i (Lund: C. W. K. Gleerup, 1955), no 8. For discussion of all these examples, see ch. 2, ‘Criminalization’, pp. 56–60, 75–6, 84–5. 4 Jerome, Eusebii Caesariensi chronicon continuatio, Olymp. 282. 5 Augustine, Contra mendacium ad Consentium, and Epistulae, 125–6. See ch. 3, ‘Peccatization’, pp. 141–8 (Against Lying), 148–53 (definition of perjury). 6 See pp. ch. 4, ‘Early Medieval Case Study’, § 10, ‘The Evidence of the Canons: Perjury, False Witness, and Conspiracy at the Sixth Council of Toledo (a. 638)’, pp. 195–214. 215

may be a more reliable guide to judicial practice than The Justinianic Code, and my analysis of patristic literature assumed the penalization of perjuries in practice.7

Nevertheless, the sources which I have presented raise more questions than they provide answers. If the sententia on perjury in The Opinions of Paul is more reflective of actual practice than the Severan statute was,8 then why has the manuscript transmission of this sententia proved to be so tenuous?9 Were the perjured Felician clergy attested by Jerome formally deposed from their offices in 357–65, and what norms did the early Iberian church councils apply when they tried Bishops Herenas and Sagittius for perjury in c.400 and c.419, respectively?10 Furthermore, although we know what norms the deacons Eulalius and Timothy, Bishop Aventius, and Bishop Sisibert were sentenced under, were these clerical condemnations ever carried out, and did the penanced clergy ever perform their penances?11 Likewise, when certain Toledan Jews probably swore their conversion oath in the late winter or early spring of 681, did they or their witnesses feel fear, as the text of the oath implied that they should?12 Although the difficulties are different in each case, none of these sources can offer us even a remotely complete picture of the discipline of perjury and false witness in Late Antiquity and the early Middle Ages. At most, the sources are suggestive: ‘He who should commit perjury on the salvation of the prince’, conceded The Opinions of Paul, ‘cannot be condemned under this law … nevertheless, he is judged with rods [and] banished’ (indicative mood, present tense).13 Similarly, Jerome describes the perjured Felician

7 Cf. Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), 3: ‘I have chosen to focus on law as a process, and in particular on the ability of individuals to work any given (legal) system, and to create “new” law, albeit not in a formal sense, through concrete legal practice on the ground.’ 8 See pp. 75–6 above. 9 In a unique, fragmentary manuscript: Leiden, Universiteitsbibliotheek, BPL 2589. 10 See pp. 144 n. 280, 146 n. 290. 11 Notably, we know nothing of Bishop Martianus’s activities during the period of his own deposition: Rachel L. Stocking, ‘Martianus, Aventius, and Isidore: Provincial Councils in Seventh-Century Spain’, Early Medieval Europe 6/2 (1997): 182. 12 LV 12.3.15 (Erwig): ‘ad terrorem ceterorum’. 13 Martin David and H. L. W. Nelson, ‘Apographum, Text und philologischer Kommentar’, in G. G. Archi et al., eds, Pauli Sententiarum Fragmentum Leidense, Studia Gaiana 4 (Leiden: Brill, 1956), 7: ‘Hac lege damnari non potest, qui per salutem principis periurauerit … fustibus tamen animaduersus aut relegatur aut curia ad tempus ǁ submouetur.’ 216

clergy in evocative terms, as ‘ejected’,14 and Visigothic legal formulas do not contain many hints as to the realism of the human enforcement mechanisms for which these documents sometimes hoped.15 In all of these cases, we are still learning much more about the values and expectations of the people who composed our sources, than we are about the experiences of perjury and false witness themselves.

Indeed, at a fundamental level, this has remained a dissertation about the evolution of perceptions, as opposed to the evolution of practices. Perhaps ironically, very little may have changed at the level of practice with respect to the actual disciplining of perjurors and false witnesses in Late Antiquity and the early Middle Ages. For classical Roman writers like Cicero, Tacitus, and the drafter of the Severan statute, perjury was primarily a ‘disgrace’,16 to be followed by infamia (and, perhaps, the vengeance of a god).17 For post-classical writers, perjuries were to be penalized with corporal punishment and banishment,18 and ecclesiastical hierarchs from Late Antiquity to the early Middle Ages sought to suspend the perjured from communion or to depose them from their offices.19 What all of these approaches shared in common was some form of social exclusion, or the isolation of the offender from the rest of his or her society. The exact purpose of such an exclusion could vary: according to W. M. Gustafson, who has studied penal tattooing in Late Antiquity, the purpose of such procedures was ‘disgrace [and] humiliation’, ‘an indelible mark of infamy which add[ed] insult to injury and ma[de] the punishment permanent’.20 According to Sarah Bond, who has studied exclusions in a municipal context, the penalty of infamia was a self-defensive measure on the part of the community, entailing the ironic consequence of ‘contribut[ing] to the decline of curial councils’ as more and more town councillors were excluded

14 ‘[E]iecti’ (Jerome, Eusebii Caesariensis chronicon, Olymp. 282, ed. Benoît Jeanjean and Bertrand Lançon, Saint Jérôme, Chronique: Continuation de la Chronique d’Eusèbe, années 326–78 [Rennes: Presses Universitaires de Rennes, 2004], 88). 15 See e.g. p. 192 nn. 245–8. 16 Cicero, De legibus, 2.22, tr. Clinton Walker Keyes, Cicero: On the Republic, On the Laws, LCL 213 (Cambridge, MA: Harvard University Press, 1928), 396: ‘Periurii poena … dedecus.’ 17 A. H. J. Greenidge, Infamia: Its Place in Roman Public and Private Law (repr., Aalen: Scientia, 1977), 72. 18 See pp. 76ff. 19 See ch. 3, ‘Peccatization’, passim. 20 W. Mark Gustafson, ‘Inscripta in fronte: Penal Tattooing in Late Antiquity’, Classical Antiquity 16/1 (1997): 89. On the visibility of military oath takers because of their tattoos, cf. pp. 54–5. 217

from their positions.21 In ecclesiastical cases, meanwhile, the purpose of an exclusion seems to have been more educational and reformative. When the deacon Eulalius was suspended from communion and ordered to perform a penance for one year, he was evidently directed to read aloud from the texts which he himself had transgressed, impressing the council’s lesson upon him.22 Yet whatever the purposes of these exclusions, and however heavily or lightly a late antique or early medieval society was governed, some form of social exclusion probably perdured as the most consistent and effective means of responding to perjuries and false testimony in practice.23

Despite these continuities, perceptions of perjury did change, and much of this dissertation has tried to document those changes. For the authors of The Opinions of Paul, The Acts of Marcellus, and the Ravenna papyri, numerous perjuries were justiciable, criminal offences – something which they had not necessarily been for Cicero, Tacitus, and the drafter of the Severan statute. For church fathers like Jerome and Augustine, both perjuries and false testimony were consistently classified as grave sins and canonical offences, while for the formulators of the Visigothic private agreements, guilty perjurors might be precipitated into hell. This three-part evolution, from criminalization to peccatization and infernalization, occurred in a certain chronological order, interacting with other features of the legal and religious landscape as it did so. Contrary to the speculations of some historians who thought that the criminalization of perjury originated only with the medieval church,24 evidence for the punishment of perjuries in Roman law slightly pre-dates most of the moral and theological condemnation of perjury to be found in Latin patristic literature. The Acts of Marcellus, which attest the trial and execution of a military perjuror, were probably compiled shortly after the centurion’s death, in 298.25 The Opinions of

21 Sarah Bond, ‘Altering Infamy: Status, Violence, and Civic Exclusion in Late Antiquity’, Classical Antiquity 33/1 (2014): 4. 22 Exemplar iudicii inter Martianum et Aventium episcopos, C.4, ed. Felix Dahn, Die Könige der Germanen: Das Wesen des ältesten Königthums der germanischen Stämme und seine Geschichte bis zur Auslösung des karolingischen Reiches, vi: Die Verfassung der Westgothen, Das Reich der Sueven in Spanien (Leipzig: Breitkopf and Härtel, 1885), 616: ‘quam prolatam in sui defensione diaconus ipse relegit dicens’. 23 Daniel A. Washburn, Banishment in the Later Roman Empire, 284–476 CE (London and New York: Routledge, 2013), 1: ‘As the empire regrouped and split apart, banishment became a fixture in ecclesiastical and secular politics. … [I]t represented an outstanding phenomenon in the days of Diocletian, Constantine, Theodosius, Augustine, and Leo the Great. … It is everywhere and nowhere in the sources.’ 24 See e.g. ch. 1, ‘Introduction’, pp. 7–8 n. 35. 25 Musurillo, ‘Introduction’, xxxvii–xxxix. 218

Paul, which treated perjuries on the emperor as criminal, were most likely composed at nearly the same time, before being incorporated in the law of the universal empire by 328.26 The dramatic increase in Latin patristic interest in perjuries and false testimony followed these developments and probably reflected them, taking place from the last quarter of the fourth century onward.27 Throughout this development, conceptions of perjury shifted in considerable and not always predictable ways. By the time that Visigothic monarchs began issuing their own legislation, ‘perjury’ in Gaul and Spain could be synonymous with testimonial perjury specifically, i.e. with false witness, and was assimilated to the law of forgery.28 More surprisingly, perjuries were rhetorical tools and an index to heresy in the hands of Jerome and Rufinus,29 while for seventh- century Iberians, perjury was synonymous with perfidia, falling with particular force on Jews and Jewish Christian converts.30

While I have attempted to document these changes, I have said comparatively little about the underlying explanations for them. Why were perjuries criminalized and peccatized when and as they were, during this particular phase of Latin Mediterranean history? Although a fuller explanation must await a more comprehensive study, one part of the answer may have to do with the changing profile of late antique and early medieval aristocracies. As Jill Harries has argued,31 and as I emphasized in my own analysis of late Roman law,32 the ‘culture of criticism’ which affected various late antique elites also targeted municipal aristocrats, the members of town councils. The Opinions of Paul’s sententia on perjury notably presumed a curial-rank perjuror, providing an alternative penalty of suspension from the town council,33 and the government of the

26 Detlef Liebs, Römische Jurisprudenz in Africa: Mit Studien zu den pseudopaulinischen Sentenzen (Berlin: Akademie Verlag, 1993), 33–8 (composition); CTh 1.4.2 (a. 327, 328) (incorporation). 27 See pp. 97ff. 28 See e.g. LV 2.4.14 (Antiqua): ‘Si quis animam suam periurio necaverit, seu quisque presumtuose periurasse detegitur … addicatur et centum flagella suscipiat. … Et si potentior fuerit, secundum superiorem legem, que De falsariis continetur, insistente iudice quartam partem facultatum suarum amittat.’ 29 See pp. 116–23. 30 See pp. 171–94. 31 Jill Harries, Law and Empire in Late Antiquity (Cambride: Cambridge University Press, 1999), 70, 79, 83, 127, 214. 32 See pp. 82–3. 33 David and Nelson, ‘Apographum’, 7: ‘aut curia ad tempus ǁ submouetur’. 219

emperor Constantine legislatively stripped town councillors of their traditional immunities in criminal accusations of falsum.34 Furthermore, an underappreciated aspect of our patristic authors’ biographies is that both Jerome and Augustine probably belonged to the curial class. In Augustine’s case, the identification is assured: the bishop of Hippo’s biographer, Possidius of Calama, states that Augustine’s father had been a curialis in Thagaste,35 implying that the father would have been at heightened risk for perjury and false witness proceedings (and that Augustine himself would have had to find some non-perjurious means of escaping his inherited obligations to Thagaste’s town council).36 In Jerome’s case, the identification is less assured, yet the biblical scholar also seems to have belonged to the curial aristocracy. Likewise hailing from a provincial background, Jerome’s family were nonetheless wealthy enough to own multiple slaves and to afford an education for the young scholar in Rome.37 As late as 398, Jerome dispatched his younger brother to sell off the family properties and to return with the proceeds to Bethlehem.38 Although there is no conclusive evidence that Jerome’s father had been a curialis, it seems likely that he had been, or at least that he had moved in curial circles. From their childhoods, Jerome and Augustine were thus accustomed to a form of social existence in which oath taking may have played a prominent role,39 and where perjury accusations were felt especially acutely.

The implications of this class-based dimension to the late imperial perjury regime may be profound. Whereas a great senatorial aristocrat like Ambrose of Milan seemed to deprecate the importance of perjuries, updating Cicero’s treatment in his own treatise On Duties,40 local aristocrats like Augustine and Jerome assessed these perjuries more severely. Yet of the two types of aristocracy, the Roman senatorial aristocracy disappeared; with the end of western imperial rule, geographically disparate fortunes like those which had sustained the families of Ambrose, the

34 CTh 9.19.1 = CJ 9.22.21 (a. 316). 35 Possidius, Vita Augustini, 1. 36 This second issue, frequently overlooked in Augustinian biographies, is highlighted in James J. O’Donnell, Augustine: A New Biography (New York: HarperCollins, 2006), 10, 342 n. 9. 37 For slaves, see Jerome, Epistulae, 3.5; on his Roman education, see pp. 115–16. 38 Jerome, Epistulae, 66.14. For discussion of the monk’s family background, see J. N. D. Kelly, Jerome: His Life, Writings, and Controversies (London: Duckworth, 1974), 1–9. 39 See pp. 80–3. 40 Ambrose of Milan, De officiis, 1.50, 3.12. Cf. Cicero, De officiis, 1.11–13, 3.26–32. 220

prefect Symmachus, and Valerius Pinianus became impossible.41 Nevertheless, curial aristocracies tended to survive, to greater or lesser extents in different regions. In Ravenna, as we have implied, a functioning town council persisted into the seventh century, where the private documents which became the Ravenna papyri were entered into the municipal archive.42 While Ravenna was certainly exceptional, the late imperial and Ostrogothic capital was not unique. Municipal institutions may have survived equally or nearly as long at Córdoba, where parts of The Visigothic Formulary were used;43 and St Emilian of the Cloak reportedly upbraided the ‘senators’ of Cantabria for their perjuries in the sixth century.44 Most famously, the Merovingian bishop and aristocrat Gregory of Tours, whose perjury anecdotes are routinely cited by modern-day medievalists,45 belonged to the curial class of Clermont and Lyons in south-central Gaul. Both Gregory’s paternal grandfather and at least one of his great grandfathers had been curial in rank;46 while his sister married the man who may have been comes of Tours, and his niece married a comes of Auvergne and dux in Provence.47 This persistence of curial aristocracies and, perhaps, their values, may explain much of the difference in perspective to be found in classical and medieval sources on perjury and false witness. From a classical, Rome-centred point of view,

41 For overview of this process, see Chris Wickham, Framing the Early Middle Ages: Europe and the Mediterranean, 400–800 (Oxford: Oxford University Press, 2005), 155–232 passim. 42 See e.g. Nicholas Everett, ‘Lay Documents and Archives in Early Medieval Spain and Italy, c.400–700’, in Warren C. Brown et al., eds, Documentary Culture and the Laity in the Early Middle Ages (Cambridge: Cambridge University Press, 2013), 71–2, and Mark Wayne Steinhoff, ‘Origins and Development of the Notariate at Ravenna (Sixth Through Thirteenth Centuries)’, PhD dissertation, New York University, 1976, p. 48. 43 L. A. García Moreno, ‘En las raíces de Andalucía (ss. V–X): Los destinos de una aristocracia urbana’, Anuario de historia del derecho español 65 (1995): 873–6, and idem, ‘Una memoria indomable: Aristocracia municipal romana y nobleza goda’, Quaderni catanesi di cultura classica e medieval 2 (2003): 76–81. 44 Braulio of Saragossa, Vita sancti Emiliani confessoris, 26, ed. J.-P. Migne, PL 80 (Paris, 1863), col. 717B: ‘Unde nuntio misso, jubet ad diem festum Paschae senatum ejus praesto esse.’ For the senators’ perjuries, see p. 182 n. 181; for other senators, cf. Braulio, Vita sancti Emiliani, 11, 15, 17, 22. 45 See p. 6 n. 28. 46 Karl Friedrich Stroheker, Der senatorische Adel im spätantiken Gallien (Tübingen: Alma Mater, 1948), nos 175 and 161, respectively. 47 Stroheker, Der senatorische Adel, nos 209, 260. For discussion of these relationships, see Martin Heinzelmann, Gregory of Tours and His Family’, in idem, Gregory of Tours: History and Society in the Sixth Century, tr. Christopher Carroll (Cambridge: Cambridge University Press, 2001), 1–35. 221

perjuries were of peripheral or marginal interest. With the break-up of the western empire, the old peripheries became the new centre.48

Similar to the survival of curial aristocracies, a second social factor probably played a decisive role in the high profile of perjuries in the early medieval world. As we saw in our analysis of late Roman law, the majority of Roman soldiers were probably bound by oath, which they swore to the emperor around the time of their enlistment.49 Moreover, the rhetoric of fas and nefas, which characterized the treatment of perjuries in classical perspective, was largely absent from this context.50 As numerous historians have observed, aristocracies in the early Middle Ages were also increasingly militarized,51 and Stefan Esders has suggested that they inherited the Roman military oath directly.52 According to Esders, the sacramentum militiae was exacted not only from new recruits and conscripts hailing from within the empire, but also from ‘barbarian’ and federated allies hailing from without. In 376, for example, the Greek historian Zosimus reported that the Visigothic armies promised on oath ‘to carry out the duties of faithful and loyal allies’, an oath which Esders interprets as comparable with the sacramentum militiae.53 Moreover, this oath became the subject of ongoing debate within the Visigothic military hierarchy, at least if the Greek historiography on the matter can be believed.54 Once the imperial administration had collapsed, such oaths were transferred from Roman emperors to Visigothic and other kings, who proved eager

48 Consider an allusion to the detection and punishment of perjury through the use of ordeals, already being practised in Gaul under the emperor Constantine: ‘Apollo noster, cuius feruentibus aquis periuria puniantur’ (Incerti panegyricus Constantino Augusto 6[7].21.7, ed. C. E. V. Nixon and Barbara Saylor Rodgers, In Praise of Later Roman Emperors: The Panegyrici Latini [Berkeley and Los Angeles: The University of California Press, 1994], 251). 49 See pp. 50ff. 50 Cf. Acta Marcelli, 5 (recensio M), ed. Musurillo, Acts, 254: ‘Agricolanus dixit: … Marcellum, qui centurio ordinarius militabat, qui abiecto publice sacramento pollui se dixit … gladio animaduerti placet.’ 51 See e.g. Wickham, Framing, 175–9, 200–3, 239–40, 330–1. 52 Stefan Esders, ‘Les origines militaires du serment dans les royaumes barbares (Ve–VIIe siècles)’, in Marie-France Auzépy and Guillaume Saint-Guillain, eds, Oralité et lien social au moyen âge (Occident, Byzance, Islam): Parole donée, foi jurée, serment, Monographies 29 (Paris: Collège de France, 2008), 19–26. 53 Zosimus, Historia nova, 4.20.5–7, ed. Ludwig Mendelssohn, Zosimi comitis et exadvocati fisci historia nova (repr., Hildesheim: Georg Olms, 1963), 175: ὑπισχνεῖσθαί τε πληρώσειν ἔργον αὐτῷ συμμάχων πιστῶν καὶ βεβαίων … ὅρκων (tr. Ronald T. Ridley, Zosimus, New History: A Translation with Commentary, Byzantina Australiensia 2 [Canberra: The Australian Association for Byzantine Studies, 1982], 79). For discussion see Esders, ‘Les origines’, 21. 54 Zosimus, Historia nova, 4.56. 222

to impose these oaths on all or much of their free populations. In Visigothic Iberia, the long-term consequences were particularly conspicuous; as we have seen, Visigothic canon law attempted to regulate the royal fidelity oath,55 and the late seventh-century monarchy appears to have maintained a group of officials, the discussores iuramentorum, specifically charged with administering the oath.56 Remarkably, Roman military language even seems to have influenced Visigothic approaches to dealing with oaths which were no longer perceived as useful. On successive occasions, Visigothic church councils invalidated some part of an oath (religione … absoluta),57 or even absolved the swearers from their oaths entirely (soluta manus populi ab omni vinculo iuramenti; ab illis vinculis iuramenti … absolvendum).58 Such rituals of dissolution may have been inspired by the standard Roman military procedure for an honourable discharge, when both soldiers and administrators were released from their oath of service: soluti or absoluti sacramento.59

Besides exploring the localization and militarization of western aristocracies, a more comprehensive study will also more thoroughly implicate the nature of perjury itself. As many of our sources indicate, the oath and perjury could be elastic concepts, which frequently exceeded the boundaries set by modern definitions. According to Jerome, injudicious oaths constituted perjury,60 and at least some of the Visigothic church councils seem to have agreed with him.61 Numerous ancient and medieval oath takers likewise attempted to place outside parties on oath,

55 Toledo IV (a. 633), c. 75; see pp. 163, 188, 196, 198–9. 56 LV 2.1.7 (Egica). 57 Toledo VIII (a. 653), c. 2. 58 Toledo XII (a. 681), c. 1, and Toledo XV (a. 688), respectively. 59 CTh 7.22.5 (a. 333), 8.1.8 (a. 363), 8.4.22 (a. 412), 11.7.21 (a. 412), 12.1.42.2 (a. 354, 346), 12.1.147 (a. 416). Importantly, this militarization of the aristocracy may be seen as responsible for the creation of new ethnic and national categories in the west. In the case of the Visigoths, early membership in the tribe was synonymous with membership in the army: Herwig Wolfram, History of the Goths, tr. Thomas J. Dunlap (Berkeley and Los Angeles: The University of California Press, 1988), 97–100, 164–7, 168–70. On this process of ‘ethnogenesis’ in general, see Walter Pohl, ‘Conceptions of Ethnicity in Early Medieval Studies’, in Lester K. Little and Barbara H. Rosenwein, Debating the Middle Ages: Issues and Readings (Malden, MA: Blackwell, 1998), 13–24, and idem, ‘Aux origines d’une Europe ethnique: Transformations d’identités entre Antiquité et Moyen Âge’, Annales: Histoire, sciences sociales 60 (2005): 183–208. 60 See pp. 128–9. 61 Lérida (a. 546), c. 7; Toledo VI (a. 638), Exemplar iudicii inter Martianum et Aventium episcopos. 223

seeming to extend the guilt of perjury from themselves to falsely adjured individuals.62 Such difficulties highlight the limitations of traditional definitions, and invite our renewed consideration of what oaths and perjuries really were. In one remarkable example, a Lombard charter from the late eighth century employs the vocabulary for ‘perjury’ even though no oath taking procedure is recorded. According to the text, a nuptial agreement quoting from a constitution of the Lombard king Liutprand (r. 712–44), the man Alderisi bestowed a marriage gift on his wife, Cuntrada, and had the agreement recorded in writing, ‘so that in the future she may not suffer damage in this case by means of perjury’.63 Nevertheless, no oath formula invoking God, the king, or other supernatural authorities is to be found anywhere in the document, leading us to suspect that the traditional insistence on such formulas may be unhelpful.64 To be sure, a conventionally recognizable oath formula could have accompanied Alderisi and Cuntrada’s original agreement and never been written down. Alternatively, the meanings of the oath and perjury were unstable, and any number of solemn promises (including nuptial agreements) could be regarded as sworn, fraught with the risk of perjury. On this latter interpretation, perjury functioned as a generalizable and rhetorically heightened charge, employed at moments of perceived need.65 For a variety of reasons, certain types of agreement, notably loans,66 clerical promises to bishops and other clerical patrons,67 and (in Lombard Italy) nuptial agreements, all came to be stereotyped as sworn. Other types of agreement may not have.

62 See pp. 178–9. 63 ChLA 20, ed. Albert Bruckner and Robert Marichal (Olten: Urs Graf, 1982), no 701, p. 4, ll. 14–15: ‘ut in foturo pro hanc causa periurio non percurrat’. See Edictus Langobardorum, Leges Liutrpandi regis, 7.1 (a. 717), and cf. Kathleen Fischer Drew, tr., The Lombard Laws (Philadelphia: The University of Pennsylvania Press, 1973), 147. 64 Memorably, Jerome even interpreted the word ‘amen’ as an oath: see e.g. Jerome, Ad Galatas, 3.6, and In Ezechielem, 5.16. 65 Take Jerome’s suggestion that Rufinus’s failings constituted a kind of perjury of his baptismal and monastic vows: ‘Tu a me somnii exigis sponsionem, ego te uerius strictiusque conueniam. Fecistine omnia quae in baptismate promisisti? quicquid monachi uocabulum flagitat, nostrum uterque conpleuit?’ (Jerome, Apologia adversus libros Rufini, 1.31, ed. P. Lardet, CCSL 79 [Turnhout: Brepols, 1982], 31). 66 See p. 72 n. 202. 67 See pp. 112 n. 97, 140 n. 263, 203 n. 308. 224

Looking toward the future, this study can be expanded in two further ways. Although I have cited Greek patristic opinions and legal texts on occasion,68 the focus of this dissertation has remained on the Latin Mediterranean, where The Opinions of Paul, the writings of Jerome and Augustine, and the Visigothic church’s canons and decrees were all produced or (in the case of Jerome) primarily circulated. Nevertheless, as John T. Fitzgerald has pointed out in his study of perjury in a Greek context, references to perjury and false witness can be found in the writings of the fourth-century Greek fathers, especially , in numbers similar to those which can be found in the writings of Jerome and Augustine.69 From an imperial perspective, while it is true that the eastern and western halves of the Roman empire did grow gradually more estranged from one another,70 scholarly divisions between ‘east’ and ‘west’ remain somewhat artificial. Particularly for the sixth and seventh centuries, as historians are increasingly aware, communication and contact between Greek and Latin populations continued, most notably in many of the regions which are relevant to this dissertation.71 In Visigothic Iberia, a Byzantine enclave persisted in the southern part of the peninsula for much of the sixth century,72 while men of Greek origin rose to become bishops of Mérida,73 and provincial church councils noted the presence of Greeks and Syrians in their communities.74 Indeed, the centralizing and sacralizing aspects of the Visigothic monarchy have long been compared with possible Byzantine models, and Isidore’s older brother spent several years in Constantinople.75 In order to make the preceding analyses of

68 See e.g. pp. 126–8, 179 n. 160. 69 John T. Fitzgerald, ‘The Problem of Perjury in Greek Context: Prolegomena to an Exegesis of Matthew 5:33; 1 Timothy 1:10; and Didache 2.3’, in L. Michael White and O. Larry Yarbrough, eds, The Social World of the First Christians: Essays in Honor of Wayne A. Meeks (Minneapolis: Fortress Press, 1995), 159 n. 14. Cf. pp. 97–8 nn. 8– 9. 70 See e.g. Evangelos Chrysos, ‘The Empire in East and West’, in Leslie Webster and Michelle Brown, eds, The Transformation of the Roman World, AD 400–900 (Berkeley and Los Angeles: The University of California Press, 1997), 18. 71 Walter Goffart, ‘Byzantine Policy in the West under Tiberius II and Maurice: The Pretenders and Gundovald (579–85)’, Traditio 13 (1957): 73–118. 72 See e.g. Jamie Wood, ‘Defending Byzantine Spain: Frontiers and Diplomacy’, Early Medieval Europe 18/3 (2010): 292–319. 73 Vitas patrum Emeritensium, 4.1.1, 4.3.2ff. 74 Narbonne (a. 589), c. 14. 75 J. N. Hillgarth, ‘Coins and Chronicles: Propaganda in Sixth-Century Spain and the Byzantine Background’, Historia: Zeitschrift für alte Geschichte 15/4 (1966): 483–508. On Leander’s time in Constantinople, see Gregory the Great, Moralia in Iob, Epistola ad Leandrum, 1. 225

Roman law, Latin patristic literature, and Visigothic law more persuasive, analogies for these developments must be sought in the legal and theological literature of the Greek east. As Fitzgerald has implied, suggesting that the Greek patristic condemnation of perjury intensified during ‘the post-Constantinian period’,76 I suspect that there are analogies to be found.

Finally, from the perspective of the central Middle Ages, I wish to devote a separate study to the reception of Visigothic perjury ideas in Carolingian Europe. While northern Europe at this time was in many ways a very different world – and part of the purpose of this dissertation has been to show that a history of late antique and early medieval perjury and false witness can be written without primary reference to the Franks77 – late Roman and patristic ideas of perjury and false witness lived on in northern European experience. The Carolingian bishop Agobard of Lyons, for example, who played a prominent role in the public penancing of the emperor Louis the Pious (r. 814–40) for perjury in 833,78 is usually thought to have been of Visigothic origin.79 So too was Theodulf of Orléans, one of the Carolingian exegetes who applied the Second or Third Commandment of the Decalogue to cases of perjury specifically.80 For Pierre Riché, Visigothic ‘refugees’ like Theodulf and Agobard were important contributors to ‘the Carolingian renaissance’, who brought with them the works of Visigothic hagiography, the Collectio Hispana, and the writings of Martin of Braga, all of which we have seen at least in part.81 According to the medieval legal historian Joshua C. Tate, meanwhile, the Carolingian forgers of The Decretals of Pseudo-Isidore made use of both The Roman Law of the Visigoths and the Visigothic Book of the Judges, especially in passages designed to protect the legal interests of defendants and to render

76 Fitzgerald, ‘Problem’, 159. 77 Contrast Franz von Liszt, Meineid und falsches Zeugniss: Eine Strafrechts-geschichtliche Studie (Vienna: Manz, 1876), 52. 78 Agobard, Chartula de Ludovici imperatoris poenitentia, De divisione imperii, and Liber apologeticus. 79 Annales Lugdunenses, a. 782. See e.g. Mayke de Jong, The Penitential State: Authority and Atonement in the Age of Louis the Pious (Cambridge: Cambridge University Press, 2009), 144–5, 240. 80 See p. 3 n. 10. 81 Pierre Riché, ‘Les réfugiés wisigoths dans le monde carolingien’, in Jacques Fontaine and Christine Pellistrandi, eds, L’Europe héritière de l’Espagne wisigothique, Collection de la Casa de Velázquez 35 (Madrid: Rencontres de la Casa de Velázquez, 1992), 177–83. 226

the testimony of witnesses more rigorous.82 As with Byzantium, I expect that there are numerous points of contact to be shown between Visigothic Spain and medieval Francia, and Frankish attitudes towards perjuries and false testimony can be reassessed in light of the late Roman and patristic inheritance.

Standing at the intersection of law and religion, perjuries occupy an ambiguous place in the history of the Latin Mediterranean. On the one hand, oaths themselves tended to be unnecessary, and numerous Roman legal writers seem to have taken little interest in them. The Justinianic and Theodosian Codes deal with perjuries very minimally or not at all,83 and classical literary authorities such as Cicero and Tacitus seem to have regarded the violated oath as a kind of aristocratic vice, certainly subject to ostracism but not to criminal, legal penalties.84 The New Testament, for its part, advised against oath taking completely: the Levitical law on perjury was set aside,85 and perjuries were treated as primarily non-Christian problems.86 On the other hand, numerous inhabitants of the Roman empire, including Christians, made use of the oath for all kinds of different purposes,87 and at least some these imperial denizens considered that ‘charges of perjury’ existed ‘according to the laws’ (leges).88 Others believed that perjury was a serious enough offence to require a solemn anathema against anyone who held the opinion that it was permissible.89 At least for late antique and early medieval audiences, a distinctive feature of the sources they have bequeathed to us is that oath violations tended to come within the scope of law – appearing in the penalty clauses of private agreements, in provincial legal manuals, in complaints to the emperor and his representatives, in certain acts of legislation, and in certain canonical acts,

82 Joshua C. Tate, ‘Roman and Visigothic Procedural Law in the False Decretals of Pseudo-Isidore’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanon. Abt. 121/90 (2004): 510–19. For an example see LV 2.4.5 (Chindasuinth) and Collectio Isidori Mercatoris, ‘Epistola decretalis Calixti papae’, 17, ed. Paul Hinschius, Decretales Pseudo-Isidorianae et Capitula Angilramni (Leipzig: Bernhard Tauchnitz, 1863), 141, discussed at Tate, ‘Roman and Visigothic Procedural Law’, 516–18. 83 See p. 13 n. 68. 84 Helen Silving, ‘The Oath: I’, The Yale Law Journal 68/7 (1959): 1337. 85 Matt. 5:33–7. 86 1 Tim. 1:10. 87 See pp. 31–2, 103–4, and Uhalde, ‘Christian Oaths’. 88 Tjäder, Die nichtliterarischen Papyri, i, no 8, p. 240, l. 2.1: ‘ut periurii reatus incurram secundum leges’. 89 Rufinus, Apologia adversus Hieronymum, 2.3. 227

records, and collections of the Christian church. At least in the western Mediterranean, and at least for a period of time, perjury was more than ‘a kind of word’, as Salvian of Marseilles insisted in the fifth century. Rather, perjury was a ‘crime’, which aroused the passions of observers such as himself, and invited periodic but potentially severe discipline from magistrates and bishops.90

90 Salvian, De gubernatione Dei, 4.14, ed. Georges Lagarrigue, Salvien de Marseille: Oeuvres, SC 220 (Paris: Cerf, 1975), 288: ‘[Q]ui periurium ipsum sermonis genus putat esse non criminis?’ (tr. Jeremiah F. O’Sullivan, The Writings of Salvian, The Presbyter, The Fathers of the Church 3 [Washington, DC: The Catholic University of America Press, 1947], 115). 228

A Note on the Text, Abbreviations, and Bibliography

Whenever possible, this dissertation has made use of standard editions and translations of primary sources in use amongst scholars of the European Middle Ages. All quotations and translations of The Theodosian Code and related documents (including The Sirmondian Constitutions and Novels of fourth- and fifth-century Roman emperors) are of the Latin and English editions of Mommsen and Pharr, respectively. English translations of Justinian’s Digest are taken from Watson. Iberian church councils and documents (notably excluding the Exemplar iudicii inter Martianum et Aventium episcopos) can be found in the España cristiana edition by Vives; North African and Gallican church councils and documents are to be found in the CCSL editions of Munier and Munier and de Clercq, respectively. Biblical translations are taken from the 1899 American edition of the revised Challoner Douay–Rheims. Remaining unattributed translations are my own.

11 Abbreviations

ANRW Aufstieg und Niedergang der römischen Welt

CCCM Corpus Christianorum Continuatio Medievalis

CCSL Corpus Christianorum Series Latina

CJ Codex Justinianus

ChLA Chartae Latinae Antiquiores

CSEL Corpus Scriptorum Ecclesiasticorum Latinorum

CTh Codex Theodosianus

D Digesta seu Pandectae Justiniani Imperatoris

FIRA(1) Fontes Iuris Romani Antiqui

FIRA(2) Fontes Iuris Romani Antejustiniani

GCS Die griechischen christlichen Schriftsteller

229

LCL Loeb Classical Library

LRV Lex Romana Visigothorum

LV Lex Visigothorum

MGH Monumenta Germaniae Historica

AA Auctores Antiquissimi

Capit. Capitularia

Conc. Concilia

Epp. Epistolae

Form. Formulae Merowingici et Karolini aevi

LL Leges

LL nat. Germ. Leges nationum Germanicarum

SS Scriptores

SS rer. Mer. Scriptores rerum Merovingicarum

PL Patrologia Latina

PS Pauli Sententiae

SC Sources chrétiennes

TRW Transformation of the Roman World

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