promoting access to White Rose research papers Universities of Leeds, Sheffield and York http://eprints.whiterose.ac.uk/ This is an author produced version of a paper published in Millennium: Jahrbuch zu Kultur und Geschichte des ersten Jahrtausends n. Chr. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/77018 Published paper Hillner, J.D. (2013) Confined exiles: an aspect of the late antique prison system. Millennium: Jahrbuch zu Kultur und Geschichte des ersten Jahrtausends n. Chr., 10 (1). pp. 385-433. ISSN 1867-0318 http://dx.doi.org/10.1515/mjb.2013.10.1.385 White Rose Research Online [email protected] 1 2 3 4 Confined Exiles: An Aspect of the Late Antique Prison 5 System* 6 7 Julia Hillner 8 9 10 Abstract: A number of Roman imperial laws from the fifth and sixth centuries address 11 the phenomenon that convicts to banishment were held in confinement. A law by Justinian, issued in 529, strictly prohibits the practice. This article investigates how 12 widespread the practice of confining exiles was, why it was applied, and, finally, why it 13 was deemed to be illegal, drawing on late antique laws on the use of prisons and exile, 14 anecdotal evidence, particularly from church historians, on the exile of late antique 15 clerics, as well as letters and treatises written by exiles in confinement themselves. The 16 article argues that the practice can be linked to a peculiar late antique normative mindset about the ideal function of exile, which foregrounded social hygiene and 17 morality, but, somewhat paradoxically, neglected resulting security issues. This led to 18 frequent subsequent attempts by provincial authorities to restore order through 19 confining seditious exiles. At the same time, ideas of honour in Roman culture and the 20 fashioning of the Christian past defined imprisonment as abusive, which meant that the 21 practice could not be endorsed by the imperial authority. 22 23 Early in his reign, the emperor Justinian (526–565) set out to overhaul the 24 disordered ways in which prisons were used in his empire. In 529, he issued no 25 less than three laws on the current prison system. The first one dealt with the 26 27 * I undertook the bulk of the research underlying this article while holding an Alexander 28 von Humboldt Fellowship at the University of Frankfurt in 2011–12. I would like to 29 thank the Humboldt Foundation and my host, Hartmut Leppin, for their support. An earlier version of this paper was delivered at the Colloquium Classicum at the Uni- 30 versity of Frankfurt in May 2012 and I am very grateful for the audience’s critical 31 comments. All cited passages from the Digest (D), the Code of Justinian (CJ), Justi- 32 nian’s Institutes and the Novels of Justinian (NJust) are from P. Krueger, Th. Mommsen, 33 R. Schoell, G. Kroll, Corpus Iuris Civilis, 3 vols. (Berlin, 1840–1926); all passages cited 34 CTh, NVal, Sirm. are from Th. Mommsen, P. Meyer, Theodosiani Libri XVI et Leges Novellae (Berlin, 1905). Further abbreviations used: AASS=Acta Sanctorum ; 35 ACO=Acta Conciliorum Oecumenicorum; CC=Corpus Christianorum, Series Latina; 36 CIL=Corpus Inscriptionum Latinarum; CSCO=Corpus Scriptorum Christianorum 37 Orientalium; CSEL=Corpus Scriptorum Ecclesiasticorum Latinorum; FIRA=Fontes 38 iuris Romani anteiustiniani; GCS=Die griechischen christlichen Schriftsteller; Loe- = = 39 b Loeb Classical Library; MGH AA Monumenta Germaniae Historica, Auctores Antiquissimi; PG=Patrologia Graeca ; PL=Patrologia Latina; PLRE=Prosopography 40 of the Later Roman Empire; PLS=Patrologia Latina Supplementa ; PO=Patrologia 41 Orientalis ; RE=Paulys Realenzyklopädie der classischen Altertumswisschenschaft; 42 SC=Sources chrétiennes. 386 Julia Hillner 1 question of how long those charged with a crime could be held in preventive 2 custody before trial. Justinian established a maximum detention period for the 3 accused. A free man should only be held for up to twelve months, if accused by a 4 private citizen, or six months, if the investigation had been launched by the 5 judge himself. Only where guilt was manifest or the crime serious, defendants 6 could be held without time limits.1 A second law concerned the use of private 7 prisons (Qdiytij±rvukaj²r). Whether they were in town or country, Justinian 8 strictly prohibited them. Anyone who had held someone in a private prison for a 9 certain period of time was to be punished by imprisonment in a public prison for 10 the same period of time.2 The third law regulated the place of exile a provincial 11 governor, or other magistrate with judicial competences, could choose for those 12 sentenced to banishment. As a rule, exiles were not to be confined either in the 13 prison at the place of their trial or anywhere in the province to which they had 14 been banished.3 15 Historians have frequently examined Justinian’s laws on preventive custody 16 and on private prisons. On both issues, these were only the last in a series of 17 imperial legislation. This evidence has been used to shed light on the arbitrary 18 and coercive ways in which late antique provinces were governed and the 19 wealthy and powerful conducted their private business. Public prisons, it seems, 20 were full of people whose trials were never held or whose sentences never 21 enforced, or of people who by law were not supposed to be there, such as tax 22 debtors. Private prisons, in turn, served to put pressure on debtors, extort money, 23 enforce sales, or gain a profit of some other kind.4 Much of our evidence on the 24 25 1 CJ 1.4.22 (529), CJ 9.4.6 (529), CJ 9.47.26.3 (529): all three were originally part of the 26 same promulgation; see also CJ 9.47.6.1 (529) which refers to the legislation on 27 prisoners on remand. 28 2 CJ 9.5.2 (529). 29 3 CJ 9.47.6 (529). I use the term ‘confined’ instead of ‘imprisoned’, because not all exiles in question were held in public prisons; a fact the law also acknowledged. Even though, 30 as we shall see further below, ‘confinement’ in an alternative space could and would 31 easily be conceptualised as ‘imprisonment’. 32 4 On preventive custody: CTh 9.3.1.pr (320); CTh 9.3.6 = CJ 9.4.5 (380); CTh 33 9.1.18 (396); on private prisons: CTh 9.11.1 (388); CJ 9.5.1 (486). On both issues see 34 J.-U. Krause, Gefängnisse im Römischen Reich (Stuttgart, 1996), 75–79 and 60. On long- term custody without trial see also A. Lovato, Il carcere nel diritto penale romano dai 35 Severi a Giustiniano (Bari, 1994), 216–7; V. Neri, I marginali nell’occidente tardoantico. 36 Poveri, “infames”, e criminali nella nascente società cristiana (Bari, 1998), 25; on private 37 imprisonment : O. F. Robinson, ‘Private Prisons’, Revue internationale des droits de 38 l’antiquité 15 (1968), 389–398; J.-U. Krause, Spätantike Patronatsformen im Westen des 39 römischen Reiches (München, 1987), 115– 116; A. Marcone, ‘La carcerazione nell’Egitto tardoantico’, in C. Bertrand-Dagenbach (ed.), Carcer: Prison et privation de liberté dans 40 l’Antiquité classique (Paris, 1999), 41– 52; S. Torallas, ‘Violence in the Process of Arrest 41 and Imprisonment in Late Antique Egypt’, in H. Drake (ed.), Violence in Late 42 Antiquity: Perceptions and Practices (Aldershot, 2006), 101– 110. Confined Exiles: An Aspect of the Late Antique Prison System 387 1 practice of private imprisonment, particularly where linked to debt, originates 2 from Egyptian papyri, but it was rife throughout the late Roman empire.5 It is 3 recorded, for example, in the spectacular fraud case of Antony of Fussala, 4 Augustine of Hippo’s former protégé and a black sheep among late antique 5 bishops if ever there was one. Antony made the estate steward of the church of 6 Fussala detain a man in private prison (custodia privata) to force him to sell the 7 bishop his land at a price below its real value.6 8 By contrast, much less attention has been paid to the detention of those 9 convicted to banishment, despite a recent rise of interest in the history of exile 10 as a legal penalty in late antiquity.7 This article will look at the phenomenon of 11 confined exiles. After attempting a definition of what ‘prison’ and ‘exile’ meant 12 in late Roman law I will present the legislation that dealt with the practice of 13 confining those sentenced to banishment in more detail. I will then proceed to 14 examine the evidence we have for incidents of this practice, which indeed seems 15 to have been wide-spread, certainly much more so than in classical antiquity. It 16 is particularly noticeable in, but not exclusive to, the case of banished clerics. I 17 will argue that the practice can be linked to a peculiar late antique mindset 18 about the function of exile, which foregrounded social hygiene and morality, but, 19 somewhat paradoxically, neglected resulting security issues, leading to frequent 20 subsequent attempts to restore order through confining seditious exiles. 21 Some of those who underwent periods of imprisonment while in exile left us 22 detailed accounts, most notably, but not exclusively, Eusebius, bishop of Vercelli, 23 who was banished to Scythopolis after the council of Milan in 355.8 Such 24 accounts offer an invaluable insight not only into actual experiences and the 25 varied places used for detaining exiles, but also, more importantly, into their 26 literary representations and the ways in which experiences were developed 27 rhetorically to reveal an abuse of the system that was also of concern to 28 legislators.