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Summing up the findings, our study showed that, according to
the opinions of the doctors questioned: about one-fourth of the
women of child-bearing age, not known to be >terile, and under
the care of a doctor, were using the rhythm method, and almost
one-third of those who combined it with artificial contraception
are included; the practice of the method is increasing, particularly
among Catholics ; it is not too complicated for use by most women
in the opinion of two-thirds of the doctors and S3 per cent of the
gynecologist-obstetricians; the median effectiveness is 71 per cent
in the opinion of all the doctors and 84 per cent in the opinion
of Catholic doctors; younger doctors seem to have more confidence
in the method; graduates of Catholic medical schools are more
favorably inclined, although this finding is tempered by the fact
that most of these graduates are Catholics; and 21 per cent of
the doctors thought that the rhythm method was more effective
or at least equally as effective as artificial contraceptives.
These findings are directly counter to the objectives of the cam­
paign previously referred to because they indicate that the rhythm
method is rather effective, is quite widespread and apparently in­
creasing in use, and seems to be adapted to effective use by most
women. It is important that Catholic priests and other counselors
know these facts. Evidently we cannot be partners in a campaign
which advocates childlessness or family limitation for insufficient
reasons, but it does not seem wise to ignore the facts, either to
minimize the extent of its practice or to discourage its use simply
by minimizing its effectiveness or practicality. It may be that con­
traceptives are being abandoned as more and more couples are
adopting the rhythm method which, though condemned for general
and unrestricted use, is nevertheless ethically justifiable under cer­
tain conditions.
Bro. Gerald J. Sciinepp, S.M.

and
Joseph Mundi

St. Louis University
St. Louis, Missouri

THEODOSIUS’ LAWS ON HERETICS
Occasionally it is suggested that St. Augustine (354-430) was
a Catholic because that was the only Christian group available at
the time. The Emperors Theodosius and \ alentinian, however,
apparently felt differently about the matter when they gave their
decree of May 30, 428. In that decree they indicated to Idorentius,
the Pretorian Prefect, that he was to make a distinction in his
treatment of various groups which call themselves Christians. Fhey
were not all to be treated with the same austerity.1
The Arians, the Macedonians, and the Apollinarians, whose
crime is, the Emperors said, that deceived by a damaging medita­
tion they believe falsehoods about the source ot truth, arc not
permitted to have a church in any city. T he Novatians and Sabbatians, on the other hand are not to have permission to make any
renovations, in case they should attempt any.
The Eunomians, the Valentinians, the Montanists or Priscillians, the Phrygians, the Marcianists, the Borborians, the Messalians, the Euchites or Enthusiasts, the Donatists, the Audians, the
Hydroparastates, the Tascodrogites, the Photinians, the Paulians,
the Marcellians, and those who have descended to the very depths
of iniquity, the Manicheans (to whom St. Augustine once be­
longed), are never to be permitted to gather or pray on Roman
soil. The Manicheans are even to be expelled from the cities, tor
no place is to be left to all these people in which they may do
harm to the very elements.
All in all, St. Augustine had a wide choice of groups calling
themselves Christians to which he could have attached himself,
had he not been convinced of the truth of Catohlic dogmas.
When the Emperors transferred their favor from the ancient
pagan religion to the newer Christian Church they were soon
confronted with the divisions which had been foretold by St.
Paul.2 By the year 386 Valentinian, Theodosius, and Arcadius
decreed that if those who thought they alone had a right of as­
sembly created any disturbance of the public peace they were to be
treated as guilty of sedition and of disturbance of the peace of
iCf. C. Th. 16.5.65.2; C. Th. 16.5.65.3.
2 Cf. I Cor. 11:19.
117

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the Church, and were to be punished by death tor /Em majesté?
Two years later they ordered that no one be permitted to make
a public appearance either to dispute about religion or to discuss
it or give advice about it. Anyone who violated this law was to
be punished w’ith proper penalties.34 Anyone who did not observe
the general law against religious disturbances and who did not
show improvement in his conduct after being punished but con­
tinued to disturb the Catholic faith and people was to be de­
ported.5 All officials were warned to keep away from tumultuous
gatherings on penalty of being deprived of office and of having
their property confiscated.6
Slave-holders at Rome were warned to keep their slaves away
from such tumultuous gatherings on penalty of a fine of three
pounds gold for each slave who wras present at the forbidden
assemblies. Corporations were also liable to a fine of fifty pounds
gold if one of their membership held a forbidden assembly.7
Provincial officials were warned to prevent the forbidden gather­
ings of those who left the orthodox religion and tried to hold
meetings elsewhere than in the churches, i.e. those who were not
in communion with Bishops Arsacius, Theophilus, and Por­
phyrins.8
Accustomed to the unified control which they were able to
exercise over the pagan religion when Syncretism had brought
3 Cf. C. Th. 16.4.1 (Jan. 23, 386). Title IV is: De his, qui super religione
contendunt.
4 Cf. C. Th. 16.4.2 (June 16, 388).
5 Cf. C. Th. 16.4.3 (July 18, 392).
6 Cf. C. Th. 16.4.4 (Jan. 29, 404). Whether or not this is a case of “guilt
by association,” the Emperors evidently did not want their public officials to
have anything to do with groups which they considered a menace to public
peace. Cf. U. S. Loyalty Program, 3 Code Fed. Regs. 129 (Supp. 1947).
7 Cf. C. Th. 16.4.5 (Sept. 11, 404). This law, indirectly, increased the
police forces of the State without increasing costs of policing for it enlisted
all slave-holders and all organizations on the side of the law for fear of being
fined should any slave or member take part in the gatherings the Emperors
were trying to prevent. If they were successful in watching over those under
their control the Emperors achieved their purpose of stopping the meetings,
if they were not the imperial coffers were enriched so that more police could
be hired to stop the meetings.
8 Cf. C. Th. 16.4.6 (Nov. 18, 404). This introduces the reverse of the
“guilt by association” test. If a person is associated with those approved by
the Emperors, he is also approved.

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i
J
I

119

all the pagan deities into a hierarchy· with the Sun-god at it> head,
the Emperors were not loath to accept the idea that those who
did not accede to the decisions of the majority or the Cathode
Bishops gathered in Council were not read} Christians, no matter
how much they might claim that their doctrine was the true
teaching of Christ. Desirous of having uniformity in this new
religion which they had espoused, the Emperors undertook to
legislate against those whom the majority of the Church had
condemned as “heretics.”910
11
Constantine had from the very beginning decreed that the privi­
leges which had been accorded in favor of religion were to be
restricted to the observers of the Catholic law alone, Heretic* and
schismatics were not only deprived of such privileges but were also
subjected to various imposts.1"
He did, however, permit the Novatians to keep their churches
and cemeteries which they had had for a long time. They were
not, however, permitted to seize property which had alwaj’S be­
longed to the churches before they decided to leave.11
After the severe struggles, when it seemed for a time that the
Arian party might succeed in taking over the Church with the
assistance of the Emperors,1213
the imperial power swung once again
to the side of the Catholic Church against those whom it considered
as heretics. Thus, in 372, Valentinian and Valens condemned the
Manicheans. If they held any meetings, the leaders were to be
heavily fined, while the people who attended the meetings were
to be banished as infames1'·1 and disreputable. The houses in which
the meetings were held were to be confiscated.14
Valens, Gratian, and Valentinian decreed confiscation of any
place in which altars were set up in furtherance of a false religion,
9 Title V of the Theodosian Code is entitled: De Haereticis. The Catholic
Church had long been excluding from its membership those who wanted to
pick and choose their beliefs instead of accepting the whole Christian teaching.
10 Cf. C. Th. 16.5.1 (Sept. 1, 326).
11 Cf. C. Th. 16.5.2 (Sept. 25, 326). Cf. Zellmann, .lincrican Church l.a-w,
PP. 250-80.
12 Cf. Martin, Caesaropanism in Action, AER, CXXI1. 2 (Feb. 1950),
121 ff.
13 Infamia was an institute of Roman Law whereby certain actions or
professions or condemnations brought with them a diminution of legal capac­
ity, e.g. to make a will. Cf. infra, note 19.
“Cf. C. Th. 16.5.3 (March 2, 372).

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as a means of stopping usurpation by a heretical group of the
position of the Catholic Church. Confiscation was to take place
whether the meeting was held in a city or in the country. If the
meeting was aided by failure of the judges to act against it or by
the wickedness of others, they were both to be punished.15
Gratian, \ralentinian and Theodosius also attempted to put an
end to heretical groups. They forbade such groups to preach or
baptize. They forbade the teachers and ministers of “this perverse
superstition,’’ whether they called themselves “bishops’’ or
“priests” or “deacons,” though they were not even to be con­
sidered “Christians,” to have any part in the gatherings of this
“condemned opinion.”16
The same Emperors, two years later, decreed that the heretics
must have no place for the celebration of religious worship and
no opportunity for exercise of the “insanity of an obstinate mind.’’
Whatever grants of privilege they might have obtained were de­
clared void. They were not permitted to hold meetings. The name
of one supreme God was to be honored everywhere. The Nicene
faith was to be observed. The contamination of the Photinian
stain, the poison of the Arian sacrilege, the crime of the Eunomian
perfidy and the unspeakable manifestations of sects indicated by
the outlandish names of their authors were not even to be heard
of again.17
The profession of the Nicene faith was made the test. Those
who did not accept it were to cease to take unto themselves the
name of the true religion which did not belong to them and were
to be known by their open crimes. They were to be removed from
the churches and were to be kept away from them. They were
forbidden to hold meetings within the towns, and if they tried
to create a factious disturbance they were to be banished. The
Catholic churches were to be restored to the orthodox bishops
who held fast to the Nicene faith.18
Later that same year the Emperors decreed that since Manicheans were infames they had no right, under Roman Law, either
to make a will or to take by succession. The property was con15 Cf. C.
16 Cf. C.
it Cf. C.
is Cf. C.

Th. 16.5.4 (Apr. 22, 376 [378?]).
Th. 16.5.5 (Aug. 3, 379).
Th. 16.5.6 (Jan. 10, 381) ; C. Th. 16.5.6.1.
Th. 16.5.6.2.

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121

fiscated by the State. This was so, whether the property was left
to a husband or a relative or any deserving person or even to the
children, if they were guilty of the same kind of life and crimes.’9
This law was, furthermore, made retroactive, so that confisca­
tion would apply to past transactions. Conscious of the difficulty
raised by such retroactivity, since ordinarily their "heavenlv
statutes”20 had prospective rather than retrospective force, the
Emperors excused themselves on the ground that the habit of
obstinacy and the pertinacious nature of these people required
such special legislation as a sanction for their “sense of just indig­
nation” against such as continued to hold unlawful meetings
despite the previous ban. The Emperors considered them guilty
of insult to the previous law and of sacrilege. The severity of
the present law was, therefore, to be considered not so much an
example of a law enacted but of a law vindicated, so that a defense
on the basis of the time at which the offense occurred should not
be allowed.21
The Emperors enlisted the children on their side by decreeing
that only those should be entitled to take by succession from their
father or mother who, although they were born of Manichean
parents, had turned to the true religion and were thus freed from
any guilt.22
The Manicheans were also forbidden to have places for their
services. They were banished from the cities. If they tried to
disguise themselves under such names as Encratites, Apotactites,
Hydroparastates or Saccophori they were still to be outlawed.
They were not to be protected by profession of a name, but were
to be known and execrated by reason of the crime of their sects.23
In the same year the same Emperors forbade the Eunomians,
the Arians, and the followers of Aetius to build churches whether
in town or in the country. If such buildings were erected con­
trary to law, both they and the land on which they were built were
to be confiscated.24
1»Cf. C. Th. 16.5.7 (May 8, 381).
20 The Emperors might be Christian, but they still retained the phrase­
ology of the times when they were revered as gods.
21 Cf. C. Th. 16.5.7.1.
22 Cf. C. Th. 16.5.7.2.
23 Cf. C. Th. 16.5.7.3.
24 Cf. C. Th. 16.5.8 (July 19, 381).

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The very next year the Emperors repeated the lave of confisca­
tion of property which the Manicheans attempted io leave by will
or to give inter vivos, though they did allow the property to pass
by intestate succession provided there were heirs. If there were
no heirs the property went to the State.2526
27As for the Encratites,
Saccophori, or Hydroparastates, they were to suffer the extreme
punishment if they were found guilty of some trace of such crime.2b
The Pretorian Prefect was instructed to appoint inquisitor?,2| to
open a court, to get information and hear denunciations without
prejudice to the informers. No one was to prevent the starting of
this accusation by reason of ordinary lapse of time. No one was
to summon such secret gatherings of the heretics, whether in the
rural or in the urban areas.28 A further indication of guilt of
heresy was that one had not attended church on Easter.29
The year after this the Emperors decreed that the Tascodrogites
were not to be expelled from the places they owned. No crowds,
however, were to gather at a heretical church, or, if they gathered,
they were to be broken up without delay.30
A month later they decreed that Eunomians, Arians, Mace­
donians, Pneumatomachi, Manicheans, Encratites, Apotactites,
Saccophori, Hydroparastates were forbidden to hold meetings, to
gather a crowd together, to invite people to come to them, to
indicate a private building as a church, or to do anything either
publicly or privately which might offend Catholic sanctity. If
anyone disobeyed the law permission was given to all who esteemed
the beauty of the true observance to expel him by the common
consent of all.31
25 Cf. C. Th. 16.5.9 (March 31, 382).
26 Cf. C. Th. 16.5.9.1.
27 Cf. C. Th. 16.5.9.1. These are, therefore, police officers of the State,
though “inquisition” is usually considered as a function of ecclesiastical au­
thority. An analogue of this is, to some extent, the Gestapo, the Cheka
(MVD), or the OVRA. It does not appear, however, that the “inquisitores”
mentioned in this law were to be more than a fact-finding group. Mention
is made of the opening of a court, so it would appear that the secret police
here had none of the judicial functions assumed by the secret police in the
modern “police-state.”
28 Cf. ibid.
29 Cf. C. Th. 16.5.9.2.
30 Cf. C. Th. 16.5.10 (June 20, 383).
31 Cf. C. Th. 16.5.11 (July 25, 383).

THEODOSIUS’ LAWS ON HERETICS

123

In December they added to the previous provisions that the
heretics could not ordain any priests of their sect. Their buildings
were confiscated. Followers of the sects were to be driven out of
cities and any other places where they might be and forced to
return to the localities whence they had come. Provincial judges
and the chief officers of cities who were negligent in permitting
gatherings of prohibited congregations were subject to condem­
nation.32
A month later the Emperors decreed that “bishops” or “min­
isters” or “priests,” as they called themselves, of the Eunomian,
Macedonian, Arian and Apollinarian sects were to be hunted down
by a very careful investigation and were to be expelled from the
city. They were to be exiled far from the assembly “of the good
people.”33
Four years elapsed before the same Emperors again issued a
decree concerning heretics. This time it was the Apollinarians
who were named principally, though the other sects are also re­
ferred to in a general way. They were forbidden to gather and to
ordain a clergy. They were not to hold meetings, whether in public
or in private churches. They w-ere not to ordain “bishops,” and
those who had been ordained “bishops” were by this law deprived
of that title. They were to withdraw to a place which would wall
them off from the rest of mankind. Furthermore, they were de­
prived of the right to present any petition to the Emperors for
favors or for vindication of rights.31
Three months later they repeated the prohibition whereby here­
tics were not permitted to hold meetings, to hold discussions, or
even to hold secret meetings. They were forbidden to erect altars
and hold services. The Pretorian Prefect was to choose trusted
men who would be able to prevent them from violating the law
and to bring them to trial when they were caught so that they
could be punished most severely.35
Apparently, the heretics were not above fraudulent use of re­
scripts purporting to emanate from the imperial chancery to further
82 Cf. C. Th. 16.5.12 (Dec. 3, 383).
33 Cf. C. Th. 16.5.13 (Jan. 21, 384).
34Cf. C. Th. 16.5.14 (March 10, 388). This is a further restriction on legal
capacity, cf. Bonfante, Istituzioni di diritto Romano, pp. 59 f.
35 Cf. C. Th. 16.5.15 (June 14, 388).

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their own purposes. The Emperors, therefore, instructed the
Pretorian Prefect that the Arians had never been given such re­
scripts and that they were to be punished as counterfeiters.:b>
The Eunomians, the Emperors repeated, were not permitted to
make wills or to take under them. They were not permitted to
hold property, to seek to obtain property, or to designate an heir,
whether as principal, or as fideicommissarius, or as legatee, or
by a tacit trust or any other legal designation. All the property
was to be confiscated.36
37
A month later the Emperors gave a similar decree regarding
the Manicheans. Not only were they to be expelled from Koine,
but they were also to have their property confiscated and they
were forbidden to make wills.38
Toward the end of that year Valentinian, Theodosius, and Arca­
dius struck at the leaders of the various heresies, even as Decius
had struck at the leaders of the Christian Religion. They ordered
the expulsion of all “bishops,” “priests,” “deacons,” “readers,” or
“clerics.”39
Again striking at the leaders of the heretical groups, they de­
creed that such as were found to have ordained clerics or to have
undertaken the office of cleric were to be fined ten pounds gold.
The place in which the forbidden action had taken place was to
be confiscated, if it had been opened to these people by the con­
nivance of the owner. If, however, it appeared that the owner
had been kept in ignorance of what was being done, the lessee,
if a freeman, was fined ten pounds ; if a slave, he was whipped and
deported. If the action had taken place on imperial or public prop­
erty and the lessee and the procurator had permitted the assembly,
they were fined ten pounds gold. Those who aided such services
and claimed to be clergymen and were found out were fined ten
pounds gold, each one.40
36 Cf. C. Th. 16.5.16 (Aug. 9, 388?).
37 Cf. C. Th. 16.5.17 (May 4, 389). The Emperors at this time were
Valentinian, Theodosius, and Arcadius.
38 Cf. C. Th. 16.5.18 (June 17, 389).
3» Cf. C. Th. 16.5.19 (Nov. 26, 389); C. Th. 16.5.20 (May 19, 391) for­
bade all heretical meetings.
40 Cf. C. Th. 16.5.21 (June 15, 392).

THEODOSIUS’ LAWS ON HERETICS

125

Theodosius, Arcadius, and Honorius decreed that the heretics
were not permitted to create "bishops'' and that the approval of
those bishops was illicit.41
The attitude of the Emperors toward the Eunomians changed
in 394 and they allowed them to make wills as well as to take
by will.42 The permission, however, was short-lived, for the fol­
lowing year they again forbade them to make wills and take
under testamentary dispositions.43 Changing their minds again,
some three months later they allowed the Eunomians to make
wills.44 The permission was revoked again in 41 ().4:>
Heretics were still forbidden to have meetings, to teach their
doctrines or to be taught them. Their "bishops” were not to
preach, nor were they to ordain ministers. Furthermore, judges
and other officials were not, by connivance, to allow them to
multiply.46
Arcadius and Honorius repeated that all the penalties previ­
ously established against the heretics were in force in their reign,
and that any favors which had been conceded to them in the hope
of their correction were revoked, including those to the Eunomians
in regard to wills.47 Heretics were not to hold meetings or have
services, whether in public or in private, whether secretly or
openly. They were not allowed to use the title of “bishop” or those
of the ecclesiastical orders.48
They instructed Aurelian, the Proconsul for Asia, that slight
evidence (vel levi argumento) was sufficient for one to be con­
sidered a heretic and to be punished as such. On that basis he
was to consider one Heuresius a heretic and strike him from the
number of bishops who were approved.49
They ordered Marcellus, Master of the Offices, to conduct an
investigation of those who worked in the Chancery and in other
government positions to see whether any were heretics. If any
«Cf. C. Th. 16.5.22
«Cf. C. Th. 16.5.23
«Cf. C. Th. 16.5.25
«Cf. C. Th. 16.5.27
«Cf. C. Th. 16.5.49
46 Cf. C. Th. 16.5.24
«Cf. C. Th. 16.5.25
«Cf. C. Th. 16.5.26
«Cf. C. Th. 16.5.28

(Apr. 15, 394).
(June 20, 394).
(March 13, 395).
(June? 24, 395).
(March 1, 410).
(July 9, 394).
(March 13, 395).
(March 30, 395).
(Sept. 3, 395).

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were discovered they were not only deprived of their positions but
were banished from the city.30
They also ordered Clearchus, the Prefect of Rome, to expel all
heretical clergy from that city and to take from the heretics any
buildings they might possess there, whether they called them
churches or deaconries, and any private hontes in which they
were allowed to meet. All were to be confiscated. All their clergy
were to be expelled from the city. They were not to be permitted
to hold a meeting within the city whether by day or by night. If
they did, he, the Prefect, was fined one hundred pounds gold,
whether the meeting was held in a public place or in a private
home.51
The leaders, teachers, and clergy of the Eunomians who were
turned up by the inquisition were to be expelled from the cities.52
The Pretorian Prefect was to use every care to hunt them out
and expel them.53 The teachers of the Apollinarians, too, were
to be banished from the city. Furthermore, any place or house
which was used for their meetings was to be confiscated.31
The clergy of the Eunomians and of the Montanists were to
be banished from the cities. If they lived in the country and held
meetings there they were to be deported. The procurator of the
place was to be severely punished and the owner was to lose
the land, if they knew of the meetings and did not report them.
If, after the solemn publication of the decree, they were caught
in the city they were to be severely punished, after confiscation
of their property, and the house where they met and were not
at once expelled and reported by the owner was confiscated.33
In this decree the Emperors used once more the tactic of burn­
ing the books, as Diocletian had done to the Christian books in
his persecution. The books were to be burned in the presence
of the judges. If any one was convicted of having, by fraud,
hidden them or of not having given them up on any occasion, he
5" Cf. C. Th. 16.5.29 (Nov. 24, 395). “Loyalty check!’’
5’ Cf. C. Th. 16.5.30 (March 3, 396 [402] ). This was certainly an induce­
ment to the official to carry out the law. It would take a good sized bribe
to get him to overlook violations.
Cf. C. Th. 16.5.31 (Apr. 21 or 22, 396).
53 Ct. C. Th. 16.5.32 (Apr. 21 or 22, 396).
54 Cf. C. Th. 16.5.33 (Apr.? 1, 397).
55 Cf. C. Th. 16.5.34 (March 4, 398).

THEODOSIUS’ LAWS OX HERETICS

127

was to be put to death as guilty of keeping harmful books and of
the crime of doing harm.56
The Vicar for Africa, Dominator, was ordered to undertake
an inquisition against the Manicheans, to bring them out in the
open and punish them most severely. I· urthermore, those who
protected such persons in their homes were also to feel the weight
of authority.57
While the Eunomians were permitted, in 39(), to make wills,
they were forbidden to hold meetings and gatherings, d he pro­
curator of a farm or the steward of a town-house who allowed
them to hold services there was to be put to death, and the
property was to be confiscated, if the owner knew what was being
done on his property and <li<l not forbid it. The ministers of the
sect were to be deported, if they were caught holding a meeting,
and all their property was to be confiscated.58
The Donatists were making trouble, it seems, in 400 or 405
A.D. Arcadius and Honorius, therefore, instructed their Pretorian
Prefect, Hadrian, that the rescript which the Donatists claimed to
have received from Julian was not to be considered good.59
Noting that the Manicheans and Donatists were still strong,
the Emperors decreed that there should be one, Catholic, religion.
If anyone should dare to attend prohibited meetings he was to he
punished according to the innumerable past constitutions. If the
58 Cf. C. Th. 16.5.34.1. This and other provisions of the laws against
heretics in Title V of this sixteenth book- of the Theodosian Code give rise
at least to the suspicion that here one can find some of the provisions used
to outlaw the Christians during the period when they were persecuted. These
laws were, of course, abrogated when Christianity was made the official
religion of the Empire. They were not inserted in the collections which
have come down to us, for they had no application at the time the collections
were made. It is not unlikely, however, that in searching for methods of
outlawing heresies the Emperors turned to previous experience gained from
attempts to outlaw Christianity. While the methods had not been completely
successful, for Christianity did triumph in the end, nevertheless they had
had a certain success, as is apparent from the discussions of the Fathers
concerning the method of treating the lufrsi who had yielded under torture
and had given up their faith (cf. Cyprian, De lafsis, c. 7-9. CSEL III, 241
ff.; MPL IV, 471 ff.
57 Cf. C. Th. 16.5.35 (May 17, 399).
88 Cf. C. Th. 16.5.36 (July 6, 399).
59Cf. C. Th. 16.5.37 (Feb. 26 [2], 400 [405D-

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meeting turned into sedition, the penalty would be more severe.60
The Donatists, indeed, were to be punished,61 but punishment
was also to be meted out to the Manicheans or Phrygians or
Priscillians. They were not to have anything in common with
other men.62 First of all, they were to be considered guilty of a
public crime, for, said the Emperors, what was done contrary to
the divine religion was an injury to all.63
Just as in the Christian persecutions brother was sometimes
turned against brother in the hope of obtaining the property of
the one condemned as a Christian, so now the Emperors decreed
that when confiscation of a heretic’s property was called for under
the law, that property should go to his relatives, ascending or
descending, or collateral, up to the second degree, provided they
were not themselves heretics.6465
66
The heretics were not to take by will or by gift, nor were they,
after conviction, to make gifts, buy, or sell, or make contracts.60
The inquisition was to extend even to those who were dead. As
in crimes of lèse majesté it was permissible to accuse even the
memory of the deceased, so here they declared the same thing held
good. In consequence, even a last will was void, whether by
will or codicil or letter or any other means a person proved to
be a Manichean or a Phrygian or a Priscillian had tried to leave
property. The children could not take as heirs unless they had
given up the sect. Pardon, said the Emperors, they granted to
those who w’ere contrite, even as the Christians had not been
punished for having been Christians, if they consented to sacri­
fice to the image of the Emperor.60
Slaves were not to be punished if they left an heretical master
to return to the Catholic church. 67 Land where meetings of the
heretics had been held with the knowledge, though without the
participation, of the owner who had not forbidden such meetings,
was to be confiscated even though the owner did not himself be­
60 Cf. C. Th. 16.5.38 (Feb. 12. 405).
61 Cf. C. Th. 16.5.39 (Dec. 8, 405).
6“ Cf. C. Th. 16.5.40 (Feb. 22, 407).
63 Cf. C. Th. 16.5.40.1.
Cf. C. Th. 16.5.40.2.
65 Cf. C. Th. 16.5.40.3; C. Th. 16.5.40.4.
66 Cf. C. Th. 16.5.40.5.
67 Cf C. Th. 16.5.40.6.

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129

long to the sect. If the owner was unaware of the use to which
his land was being put, the procurator was to be scourged and con­
demned to the mines. The lessee was to be deported.
The provincial governor who favored such heretics or tried not
to see that they were operating in his district or failed to punish
them after conviction was fined twenty pounds gold. Heads of
cities and provincial officers were fined ten pounds gold if they
failed to use the wisest and most carefid methods in executing the
judgments rendered in these matters.00
As if to explain more fully the pardon granted to those who
renounced heresy, Arcadius, Honorius, and Theodosius wrote to
Porphyrius, Proconsul for Africa in 407. In that decree they said
that although punishment usually purges out crimes, they pre­
ferred the correction of men’s evil wills through the admonitions
of penance. Consequently, if any heretics, whether Donatists or
Manicheans, or those following any other false opinion and be­
longing to a sect which observed profane rites, should embrace
with simple confession the Catholic faith and rites which they de­
sired to be observed by all men, though they had followed the old
wrongful doctrine for so long that they might be thought liable
to punishment even under previous laws, still, they were to be
considered free from all taint as soon as they confessed God in
simple faith. As to every guilt, whether contracted previously or
subsequent to this law, even though penalties seemed especially
to be due to the guilty it would suffice for their removal that the
person had by his own decision condemned the error and embraced
the name of the omnipotent God, even in the midst of his danger.
Never should the aid of religion be wanting when called upon
in the midst of misery. As, therefore, they commanded that their
previous laws for the destruction of sacrilegious minds be put into
execution, so they ordered that those who had chosen the faith
of simple religion, even though by a tardy confession, should not
be considered bound to punishment under those laws. This they
ordered that all might know' that vengeance would not be wanting
as to the illicit desires of men and that the aid of the laws wras
offered to the true worship.70
«8 Cf. C. Th. 16.5.40.7.
«» Cf. C. Th. 16.5.40.8.
to Cf. C. Th. 16.5.41 (Nov. 15, 407).

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Honorius and Theodosius refused to have those hostile to the
Catholic religion in service in their palace.71
The same Emperors repeated the provisions against the Dona­
tists, also called Monteuses, the Manicheans, or I’rise'. Ilians, and
the pagans. They ordered that all those laws be enforced, and
that their buildings as well as those of the Caelicolae, who had
“some new kind of dogma,” be turned over to the churches. The
penalties were to be inflicted both upon confessed Donatists and
upon those who claimed to be Christians but avoided the com­
munion of the Catholics in view of their evil religion.72
Finding that the Donatists and some Jews were disturbing the
sacraments of the Catholic faith and religious services, the Em­
perors ordered them to be punished who attempted such things.73
Officials were also ordered to see to it that no one, whether in
the city or in some secret portion of their territory, held forbidden
meetings, abandoning the Catholic bishop of the church. The places
themselves, where they met, were to be confiscated without any
excuses.74
Any judge guilty of failing to enforce the laws against Donatists
and other heretics, Jews, and pagans was to lose his position and
was to be fined twenty pounds gold. Men of lower rank who knew
of violations of the laws in their cities or territories and kept silent
about them were liable to deportation and confiscation of their
property.75 The right to present petitions to the Emperors was
still denied to those who violated the laws on heretics.76
Montanists, Priscillians, and other heretics were excluded from
government service. If they were of social classes which were
obliged to render the service at their own expense they had to
to perform such services. Since that was a form of taxation they
were not to be freed from it.77
If the officials in charge of handling property which was sup­
posed to be confiscated by the State ever permitted any such
71 Cf.
72 Cf.
73 Cf.
74 Cf.
75 Cf.
7C Cf.
77 Cf.

C. Th. 16.5.42 (Nov. 14, 408).
C. Th. 16.5.43 (Nov. 15, 408 [407]).
C. Th. 16.5.44 (Nov. 24, 408).
C. Th. 16.5.45 (Nov. 27, 408).
C. Th. 16.5.46 (Jan. 15, 409).
C. Th. 16.5.47 (June 26, 409).
C. Th. 16.5.48 (Feb. 21, 410).

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131

property to be kept or turned over to persons not entitled to hold
it, they themselves were liable for it.78
The Donatists apparently claimed to have obtained a rescript
in their favor, for Honorius and Theodosius, in 410, outlawed it
and decreed that they should suffer the penalty of confiscation
and death if they ever again attempted to meet in public.7·1' Those
of “illustrious” rank were fined fifty pounds gold. Those of the
rank of “spectabiles” were fined forty pounds gold. The fine for
those of senatorial rank was thirty pounds gold, for "clarissimi”
it was twenty pounds gold, for priests thirty pounds, for "princi­
pales” twenty, for city officials five, and for businessmen and
ordinary citizens five. If these people were not handed over by
those under whose care they were, the.-e latter were themselves
subject to the same penalty. Wives were bound by the same
penalties as their husbands, d'hose who persisted in their opinions
were to have their property confiscated. Slaves were to be taken
care of by their masters and glebe serfs were to be beaten severely
to make them give up their heresy, unless the master preferred to
pay the penalty himself. The clergy and ministers of the heretics
were to be sent into exile and the churches and property turned
over to the Catholics.80
When some bishops complained that a certain Jovinian was
holding meetings outside the city, the Emperors ordered that
he be seized, scourged and exiled together with his followers and
ministers. He himself was to be sent to an island, while his
followers were to be separated one from another to break up the
conspiracy of superstition. If they tried to meet again they were
to be punished more severely.81
The Donatists were still a problem in 414 and the Emperors
recalled that they were not allowed to make a will or enter into
contracts and, being infames, were excluded from the society of
all good citizens. The places where they had held services were
to be turned over to the Catholic church and their "bishops, ’
“priests,” “leaders,” and “ministers” were to be sent into exile
after their goods were confiscated.82
78 Cf. C. Th. 16.5.50 (March 1, 410).
79 Cf. C. Th. 16.5.51 (Aug. 25, 410).
80 Cf. C. Th. 16.5.52 (Jan. 30, 412).
81 Cf. C. Th. 16.5.53 (March 6, 412 [398?]).
82 Cf. C. Th. 16.5.54 (June 17, 414) ; C. Th. 16.5.54.1.

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Anyone who protected these Donatists was liable to confisca­
tion of his property and the same penalties which were indicted
on the heretics themselves. Confiscation and fines were to he
imposed, no matter whether the culprit was man or woman, an
ordinary individual or a dignitary. Those of high rank were fined
two hundred pounds silver. The fine was to be imposed for
every time the person attended heretical services. After it had
been imposed five times the matter was to be referred to the
Emperors’ "clemency,” that they might take harsher steps against
his property and his status.83
Senators who were Donatists were fined one hundred pounds
silver, priests the same amount, civic leaders fifty, other officials
ten, if they preferred to remain in heresy.84 Lessees who permitted
such gatherings on imperial property were fined an amount equal
to their rent. Lessees from private owners were to be turned over
to the owners by the judges. The owners were to take steps to
correct their lessees or appoint persons to take charge of their
property to see to it that the “divine commands” were observed.
If they failed to do this they were to be fined the amount of rent
which they were accustomed to receive.85
The officials of the various judges who were discovered to be
Donatists were fined thirty pounds silver, and if this happened
five times they were to be whipped and sent into exile.86 Slaves
and glebe serfs were to be punished most severely. If the serfs
continued in their heresy after being whipped they were to be
fined the third part of their “peculium.”^ Whatever was collected
from these people was to be distributed to charity.88
All heretics were warned, in 415, not to hold public gatherings
under penalty of confiscation and death.89 The Montanists were
ordered not to gather and hold meetings. If their clergy, “bishops, ’
“priests,” or “deacons” dared to hold meetings or ordain clergy83«. C. Th. 16.5.54.2;
84 Cf. C. Th. 16.5.54.4.
s* Cf. C. Th. 16.5.54.5;
8« Cf. C. Th. 16.5.54.7.
87 Cf. C. Th. 16.5.54.8.
88 Cf. C. Th. 16.5.54.9.
89 Cf. C. Th. 16.5.56
simply recalls what had
confirms it.

C. Th. 16.5.54.3.
C. Th. 16.5.54.6.

(Aug. 25, 415). C. Th. 16.5.55 (Aug. 30, 414)
previously been decreed against the Donatists and

î

.

THEODOSIUS’ LAWS ON HERETICS

133

men or be ordained clergymen they were to be deported.90 1 hose
who aided them to hold the meetings were liable to have the
house or the land confiscated. If the “procurator” allowed the
meeting without the knowledge of the owner, the former was sent
into exile.91 If the Montanists possessed any buildings these were
to be turned over to the churches of the orthodox sect together
with their endowments, though care was to be taken that property
of private individuals be not seized under the guise of taking
property of the Montanists.92
In that same year the Emperors decreed the confiscation of the
houses which the Eunomian clergv had within the city and in
which they held meetings or repeated baptism.93 They forbade
all other heretics to repeat baptism.94 One who of his own free
will had sought to be baptized again was subject to deportation,95
as were the Eunomian clergy if they held meetings, whether in
Constantinople or in the provinces, in cities or in the territories
around them, or dared to ordain other clerics or be ordained as
such.96 Confirming the previous legislation with regard to these
people the Emperors again forbade them to make wills or gifts
and revoked any privileges in this regard which they might have
obtained in the past, so that they would henceforth be treated on
a par with other heretics with whom they were on a par in
iniquity. Only by intestate succession could they take property.97
As far as meetings of the Eunomians were concerned, the houses
or lands where they took place were to be confiscated if the owner
knowingly permitted them to meet on his property or under his
roof.88 Eunomian clergymen who w’ere discovered to have re­
baptized anyone were immediately to be exiled.99 No member of
the Eunomian sect could hold a government position.1"
Included under the penalties against heretics were also the Manicheans, the Emperors recalled, and the Phrygians who were called
also Pepyzites or Priscillians or some other more secret name, the
Arians, the Macedonians, the Eunomians, the Novatians and the
Sabbatians, and the other heretics.101 By 423 the Emperors were
»®Cf. C. Th. 16.5.57 (Oct. 31,415). !·“ Ci.
« Cf. C. Th. 16.5.57.1.
·■>> Ct.
»2 Cf. C. Th. 16.5.57.2.
Cf.
»3Cf. C. Th. 16.5.58 (Nov. 6,415).
Cf.
MCf. C. Th. 16.5.58.1.
ioo Cf.
8δ Cf. C. Th. 16.5.58.2.
nn Cf.

C. Th. 16.5.58.3.
C. Th. 16.5.58.4.
C. Th. 16.5.58.5.
C. Th. 16.5.58.6.
C. Th. 16.5.58.7.
c. Th. 16.5.59 (Apr. 9, 423).

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getting tired of listing the names of all the heretics,
they men­
tioned the Eunomians, Arians, and Macedonians, and warned them
and all the rest that the laws against heretics were su'd in force.102
While they could not obtain government positions, they were still
obliged to perform whatever civic duties were incumbent upon
them as citizens.103
Theodosius and Valentinian instructed Faustus, ibc Prefect of
Rome, that he was to give the Manicheans and the \iLiihcuhilici
twenty days to leave the city. If they did not join the Church they
were to be exiled a hundred miles away.101
They ordered George, the Proconsul for .Africa, to proceed
against the heretics, schismatics, pagans,10’’ and iJassits, the Count
in charge of Private Affairs, to proceed against the Manicheans
and any sect hostile to the Catholics, driving them out of the
various cities.1011 They directed Florentius, the Prctorian Prefect,
to turn over to the Catholic Church the churches which had been
taken over by the heretics.107 If they ordained any clerics both
the one ordaining and the one ordained were fined ten pounds
gold. If they claimed poverty the fine was to be levied upon the
whole group of clergy and upon their endowments.103 They then
indicated to him the manner of proceeding against the various
groups of heretics.108
They further forbade the heretics to induce either freemen or
their own slaves who had been baptized in orthodoxy to be baptized
again in their sect or to prevent them from following the Catholic
religion. Those who violated this law were to be fined ten pounds
gold, exiled, and deprived of capacity to make a will or a gift.
Likewise if a freeman allowed himself to be baptized agam or did
not report it, he was punished in the same way.11" If any judge
failed to punish those who were reported to him he was to be
punished as they should have been.111
102 Cf.
103 Cf.
104 Cf.
105 Cf.
we Cf.
107 Cf.
io» Cf.
loo Cf.
no Cf.
in Cf.

C. Th. 16.5.60 (June 8, 423).
C. Th. 16.5.61 (Aug. 8, 423).
C. Th. 16.5.62 (July 17 [Aug. 6], 425).
C. Th. 16.5.63 (July 6, or Aug. 4, 425).
C. Th. 16.5.64 (Aug. 6, 425).
C. Th. 16.5.65 (May 30, 428).
C. Th. 16.5.65.1.
supra, p. 117.
C. Th. 16.5.65.4.
C. Th. 16.5.65.5.

THEODOSIUS' LAWS ON HERETICS

Thus did the Roman Emperors struggle for a century to secure
unity on matters of religion within their realm. Having decided to
accept the Catholic Church as the official religious body of the
Empire in place of the pagan religion which they had formerly
embraced, they strove with all the power and all the techniques
at the command of a totalitarian police-state to force all men into
the pattern which they themselves had adopted, disregarding the
fact that Christian Faith is a gift from God, that one comes to
God through Christ,112 and that Christians are called by God unto
the fellowship of His Son Jesus Christ.113 Their inquisitions,
fines, confiscations, exiles, scourgings, capital punishments, their
investigations of the orthodoxy of government servants, their
threats against officials who did not do their duty, served, perhaps,
to keep the heretics under cover to a certain extent, or to make
them pretend to be Catholics, but at the end of a century of this
repressive action we see the names of the same sects and of new
ones repeated again and again. It seems questionable, then, how
effective legal machinery is to secure by its harshly repressive
measures that which the Church was established to accomplish
by the preaching of God’s word in all charity. Since they were
not heads of the Church, though they had been heads of the pagan
religion, the Emperors could not do the work of the Church. In
fact, by their harshness they may have alienated minds which
otherwise might have been drawn to the teachings of the Gospel.
Had they merely prevented disturbances of the peace of the Church
and not tried to drive men into it, it might have been better
able to win them to the cause of Christ.114
Cujus regio, illius et religio is, apparently, an ancient concept.
The ideas of the Roman Emperors did not die with them, but
were adopted along with their legal system in many other coun­
tries in which the civil rulers undertook to exercise an authority
in religious matters which properly7 belonged to the Head of the
Church.
The final law7 in Title V shows Theodosius and Valentinian still
doing battle with the heretics. This time it was Nestorius, recently
condemned at Ephesus, who was the target for their attack. His
followers were forbidden to use the name “Christian,” and were,
”2 Cf. John 14:6.
Π3 Cf. I Cor. 1:9.
114 Consider St. Ambrose’s position as to this. Martin, The Independence
of St. Ambrose, AER, CXXII. 4 (April 1950), 289 ff.

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by imperial decree, to be known as “Simonians.” The books or
Nestorius were to be burned. They were not to be kept, read,
or copied by anyone, but were to be hunted down sedulously and
publicly burned. These heretics were not to hold meetings, and
in disputes about religion they were to be spoken of as “Simon­
ians.” Penalty for violation of the law as to meetings was confisca­
tion, as usual, of the property.115
Thomas Owen Martin

The Catholic University of America
Washington, D. C.
C. Th. 16.5.66 (Aug. 3, 435).
Fifty Years Ago

In the August, 1900, issue of The American Ecclesiastical Review
the leading article, by Fr. H. Delehaye, S.J., is a discussion of the
authenticity and the historical value of the writing ascribed to Simon
Metaphrastes, a writer of the tenth century. Fr. Delehaye concludes :
“In a general way it may be said—leaving aside any exceptional cases
that might be brought forward—that Metaphrastes is not the author,
but the arranger of the anonymous Lives of the collections that bear
his name. His statements have no other authority than that of the
sources whence they are drawn.” . . . Fr. Aeneas Goodwine, of The
Catholic University, contributes an article on early Maccabean war
songs. . . . Under the title “Sermons as a Medium of Systematic Teach­
ing,” Fr. B. Feeney recommends that the priest preach what the Third
Council of Baltimore calls “a connected and thorough presentation of
Christian doctrine, either in the order of the Roman Catechism or that
of the catechism of the diocese, or of any approved author.” . . . Mr.
Arthur Spencer calls for an organized study of plainsong and of medi­
aeval music. . . . An anonymous article describes a recent inci­
dent at Harvard College. The President of that institution, Dr.
Eliot, refused to admit to the Harvard Law School the graduates of
any Jesuit college except Georgetown. The writer of the article ex­
amines the reasons alleged for this discrimination, and points out that
they lack objective cogency. ... In the Conference section a questioner
asks whether a woman whose first marriage, at which she had received
the nuptial blessing, has been dissolved by the Church on the grounds
of non-consummation, could receive the blessing again on the occasion
of her second marriage. The reply, based on the letter of the rubrics,
is negative. . . . The anonymous article on recent Bible study, is con­
cerned, for the greater part, with non-Catholic scriptural studies.
F. J. C.

THE CHURCH AND SPECIAL EDUCATION:
PRESENT AND FUTURE
Today most of our Catholic children who are either blind or
deaf have to be educated in State schools, where they are unable
to get adequate instruction in their faith, and where they can
attend Mass or receive the Sacraments only with great difficulty.
In the entire country there are only three Catholic schools for
the blind with ninety-nine pupils and eleven Catholic schools lor
the deaf with 1338 pupils—all east of the Mississippi, in the fifty­
eight residential State schools for the blind we find six thousand
pupils, while 18,316 pupils are cared for in the 204 residential and
day schools for the deaf.
The trend is away from the institutional form of life and toward
the establishment of day schools for our blind and deaf children.
In a day school the blind or deaf child associates with normal chil­
dren and enjoys the safeguards of the home environment. Un­
fortunately the parochial school system has not kept abreast of
the times in this regard, and there are no braille classes in our
parochial school system. At present 532 children attend twentyfive city day school braille classes.
PAROCHIAL SCHOOLS NEED SIGHT SAVING CLASSES

Over 4,500,000 children have some sort of visual defect, and
only a fraction of these cases are being found and treated. Twenty
per cent of the children in elementary schools have eye difficulties
and nineteen per cent can be helped. If children with eye difficul­
ties use the same materials as normal children their eye conditions
grow worse. Better care is needed for our parochial school chil­
dren with impaired vision. The White House Conference on Child
Health and Protection reported “The first sight saving class in a
parochial school was established in Grand Rapids, Michigan, the
second in St. Louis, Missouri. With the very large number of
children attending parochial schools throughout the United States,
it is hardly necessary to call attention to the great need for other
parochial schools to follow the example so well set elsewhere.”1
1 White House Conference on Child Health and Protection. Special Edu­
cation 171 (New York and London: Century, 1931).
137