Chapter 10. Empowering Bishops
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Chapter 10  Empowering Bishops Redistributing Power At the same time that Constantine was redirecting landed and movable property from cities and temples to Christian churches and building Christian architecture into the urban infrastructure of cities, he was also working to transfer power from traditional civic magistrates to the officers of the church. Once again his steps in this direction were neither comprehensive nor decisive, but they pointed the way toward a shift in civic power that would, over the course of the next two centuries, become complete. In this chapter, we briefly examine this process in four primary arenas: Constantine’s grant to bishops of the right to adjudicate civil cases with full reliance on imperial authorities for the enforcement of their decisions (episcopale iudicium); his institution of a new manumission process whereby Christian clergy could offer full and formal freedom to slaves in their places of worship; his opening of the use of the public posting system (cursus publicus) to Christian clergy; and his grant of curial immunity to Christian clerics. Each of these new privileges represented a significant departure from earlier precedent, and they quickly began to be overused and abused by individuals eager to seize on these new opportunities for personal gain. As with the grants of public subsidies, these new rights were thus repealed by Julian and later restored only with some reluctance—and considerable restrictions—by his Christian successors.Nevertheless,withthisredistributionofpower atthe local level fromcivic aristocrats and members of the old curial elite to a new class of civic grandee, the bishop, Constantine was initiating a trend that would eventually result in the radical transformation of power structures at the local level in all ancient cities.1 The Power to Judge The most obvious example of this is the attribution to local bishops of the right to judge civil cases. Already Matthew’s gospel (18:15–17) and Paul’s First Epistle to 198 Reconstructing the Ancient City the Corinthians (6:1–6) admonish Christians to avoid bringing suit against one another in the courts of unbelievers and advise instead that they settle disputes among themselves. Following this same principle, the third-century Didascalia Apostolorum and its fourth-century descendant the Constitutiones Apostolorum set out procedures for Christians to settle conflicts before bishops.2 Within six years of the Battle of the Milvian Bridge, Constantine issued legislation that formalized this process and integrated it into the state judicial apparatus by creating what he called episcopale iudicium (the bishop’s jurisdiction), later referred to as audientia episcopalis. Previous work on audientia episcopalis has been abundant, yet many questions remain, in large part because of difficulties in the source record.3 C. Humfress has even gone so far as to suggest that the extant laws on the matter do not indicate the creation of a new judicial procedure but represent instead responses to petitions about a system of informal arbitration, long permitted in Roman law, that simply extended this authority to bishops.4 This surely underestimates the scope of Constantine’s innovation. Extant Constantinian laws on the question number just two: Theodosian Code 1.27.1 of June 23, 318,5 and Sirmondian Constitution 1 of May 5, 333. Although they constitute meager evidence, both offer clear signs that these were only part of what was originally a larger dossier of legislation on the matter. The former is transmitted through the Theodosian Code, whose compilers heavily abbreviated original laws as part of their process of excerption. Furthermore, it derives from that part of the Code that was not transmitted to modern times in the manuscript tradition and which must therefore be reconstructed—with major gaps—from the Justinian Code and the Breviarium of Alaric.6 It is thus possible that CTh 1.27.1 was not Constantine’s only law on episcopale iudicium in the Code as originally published. Moreover, it is certain that this constitution lacks a considerable amount of its original verbiage, which would have recorded the details surrounding its issuance and possibly more specifics on the provisions of the law itself. Nevertheless, as transmitted, 1.27.1 shows no obvious evidence that it responds to a specific case at law. On the contrary, at first face it would appear to be a general law stating that any suit may be brought for resolution to the bishop’s jurisdiction, even if it had already been initiated before a civil judge. Moreover, the law states that the decisions of bishops should be considered “as sacred” (pro...


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