Beruflich Dokumente
Kultur Dokumente
Hillner, Julia.
JULIA HILLNER
In the period between 542 and 556 c.e. Justinian issued a number of laws
that prescribed monastic imprisonment as punishment for both higher clergy
and members of the lay elite. Through this legislation, the emperor introduced
into Roman law the unprecedented concept of corrective imprisonment as a
penalty. Starting from a detailed analysis of the laws, this article demonstrates
how the emperor’s innovations built upon both traditional legal practices and
on more recent ecclesiastical and monastic ideals. With monastic imprison-
ment, Justinian adapted the Roman custom of domestic internment as a
substitute for the penalty of exile for elite criminals. The reason for using
monasteries, rather than private households, to provide this public service of
prisoner internment may, on the one hand, have been practical. Ideals of hos-
pitality within a Christian monastic context and imperial influence especially
over Constantinopolitan monasteries may have encouraged Justinian to believe
that monasteries were far less likely to avoid an obligation to host an exile
convict than private households. On the other hand, the emperor also saw mo-
nastic imprisonment as offering additional, historically unprecedented benefits
over traditional domestic internment. As the emperor tried to make sure in his
own legislation on monastic life, monasteries ideally provided an institutional
and architectural framework, as well as a guiding penitential ideology based
on an ideal of correction, which not only offered the opportunity for enhanced
supervision, but also for spiritual correction of the criminal. Justinian’s innova-
tions may have been inspired by the established use of monasteries as peniten-
tial space for failing clerics in ecclesiastical legislation. However, his specific
aim in using monasteries as places of penance, for which an ecclesiastical
precedent does not exist, seems to have been to police the sexual promiscuity
which he discerned among the married laity at his own court.
I would like to thank Gillian Clark (Bristol), Kate Cooper (Manchester), Christy
Constantakopolou (Birkbeck), Paul Fouracre (Manchester), Philip Rousseau (The
Catholic University of America), Martin Ryan (Manchester), Jamie Wood (Manches-
ter), and the anonymous reader of JECS for their comments and advice. I am espe-
cially grateful to the editor of this volume, Kristina Sessa (Ohio State University) for
her outstanding help and encouragement. All remaining errors are mine. Translations
are my own, unless otherwise stated.
Journal of Early Christian Studies 15:2, 205–237 © 2007 The Johns Hopkins University Press
206 JOURNAL OF EARLY CHRISTIAN STUDIES
duced a novel penalty, but, more importantly, also the idea of reform as
a goal of this penalty.
In a now classic 1974 study, Francesco Goria explored the forced monas-
ticism of people who were principally alien to the monastic lifestyle dur-
ing the reign of Justinian. He investigated the problem of their integration
into the monastic routine and concluded that Justinian did not intend the
guilty party to dwell in a special environment within the monastery,4 but
was required to enter the monastic status properly, probably after a period
comparable to the novitiate.5
While Goria considered monastic imprisonment and its implications
from the prisoner’s point of view, I shall explore the topic from a differ-
ent angle: the perspective of the lawgiver himself, Justinian, with particu-
lar attention given to how monastic imprisonment potentially related to
the emperor’s broader interests in ordering late Roman Christian society.
Throughout Roman imperial history, private houses were frequently used
to host prisoners as a substitute for the penalty of exile. This article will
establish to what extent Justinian viewed monastic imprisonment as con-
tinuing this service provided by households owned by lay individuals,6
and to what extent he saw it as offering additional, historically unprec-
edented benefits, namely the reform of certain types of elite criminals. It
will reconstruct Justinian’s rationale behind this legislation on the basis
of an analysis of the legislation itself, with some use of literary texts, most
notably Procopius of Caesarea’s Buildings and Secret History.7
see now A. Lovato, Il carcere nel diritto penale romano dai Severi a Giustiniano
(Bari: Cacucci, 1994), 77–168.
4. As some scholars have believed, see, for example, P. Bonfante, Corso di diritto
romano 1 (Rome: Sampaolesi, 1925), 262–63.
5. F. Goria, “La Nov. 134,10; 12 di Giustiniano e l’assunzione coattiva dell’abito
monastico,” in Studi in onore di Giuseppe Grosso 6 (Torino: G. Giappichelli, 1974),
55–76. As stated in his title, Goria focussed almost exclusively on one particular Jus-
tinianic law, Nov 134.10 (556 c.e.) (ed. R. Schoell and G. Kroll, CIC 3 [Berlin: Weid
mann, 1972], 685–86], which lays out the punishments for an adulterous woman.
6. The differentiation of “monastic” and “lay” households is somewhat difficult,
as, at least in the fourth century, the lay household was the site for many forms of
asceticism, especially those practiced by the aristocratic elite; see P. Rousseau, “The
Pious Household and the Virgin Chorus: Reflections on Gregory of Nyssa’s Life of
Macrina,” JECS 13 (2005): 166, 186 and passim. Yet by the sixth century, we can
presume that the concept of the ascetic household of the pious elite, especially in the
east, had been largely supplanted by that of the ordered monastic community. See
P. Rousseau, “Monasticism,” Cambridge Ancient History 14 (Cambridge: Cambridge
University Press, 2000), 756.
7. While of course it can be problematic to try to use Roman legal sources as evi-
dence for sociological reality, we can certainly use them to understand how lawmakers
208 JOURNAL OF EARLY CHRISTIAN STUDIES
THE LEGISLATION
10. The administrators in question were the so-called oikonomoi, which the Coun-
cil of Chalcedon in 451 c.e. had prescribed each bishop’s church to have. The oiko-
nomos was to be selected from the clergy of the bishop’s church, Chalcedon can. 26
(NPNF 14:285).
11. K. Noethlichs, “Das Kloster als ‚Strafanstalt‘ im kirchlichen und weltlichen
Recht der Spätantike,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, kan. Abt.,
80 (1994): 39, citing for example Nov 97.3 (539 c.e.) (CIC 3.472–73). Justinian’s
interest in the legal status of women has often been noted by his biographers as one
of the most striking features of his legislation; see R. Browning, Justinian and Theo-
dora (London: Weidenfeld and Nicolson, 1971), 61; J. Moorhead, Justinian (London:
Longman, 1994), 36–37; Evans, Age of Justinian, 209–10.
12. The reluctance to imprison women is apparent throughout the history of Roman
law; see J.-U. Krause, Gefängnisse im Römischen Reich, Heidelberger Althistorische
Beiträge und Epigraphische Studien 23 (Stuttgart: F. Steiner, 1996), 171–78.
HILLNER/MONASTIC IMPRISONMENT 211
DOMESTIC IMPRISONMENT AS AN
ALTERNATIVE TO EXILE
18. The wife of adultery, magic, or procuring, the husband of manslaughter, magic,
or tomb-robbing: CTh 3.16.1 (331 c.e.) (Mommsen and Meyer, 155–56).
19. CTh 16.2.35 (400/405 c.e.) (Mommsen and Meyer, 846–87).
20. Dig 48.22.9 (Ulpian) and Dig 48.22.10 (Marcianus) (The Digest of Justin-
ian 4.861).
21. Iunius Gallio had rewarded the praetorian guard with special seats in the the-
atre without consulting the emperor: Tac. ann. 6.3 (LCL 312:156–58); Cass. Dio
58.18.4 (LCL 175:232), who tells us that Iunius Gallio was interned even before he
left for Lesbos.
HILLNER/MONASTIC IMPRISONMENT 213
22. Cass. Dio 58.3.4–5 (LCL 175:192); see Krause, Gefängnisse, 187; P. Pavón
Torrejón, La cárcel y el encarcelamiento en el mundo romano, Anejos de archivo
español de arqueología 27 (Madrid: CSIC, 2003), 204.
23. Mommsen, Strafrecht, 973 n. 3.
24. In the same way, imprisonment in public prisons could become associated
with punishment in the public discourse even if not officially expressed in a sentence,
as, due to slow legal procedures, many defendants and convicts never did experi-
ence their trials or executions, but lingered in the prison for long times: see Krause,
Gefängnisse, 83–91.
25. Cass. Dio 58.3.4 (LCL 175:192).
26. Cass. Dio 78.11.1a (LCL 177:300).
27. Mommsen, Strafrecht, 968–69; see, for example, CTh 1.5.3 (331 c.e.) (Momm
sen and Meyer, 35–36): if a criminal patrimonio circumfluit, he should be relegated
to an island for two years; quod si agrestis vitae sit aut etiam egentis he should be
sent to the mines for two years. For the penalty of forced labor as an equivalent
of exile at the lower end of the social scale see F. Millar, “Condemnation to Hard
Labour in the Roman Empire, from the Julio-Claudians to Constantine,” BSR 52
(1984): 128–47.
214 JOURNAL OF EARLY CHRISTIAN STUDIES
The story is very clearly an allusion to Nov 117.9.4 (542 c.e.) (CIC 3.559),
a law from the same series of legislation as Nov 117.13 on unilateral
divorce. Among the few legitimate reasons for divorce, Nov 117.9.4 stated
that a wife may divorce her husband were he to accuse her of adultery
without sufficient proof. The wife would receive financial compensation
and, in addition, could initiate a counter-suit for false accusation. The hus-
band would be punished in the same way that the wife would have been
if the offense had been proven. At the time of the issue of the Novel in
542 c.e., the penalty for adulterous women was death, although it is not
certain how often this extreme penalty was applied at elite level.
Nov 117.9, therefore, represents part of the wider attempt of the impe-
rial couple to monitor and manipulate the moral behavior of their mar-
ried entourage that is also known from other contexts.35 While Procopius
claimed that the aim of the law was Theodora’s wish to cover up the
immoral behavior of her matrons, it is more probable that what Justin-
ian and Theodora were after was equality of men and women before the
law, without, of course, condoning adultery. Procopius’s passage simply
reveals the historian’s traditional Roman fear of female assertiveness aris-
ing from this.36 His story about the behavior of women and men at the
imperial court in any case provides a context for the promulgation of Nov
117.9, and, we may suspect, an analogy also for the contemporary law
Nov 117.13 on monastic confinement of women who divorced unilater-
ally “to live debauched lives.” It is not surprising, therefore, that Justinian
in this law laid down a penalty that took into account the elite status of
delinquents, monastic confinement as a substitution for exile.
During the early and high empire, the government’s reasons for substitut-
ing exile with house arrest may have been practical. Although a sentence
of exile could be issued simply as an order to vacate the city or the prov-
ince (depending on a magistrate’s area of jurisdiction37), it was typically
linked to forced domicile on an island (relegatio/deportatio in insulam).38
common place of exile throughout the empire; see, e.g., Dig 48.22.7 (Ulpian) (The
Digest of Justinian 4, 859–61), CTh 1.5.3 (331) (Mommsen and Meyer, 35–36); and
F. Lätsch, Insularität und Gesellschaft in der Antike (Stuttgart: Franz Steiner, 2005),
218–21. Plutarch, in his On Exile dedicated a large part to exile on islands in his
discussion of actual places of exile, although the exiled addressee of the work, com-
monly identified with Menemachus of Sardis, could travel freely: Mor. 602b–604a
(LCL 405:534–48), see C. Constantakopolou, “The Dance of the Islands: Perceptions
of Insularity in Classical Greece” (PhD diss., Oxford University, 2002), 139.
39. Cass. Dio 56.27.2–3 (LCL 175:60); Garnsey, Social Status, 112 n. 5.
40. Dig 48.22.7.1 (Ulpian) (The Digest of Justinian 4, 859–60); Krause, Gefäng
nisse, 254.
41. Cass. Dio 58.3.5 (LCL 175:192).
42. A. Wallace-Hadrill, “The Social Structure of the Roman House,” BSR 56
(1988): 81, and Houses and Society in Pompeii and Herculaneum (Princeton: Prince
ton University Press, 1994), 44–45; S. Ellis, Roman Housing (London: Duckworth,
2000), 169.
43. See K. Cooper, “Behind Closed Doors: Visibility, Exposure, and Power in the
Roman Household” (forthcoming, Past and Present); R. Laurence, “Space and Text,”
in R. Laurence and A. Wallace-Hadrill, ed., Domestic Space in the Roman World:
Pompei and Beyond (Portsmouth, RI: Journal of Roman Archaeology, 1997), 7–14.
218 JOURNAL OF EARLY CHRISTIAN STUDIES
been a privilege.44 In Gallus’s case, in turn, who did not have any power
over his, or anybody else’s, movements, the use of a separate room meant
humiliation. Furthermore, in the characteristic material outline of the
Roman house separate rooms opened onto the central courtyard, which
allowed for panoptic surveillance at least of those users of separate rooms
who did not have control over their visibility.45
Domestic imprisonment had been a viable substitution for exile long
before Justinian introduced monastic internment. However, the question
of why Justinian made yet another substitution—monasteries for private
households—demands further exploration and explanation. Indeed, this
is an especially interesting substitution given the fact that Justinian some-
times used private households for governmental purposes other than for the
administration of punishment. His law Nov 134.9.1 (CIC 3.684), which
ordered to hold women awaiting trial in monasteries, that is, for the pur-
pose of detention, also offered the option to have them guarded in female
households instead.46 The reasons for the substitution of the monastery
for the lay household where punishment, rather than simple detention,
was concerned, I argue, were twofold. First, certain features of domestic
imprisonment could be significantly enhanced in a monastic community,
notably the facts that it was an easier penalty to administer than exile and
that the household’s material organization provided a well-defined system
of control and surveillance. Second, and more importantly, monasteries
enabled Justinian to incorporate an added dimension to the punishment,
the possibility of the convict’s correction. It is doubtful, therefore, that
Justinian’s laws were solely intended to relieve his elite criminals from the
burden of a harsh punishment.
44. See Vitruvius’s point on the control of access to the more private rooms in a
Roman house in On Architecture, 6.5.1: Namque ex his quae propria [loca patribus
familiarum] sunt, in ea non est potestas omnibus intro eundi nisi invitatis (“nobody
has the power to enter the rooms that belong to the father of the house unless they
have been invited”).
45. A. Riggsby, “‘Public’ and ‘Private’ in Roman Culture: The Case of the Cubicu-
lum,” JRA 10 (1997): 51.
46. Nov 134.9.1 (CIC 3.684): efi d¢ barÊtaton eÍreye¤h tÚ ¶gkxlhma §fÉ⁄
kathgore›tai, efiw monastÆrion µ efiw éskhtÆrion §mbãllesyai, µ gunaij‹ parad¤dosyai
aÈtÆn diÉœn dunatÚn svfrÒnvw ka‹ §leuyer¤vw aÈtØn fulaky∞nai, (…).
HILLNER/MONASTIC IMPRISONMENT 219
Monastic Imprisonment:
Power, Punishment, and Penance
47. It is usually assumed that visitors were a common feature in the ancient house-
hold, so much so that scholars estimating household size have come to distinguish
between household (actual family and slaves) and housefuls (family, slaves, visitors,
lodgers, etc.); see Wallace-Hadrill, Houses and Society, 100–117.
48. For religious sanctions for the rejection of hospitality in Roman mentality, see
L. J. Bolchazy, Hospitality in Early Rome: Livy’s Concept of Its Humanizing Force
(Chicago: Ares, 1977), 26.
49. Even where there was a hierarchical distinction, guests usually came from
communities subject to Roman rule, see J. Nicols, “Hospitium and Political Friend-
ship in the Late Republic,” in Aspects of Friendship in the Graeco-Roman World,
ed. M. Peachin (Portsmouth: Journal of Roman Archaeology, 2001), 101. For the
institution of Roman hospitality see also Th. Mommsen, “Das römische Gastrecht,”
in Römische Forschungen 1 (Berlin: Weidmann, 1864), 326–54.
50. Cicero considered the reception of distinguished and politically influential guests
as valde decorum (Cic. off. 2.18.64 [LCL 30:236]; for the aspect of social prestige
and mutual benefit see also Bolchazy, Hospitality, 33–34; O. Hiltbrunner, Gastfreund-
schaft in der Antike und im frühen Christentum (Darmstadt: Wissenschaftliche Buch-
gesellschaft, 2005), 157.
51. Nicols, “Hospitium,” 107.
52. At all times, Roman government requested its subjects to house Roman officials
and military people, see O. Hiltbrunner, D. Gorce, and H. Wehr, “Gastfreundschaft,”
RAC 8 (1972): 1100–1101; Hiltbrunner, Gastfreundschaft, 101–3. In late antiquity,
we know of this enforced hospitality from a number of laws, from which emerges a
220 JOURNAL OF EARLY CHRISTIAN STUDIES
65. John Chrys. In Heliam et viduam 9 (PG 51:346); Augustine preached to grant
hospitality to opponents, such as the Donatist delegation who came to Carthage in
411: Aug. sermo 357.5 (PL 39:1585–86).
66. Didascalia apostolorum, versio Latina 5.2–4 (ed. F. X. Funk [Paderborn: Schoe-
ningh, 1905], 238–42).
67. Jerome, Against Rufinus 3.17 (SC 303:258–60): solos haereticos non recipimus,
quos vos solos recipitis; ep. 130.14 (to Demetrias) (CSEL 56:193).
68. For confiscation of property in connection with exile see Mommsen, Strafrecht,
1009–11.
69. Noethlichs, “Kloster als ‘Strafanstalt’,” 21–22 and n. 7.
70. Nov 133 pr. (CIC 3.666): OÄ monÆrhw b¤ow kai ≤ katÉaÈtÚn yevr¤a prçgmã
§stin flerÚn ka‹ énãgon aÈtÒyen taw cuxåw efiw yeÒn, ka‹ oÈ mÒnon »feloËn aÈtouw toÁw
efiw toËto pariÒntaw, éllå ka‹ to›w êlloiw ëpasi dia t∞w aÈtoË kayarÒthtow ka‹ t∞w
prow yeon flkete¤aw parexÒmenon tØn pr°pousan »f°leian; Nov 133.5 (CIC 3.674): efi
går §ke›noi kayara›w ta›w xers‹ ka‹ gumna›w ta›w cuxa›w tåw Íp¢r toË politeÊmatow
eÈxåw prosãgoien t“ ye“, prÒdhlon …w ka‹ tå strateÊmata ßj ei kal«w ka‹ afl pÒleiw
eÈstayÆsousi (…) ka‹ ≤ g∞ te ≤m›n o‡sei karpoÁw ka‹ ≤ yãlatta tå ofike›a d≈sei, t∞w
§ke¤nvn eÈx∞w tØn eÈm°neian toË yeoË prÚw ëpasan tØn polite¤an sunagoÊshw; on this
understanding of the purpose of monasteries see also Moorhead, Justinian, 118–19;
C. Humfress, “Law and Legal Practice in the Age of Justinian,” in The Cambridge
HILLNER/MONASTIC IMPRISONMENT 223
believed that monasteries’ legal status in the sixth century left them little
room to express any concerns about imperial expectations to host crimi-
nals. Under Justinian, monasteries, at least officially, were legally dependent
on the bishop’s church and the bishop was seen almost as a government
official, who, consequently, would enforce imperial demands of mon-
asteries.71 The dependency of monasteries on the bishop had originally
been laid down—on the instigation of emperor Marcian—by the council
of Chalcedon in 451 c.e.,72 and the canons were reiterated and expanded
by Justinian himself in 535 c.e. and 539 c.e. (Nov 5 and 133 respectively
[CIC 3.28–35; 666–76]).73 In these laws, Justinian stressed the authority
of the bishop in numerous monastic activities: foundation, building (of the
monastery itself?), alienation of property, confirmation of abbot election,
and most importantly, exercise of secular and ecclesiastical legal rules. The
bishop, in this respect, was seen as a mediator between monasteries and
secular authorities.74 Justinian’s laws calling for monastic imprisonment
accordingly stressed collaboration between the monastery, the secular
authority, and the local bishop. For example, Nov 117.13 (CIC 3.563)
orders an illegally divorced woman to be handed over to the local bishop,
who was to place her in the appropriate monastery. We can imagine that
this protocol involving the bishop was also assumed in the subsequent laws
which extended this punishment to illegally divorced men and to couples
divorcing by mutual consent (Nov 127.4; 134.11 [CIC 3.635–36; 686–87]).
In the case of clerical misconduct, the bishop had to check on the behavior
of clerics who had gambled and had been sent to the monastery in order
to restore them to their ministry (Nov 123.20 [CIC 3.609]).
Yet it may be the case that Justinian, in his belief in the smooth collabo-
ration between emperor, bishop, and monastery, was influenced mostly by
the situation in his imperial capital. Outside Constantinople, and especially
in ecclesiastical areas loyal to the Monophysite cause, imperial authority on
lished in 555 c.e., Procopius reported a curious incident which sheds light
on the imperial couple’s influence on the monastic landscape of Constan-
tinople. Procopius related their attempt to rescue the prostitutes of their
imperial city of Constantinople by sending them into a monastery that had
been purposely founded to reform them.78 This passage records a remark-
able involvement of the imperial couple in the founding and, it seems, in
the running of monasteries, which could be used for the rulers’ political
or social agenda. We can assume that such imperial monasteries had less
choice of refusing to comply with imperial wishes than other monaster-
ies. In fact, most occurrences of monastic confinement in later Byzantine
history took place in monasteries that were either imperially founded or
enjoyed imperial patronage.79
80. While one of the purposes of Justinian’s most famous foundation outside Con-
stantinople, the monastery on Mount Sinai later dedicated to St. Catherine, seems to
have been to turn a loose congregation of hermits into a spatially ordered commu-
nity, only the original walls and the church survive, which does not allow any conclu-
sions about the layout of the monastery; see G. H. Forsyth, “The Monastery of St.
Catherine at Mount Sinai: The Church and Fortress of Justinian,” DOP 22 (1968):
1–19. Y. Hirschfeld, The Judean Desert Monasteries in the Byzantine Period (Lon-
don/New Haven: Yale University Press, 1992), 33 and n. 31 suggests that Justinian’s
prescription may have influenced the architectural design of some monasteries in
sixth-century Palestine and Syria, which feature communal dormitories, refectories,
and work spaces.
81. John of Ephesus, Lives of the Eastern Saints, 47 (PO 18:678).
82. See Kristina Sessa’s contribution to this volume.
HILLNER/MONASTIC IMPRISONMENT 227
and chastity, (…) and [that they] may only reflect upon what is good.”83
For Justinian the constant visibility of members in a monastic commu-
nity to each other therefore offered the option for penance and correction
beyond simply control and deterrence. This reason for life in constant
company recalls Basil of Caesarea’s view of the coenobium. The spiritual
development of any monk in Basil’s eyes was assured by his correction
and guidance by the wider monastic community. In his Shorter Rule 20,
for example, Basil suggested that those brethren who have sinned or are in
danger of sinning ought to be closely watched and cared for.84 His defense
of the coenobitic lifestyle (as opposed to a solitary life) in Longer Rule
7 is based on the advantage that monks could correct each other when
needed.85 In fact, it has been argued that for Basil the very function of
the ascetic community was its program of consultation, encouragement,
advice, and correction.86
In Justinian’s own words the monastic life in this way ultimately puri-
fied a person and removed all human blemishes from him or her.87 That
Justinian was guided by this belief also where criminals sent to monaster-
ies were concerned becomes apparent in Procopius’s anecdote about his
and Theodora’s monastery for rescued prostitutes. In Buildings, Procopius
reported that the monastery was called “Repentance” (Metãnoia), and
that the prostitutes were sent there “so that there through the occupation
which their minds would have with the worship of God and with religion
they might be able to cleanse away the sins of their lives in the brothel.”88
Thus Procopius described the intention of the imperial couple to force a
monastic lifestyle onto these women as their desire to give them an oppor-
tunity to repent and to reform their lives.
83. Nov 5.3 (CIC 3.31): Àste mãrturaw t∞w éllÆlvn g¤nesyai kosmiÒthtÒw te ka‹
svfrosÊnhw, ka‹ mhd¢ tÚn Ïpnon aÈtÚn =ñyumon ßxein, éllå melet«nta tØn eÈkosm¤an
diå tØn t«n Ùcom°nvn §pit¤mhsin.
84. Basil, Shorter Rule 20 (PG 31:1096): “those who are known to be in sin must
be more closely watched” (ToÁw d¢ §n émart¤aiw §jetasy°ntaw ka‹ pl°on ékribeÊesyai
xrÆ). See also Shorter Rule 19 (PG 31:1096).
85. Basil, Longer Rule 7 (PG 31:929).
86. Rousseau, Basil, 219.
87. Nov 5 pr. (CIC 3.28): ÑO §n éskÆsei monaxikª B¤ow oÏtvw §st‹ semnÒw, oÏtvw
ofikeioËn o‰de ye“ tÚn efiw toËto §rxÒmenon ênyrvpon, Àste pãnta m¢n ényr≈pinon aÈtoË
sp›lon épojÊein, kayarÚn d¢ épofa¤nein ka‹ t∞ logik∞ pr°ponta fÊsei ka‹ tå pollå
katå noËn §nergoËnta ka‹ t«n ényrvp¤nvn front¤dvn Íp°rteron.
88. Procopius, Buildings, 1.9.8 (LCL 343:76): §fÉ⁄ tª §ntaËya per¤ te tÚn yeÚn
ka‹ tØn eÈs°beian ésxol¤a genhsom°n˙ perikay∞rai tåw èmartãdaw dunata‹ e‰en t∞w
§n mastrope¤ƒ dia¤thw.
228 JOURNAL OF EARLY CHRISTIAN STUDIES
(probably via the Rufinus translation of Basil’s rules) the rule of Benedict
in the sixth-century west.95 In certain respects, therefore, Justinian’s and
Theodora’s choice of metanoia as a name for a monastery could even be
called conventional.96
Less conventional, perhaps, was their belief that criminals could benefit
from their involuntary membership in a monastic community. To be sure,
late antique Christian authorities, especially when discussing the death
penalty, pointed at the reformatory function of punishment. Ambrose, for
example, stated that the death penalty should be discarded as it foreclosed
upon any hope of repentance and improvement.97 In two of the laws pre-
scribing monastic imprisonment for clerics, it is clearly spelled out that
Justinian took on board this idea of punishment as reform. In the case of
gambling clerics, the period in the monastery is explicitly described as a
period of penance (metãnoia). The bishop was to check on the success of
this penance and after three years, or even earlier, the cleric was to return
to his office.98 In the case of deposed bishops trying to return to their sees,
they were placed in monasteries in order to “correct” (dioryÒein) their
crimes committed while holding office.99
In the case of clerics, there is evidence that Justinian was not the first to
apply monastic imprisonment as a form of penance. Only a few decades
before Justinian’s legislation, the council of Agde in 506 c.e. declared that if
a bishop, priest, or deacon committed a capital crime, forged a document,
or gave false testimony, he should be deposed and sent to a monastery.
The council of Epaone in 517 c.e. classed the giving of false testimony as
a capital crime and declared that presbyters and deacons who committed
a capital crime should be sent to a monastery for life. In fact, the use of
95. Rule of Benedict 49 (SC 181:605): omni tempore vita monachi quadragesimae
debet observationem habere.
96. In fact, we know of another eastern monastery which featured this name. As
early as the beginning of the fifth century, Jerome reported a monastery called Meta-
noia in Alexandria, which continued to exist in the sixth. Jerome, Reg. S. Pachomii,
praef. (PL 23:65); the monastery is also mentioned in sixth-century papyri (P. Cair.
Maspero 67.286; P. Flor. 298.54).
97. Ambrose, ep. 25.8 (CSEL 82/1:176); see also Aug. serm. 13.8 (CC 41:182);
ep. 100.1 (CSEL 34/2:535); on Christian ideas of punishment and their influence on
secular legislation in late antiquity see J. Harries, Law and Empire in Late Antiquity
(Cambridge: Cambridge University Press, 1999), 146.
98. Nov 123.10.1 (CIC 3.603): efi d¢ §n t“ m°sƒ xrÒnƒ de¤jei éj¤an toË fid¤ou
pta¤smatow metãnoian, êdeian e‰nai t“ flere› Ífɢn t°taktai ka‹ §lattoËn tÚn xrÒnon
ka‹ toËton pãlin tª fid¤& épodidÒnai Íphres¤&.
99. Nov 123.11.2 (546) (CIC 3.604): (…) ·na ëper §n tª flervsÊn˙ ¥marte diãgvn
§n t“ monasthr¤ƒ diory≈shtai.
230 JOURNAL OF EARLY CHRISTIAN STUDIES
100. Agde (506 c.e.) can. 50 (CCL 148); Epaone (517 c.e.) can. 22 (SC 353:112).
The vita of Innocent in the Liber pontificalis mentions that this Roman bishop sent
heretics to monasteries, see R. Davis, The Book of Pontiffs (Liverpool: Liverpool Uni-
versity Press, 1989), 31; and see Jerome, ep. 147 (CSEL 56:312–28), where Jerome
advises a failing deacon to do penance in a monastery.
101. For the equation of monastic state and penitential status in sixth-century
western canonical legislation see M. De Jong, “Power and Humility in Carolingian
Society: The Public Penance of Lois the Pious,” Early Medieval Europe 1 (1992): 43,
and De Jong, “What Was Public,” 871.
102. There is also a considerable difference between the ecclesiastical and Justinian’s
view on the function of this penance: in the canons, clerics were deposed and sent to
the monastery for life, while Justinian envisaged their return to the ministry. On the
features of ecclesiastical penance see B. Poschmann, Die abendländische Kirchenbusse
im Ausgang des christlichen Altertums (Munich: Kösel und Pustet, 1928), 172–203;
R. Mortimer, The Origins of Private Penance in the Western Church, (Oxford: Clar-
endon 1939), 155; J. Gaudemet, L’Eglise dans l’empire romain (IV–V siècle) (Paris:
Sirey, 1958), 85, 679–81; De Jong, “What Was Public,” 873.
103. Gennadius of Marseille, On Ecclesiastical Doctrine 53 (PL 58:994); see Mor-
timer, The Origins, 167; De Jong, “What Was Public,” 871.
104. Procopius, Secret History 17.5 (LCL 290:199): ÉAllå ka‹ Íp¢r èmartãdvn §w
tÚ s«ma kolãseiw tª Yeod≈ra §pinoe›n §pimel¢w ∑n (…)
HILLNER/MONASTIC IMPRISONMENT 231
tocratic widows for refusing to remarry and for living “unchaste lives.”
Theodora ultimately forced them to marry although they had fled to the
Church of St. Sophia.105 This anxiety about sexually immoral behavior
after marriage recalls the preamble of Nov 117.13 (542) (CIC 3.562–64)
on monastic imprisonment for divorcees, which linked the legislation to
certain women who were pursuing divorce in order to live “debauched
lives.”106 There is reason to believe, therefore, that the imperial couple’s
interest in policing prostitution, as well as unchaste behavior within and
after marriage, with the prescription of monastic penance reflects their
belief that all were expressions of sexual promiscuity.
This catalogue of adultery, divorce, and prostitution, for which Justinian
envisaged monastic penance, suggests that, for the emperor, sexual promis-
cuity encompassed a broader spectrum of sins than contemporary church
legislation envisaged. Adultery, of course, was among the most notorious
Christian sins against the body, for which church authorities, at least from
the fourth century on, had regularly prescribed penance.107 Yet, although
adultery and prostitution had long been associated with one another in
Roman public discourse, as both shared the same stigma of sexual prom
iscuity,108 prostitution does not seem to have constituted a specific sin
against the body in early ecclesiastical legislation, and consequently there
are no specific periods of penance prescribed in the early church canons
for prostitution.109 This perhaps recalls the principle of Roman law that a
(registered) prostitute, while being sexually promiscuous, nonetheless did
110. A relationship with a married woman could be legally charged (as adulterium),
while intercourse with a prostitute could not: Rousselle, Porneia, 84–85.
111. For a different reading of these stories that, nonetheless, also rejects their
relevance for the social context of late Roman prostitution, see P. Cox Miller, “Is
There a Harlot in This Text? Hagiography and the Grotesque,” Journal of Medieval
and Early Modern Studies 33 (2003): 419–35, who argues that the texts even fail to
construct true sanctity of Pelagia and Mary, as ultimately they cannot rid themselves
of the stigma of female sexuality.
112. Augustine, De ordine 2.4.12 (PL 32:1000).
113. G. H. Joyce, Christian Marriage: An Historical and Doctrinal Study (Lon-
don and New York: Sheed and Ward, 1933), 309–328; Evans Grubbs, Law and
Family, 242–53. The prohibition of divorce, and the equation of remarriage after
divorce with adultery, was laid down in Scripture, see Paul 1 Cor 7; Mark 10.2–12;
Luke 16.18. For prescriptions of penance after remarriage see, e.g., Elvira (306 c.e.)
can. 8–11 (J. Vives, Concilios Visigóticos e Hispano-Romanos [Barcelona, Madrid:
Consejo Superior de Investigaciones Cientificas, Instituto Eurique Flórez, 1963], 4);
H. Crouzel, L’Église primitive face au divorce: du premier au cinquième siècle (Paris:
Beauchesne, 1971), 116–21.
114. However, there was in Justinian’s thinking, although he was probably the
most advanced secular legislator on Christian marriage, still no assertion that mar-
riage was a sacrament that could not be broken; see J. T. Noonan, “Novel 22,” in
The Bond of Marriage, ed. W. W. Bassett (Notre Dame, IN: The University of Notre
Dame Press, 1968), 58, 68, 89. Justinian’s laws on monastic imprisonment for adul-
tery and divorce opened up the possibility for the innocent party to get remarried, as
in earlier legislation (CI 1.3.52.15 (531 c.e.) [CIC 2.36]; Nov 22.5 (536 c.e.) [CIC
HILLNER/MONASTIC IMPRISONMENT 233
Significantly, however, it was only for adulteresses and divorcees that pen-
ance became a legally prescribed punishment, while the penance of pros-
titutes only made it into imperial practice, but not into imperial law. This
shows that, for Justinian, in the same way as it had done for Augustus, it
was the manipulation of the sexual behavior of the aristocratic elite that
mostly mattered from a legal point of view.
There is another, perhaps even more crucial, difference between Justin-
ian’s understanding of the nature and purpose of monastic penance and
traditional penitential practices of the church. The penance Justinian envis-
aged was not a voluntary decision, but a coercive measure established by
a secular court. To be sure, bishops under Justinian retained jurisdiction
over clerics (and lay persons) in purely spiritual matters and in questions
of Christian discipline, but had lost their authority to judge clerics and
ascetics involved in criminal cases to the secular court, although they often
acted as associate judges.115 Some of Justinian’s constitutions established
as public crimes actions which had hitherto been considered only viola-
tions against church discipline, such as gambling by clerics. The emperor
now assigned the authority to decide on their punishment to the secular
court. The punishment that an ecclesiastical court would have prescribed
would probably not have been penance, but excommunication or, in the
case of clerics, deposition, while the possibility to undergo penance would
have been offered on a voluntary basis.116
The uneasiness with which this blurred boundary between penance
and secular punishment was viewed becomes apparent in Procopius’s two
descriptions of Justinian’s and Theodora’s enterprise to rescue prostitutes
3.150]) he had enumerated monastic profession of one party as one of the legitimate
reasons for divorce and remarriage. Ecclesiastical legislation of course was very reluc-
tant to allow remarriage of the innocent party in a divorce, even in the case of adul-
tery (see, for example, Elvira (306 c.e.) can. 9, can. 10 [Vives, Concilios Visigóticos
e Hispano-Romanos, 4]), and condemned remarriage even if one partner had entered
monastic life (Basil, Moralia, Rule 73.1 [PG 31:849–51]).
115. H. Jaeger, “Justinien et l’episcopalis audientia,” Revue d’histoire du droit
française et étranger 38 (1960): 214–62. For the audientia episcopalis in late antiquity
in general see, for example, G. Vismara, “La giurisdizione civile dei vescovi,” in La
giustizia nell’alto medioevo (secoli V–VIII), Settimane di studio 42 (Spoleto: Centro
italiano di studi sull’alto medioevo, 1995), 225–51.
116. For this difference between penance and punishment and their increasingly
blurred boundaries in the early Middle Ages see R. Kottje, “Buße oder Strafe?,” La
giustizia nell’alto medioevo, Settimane di studio 42 (Spoleto: Centro italiano di studi
sull’alto medioevo, 1995), 445–46. For the understanding of penance as a voluntary
measure especially in the Byzantine east see J. Meyendorff, Byzantine Theology: His-
torical Trends and Doctrinal Themes (London: Mowbrays, 1975), 196.
234 JOURNAL OF EARLY CHRISTIAN STUDIES
Conclusion
There are a number of reasons for the absence of the prison sentence from
the catalogue of penalties in Roman criminal law. Scholars have pointed at
the Roman understanding of the functions of punishment. Prime motives
seem to have been retribution and deterrence, and as such, punishment
had to be of a highly public and dramatic nature for it to effect the loss of
honor.118 This concept of punishment as humiliating terror that ensured
obedience continued into late antiquity and was to some extent shared
by Christian authorities.119
Yet there might have also been more practical considerations at play than
simply a lack of understanding punishment as an opportunity to reform.
There is no denial—a fact sometimes painfully felt by modern govern-
ments—that the administration of the prison sentence is a time- and cost-
117. Procopius, Secret History 17.5–6 (LCL 290:198): pÒrnaw ém°lei pl°on µ
pentakos¤aw ége¤rasa §n égorò m°s˙ §w tri≈bolon, ˜son époz∞n misyarnoÊsaw, ßw
te tØn éntip°raw µpeiron ste¤lasa §n t“ kaloum°nƒ Metano¤a monasthr¤ƒ kaye›rje
tÚn b¤on metamfi°sasyai énagkãzousa. œn dÆ tinew §rr¤ptoun aÈtåw éfÉÍchloË nÊk-
tvr, taÊt˙ te t∞w ékous¤ou metabol∞w éphllãssonto. “Harlots, for instance, to the
number of more than five hundred who plied their trade in the midst of the market
place at the rate of three obols—just enough to live on—she gathered together, and
sending them over to the opposite mainland she confined them in the Convent of
Repentance, as it is called, trying there to compel them to adopt a new manner of life.
And some of them threw themselves down from a height at night and thus escaped
the unwelcome transformation.”
118. On this understanding of Roman punishment, see Harries, Law and Empire,
136.
119. See Augustine who teaches that fear can be beneficial, e.g., Enarrationes in
psalmos 118.31.3 (CCL 40:1771) about fear as a positive emotion in the family; Har-
ries, Law and Empire, 144–45.
HILLNER/MONASTIC IMPRISONMENT 235
accessibility in Byzantine legal literature show that their practical use was
limited, especially in the provinces.126 However, we do know of frequent
use of monasteries in Constantinople and its suburbs as prisons in Byz-
antine history. In the early seventh century, thus only a few decades after
Justinian’s death, the wife and daughter of the emperor Maurice were
imprisoned by his successor Phokas in a monastery called Nea Metanoia.127
Perhaps under the influence of Justinian’s legislation, therefore, a monas-
tery publicly labelled as a place of penance was used for confinement of
non-monastic people. Further incidents happened in the middle Byzantine
period (eighth to tenth centuries). The prisoners concerned were, almost
without exception, members of the aristocracy or the imperial family.128 If
we accept that these penalties were implemented on the basis of Justinian’s
legislation, we may witness further proof that his laws were designed to
target the urban elite, and not the general public.
126. R. Morris, “Dispute Settlement in the Byzantine Provinces in the Tenth Cen-
tury,” in The Settlement of Disputes in Early Medieval Europe, ed. W. Davis and P.
Fouracre (Cambridge: Cambridge University Press, 1992), 126–27.
127. T. Preger, Scriptores originum Constantinopolitanarum 3 (Leipzig: Teubner,
1907), 274.
128. J. Hussey, “Byzantine Monasticism,” Cambridge Medieval History 4, 2nd ed.
(Cambridge: Cambridge University Press, 1966), 182. See examples in Goria, “La Nov.
134, 10; 12,” 73; A. M. Talbot, “Late Byzantine Nuns: By Choice or Necessity?,”
Byzantinische Forschungen 9 (1985): 112; C. L. Connor, Women of Byzantium (New
Haven/London: Yale University Press, 2004), 172.