Emperor Jovian's Law of Religious Tolerance (a. 363)

María Victoria Escribano Paño - Rita Lizzi Testa

PoLíTicA, RELigión y LEgiSLAciónEn EL iMPERio RoMAno

(SS. iV y V d.c.)

Politica, religione e legislazionenell’imPero romano

(iV e V secolo D.c.)

Bari 2014

e s t r a t t o - s e pa r a t a

Studi storici sulla Tarda Antichitàdiretti da Domenico Vera

37

politica, religione e legislazione nell’impero romano (iV e V secolo d.c.)

PolíTica, religión y legislación en el imPerio romano (ss. iV y V d.c.) - isBn 978-88-7228-709-5 - © 2014 · edipuglia s.r.l. - www.edipuglia.it

MAR MARCOS

EMPEROR JOVIAN’S LAW OF RELIGIOUS TOLERANCE (a. 363)*

Themistius’s oratio 5, delivered in Ancyra on 1 January 364, commemorated the

consulship of emperor Jovian, chosen by the army to succeed Julian after his unexpected

death on the Persian front in June 363 1. A large part of the speech, approximately half, is

taken up by praising the new emperor’s religious policy, governed by tolerance 2. On

* This study was carried out within the framework of the research project HAR2012-35185, foundedby the Spanish Government.

1 Julian died on 26 June 363 in the region of Maranga, across the River Tigris (Amm. 25, 3). The mil-itary commanders, divided into two factions (one headed by the Gauls Dagalaifus and Nevitta, who hadaccompanied Julian from Western Europe, and the other by the eastern generals, the survivors of Con-stantius’ regime, Arinthaeus and Victor), proposed a compromise candidate, Secundus Salutius, the east-ern praetorian prefect, who turned down the offer claiming illness and old age. The following day, 27June, Jovian, a senior officer in the imperial guard (primicerius domesticorum omnium) was elected em-peror. The most detailed account of the election is given by Amm. 25, 5, 1-6, who maintains that it wasa few ardent soldiers (tumultuantibus paucis) who imposed their choice and that the election was duenot so much to Jovian’s personal merits as to the services rendered by his father, the comes domestico-rum Varronianus, who had just retired from public service. However, Ammianus, who attempts to pres-ent Jovian as an illegitimate emperor, is not a neutral source. His version of the election, which heattributes to necessity and haste, taking all merit away from Jovian, is biased by his objective of mak-ing the blame for the disastrous Persian campaign fall on him and not on Julian. Vid. T. D. Barnes, Am-mianus Marcellinus and the Representation of Historical Reality, Cornell University Press 1998,140-142; P. Heather, Ammianus on Jovian: History and Literature, in J. W. Drijvers - D. Hunt (eds.), TheLate Roman World and Its Historian, London 1999, 105-108, 114-115; G. Kelly, Ammianus Marcelli-nus. The Allusive Historian, Cambridge 2008, 97. Other sources, like Them. Or. 5, 65b-66c, and Zos.3, 30, 1, speak of unanimity in the election, like Christian historiography in general, which claims thatthe soldiers wanted a Christian emperor (Ruf. HE 2, 1; Socr. HE 3, 22; Soz. HE 6, 3, 1; Theod. HE 4,1, 2). However, as we shall see later in the text, the Christian interpretation of the events is unreliablebecause of its apologetic nature. For an assessment of the different testimonies, even though it is not pos-sible to fully know the reasons why Jovian was chosen (even though he cannot have been such an ob-scure person as Ammianus presents him), and for Jovian’s brief reign in general, vid. A. Solari, Laelezione di Gioviano, Klio, 26 (1933), 330-335; R. Soraci, L’imperatore Gioviano, Catania 1968; R.von Haehling, Ammians Darstellung der Thronbesteigung Jovians im Lichte der heidnisch-christlichenAuseinandersetzung, in A. Lippold-N. Himmelmann (hrsgg.), Bonner Festgabe Johannes Straub, Bonn1977, 347-358; G. Wirth, Jovian. Kaiser und Karikatur, in Vivarium: Festschrift Theodor Klauser zum90. Geburtstag, JAC, 11 (1984), 353-384; J. F. Matthews, The Roman Empire of Ammianus, London1989, 183-184; M. Clauss, Iovianus, in Reallexikon für Antike und Christentum XVIII, 1998, 811-20.

2 Ed. R. Maisano (a cura di), Temistio. Discorsi, Torino 1995, 266-287 (revised version of the edi-tion by H. Schenkl - G. Downey - A. F. Norman (eds.), Themistii Orationes quae supersunt, vol. 1,Leipzig 1965, 91-104). English translation with an introduction by P. Heather - D. Moncur, Politics,



several occasions Themistius mentions a ‘law’ (nomos) that Jovian had issued at the

beginning of his reign, guaranteeing freedom of conscience and therefore freedom of

worship for all his subjects, both Christians and followers of traditional cults 3. The

authenticity of this law, which is no longer extant, has been discussed and the general

current of opinion in modern historiography is that Jovian never issued a true edict of

tolerance. The mention of the law would be a rhetorical resource in the context of a speech

that, in reality, is not praising a policy already put into practice but exhorting the new

emperor to direct his religious policies in the direction desired by Themistius, and the

political class he represented, i.e. the Senate of Constantinople and the Eastern elites.

Oratio 5 contains the best articulated pagan apology of tolerance, amongst the various

examples preserved from Antiquity 4, which has made it famous and the object of

numerous studies 5. The aim of this paper is not to go over the Themistian idea of tolerance

Philosophy, and Empire in the Fourth Century, Liverpool University Press 2001, 149-173. The oratiodeals with three topics, which were the most sensitive issues during Jovian’s short reign. After a briefintroduction, in which Themistius praises the prince for having called philosophy to his side as his coun-sellor, which is to say, for having called Themistius himself (63a-64c), he deals with the conditions ofhis access to power (64d-67b), the policy of religious tolerance (67b-70c) and concludes with an invi-tation for Jovian to come to Constantinople soon to legitimize his election, together with a brief allusionto the controversial victory over the Persians and his wishes that his son Varronianus, who that dayshared with his father his appointment as consul, should one day become Augustus (70c-71b).

3 nomos: 68b, 69b, 70a; nomothesia: 67b.4 The debate about religious freedom and tolerance arose in Christian apologetic literature at the time

of the persecutions. After Constantine, and above all in the second half of the fourth century until thetime of Theodosius I, it was the pagan intellectuals who took up the topic again, using arguments thatto a large extent were the same as the ones used by the Christians. Among the vast literature on thisquestion, it is worth referring to: A. H. Armstrong, The Way and the Ways: Religious Tolerance andIntolerance in the Fourth Century A.D., VCh, 38 (1984), 1-17; P. Garnsey, Religious Toleration inClassical Antiquity, in W. J. Sheils (ed.), Persecution and Toleration, London 1984, 1-27; P. Frezza,L’esperienza della tolleranza religiosa fra pagani e cristiani dal IV al V sec. d.C. nell’Oriente ellenistico,SDHI, 55 (1989), 41-97; G. G. Stroumsa, “Le radicalisme religieux du premier christianisme: contexteet implications”, in E. Patlagean - A. Le Boulluec (eds.), Les retours aux Ecritures. Fondamentalismesprésents et passés, Louvain-Paris 1993, 357-381; C. Ando, Pagan Apologetics and Christian Intolerancein the Ages of Themistius and Augustine, JEChS, 4 (1996), 171-207; H. A. Drake, Lambs into Lions:Explaining Early Christian Intolerance, P&P, 153 (1996), 3-36.; E. DePalma Digeser, Lactantius,Porphyry, and the Debate over Religious Toleration, JRS, 88 (1998), 129-146; J. Streeter, ReligiousToleration in Classical Antiquity and Early Christianity, in G. E. M. de Ste. Croix, Christian Persecution,Martyrdom, and Orthodoxy, Oxford University Press 2006, 229-259; M. Marcos, La idea de libertadreligiosa en el Imperio romano, in J. Fernández Ubiña- M. Marcos (eds.), Libertad e intoleranciareligiosa en el Imperio romano, Universidad Complutense de Madrid 2007, 61-81; G. Sfameni Gasparro,Religious Tolerance and Intolerance in the Ancient World: A Religious-historical Problem, in M. Marcos- R. Teja (eds.), Tolerancia e intolerancia religiosa en el Mediterráneo antiguo: Temas y problemas,Madrid 2008, 11-37; M. Kahlos, Forbearance and Compulsion. The Rhetoric of Religious Tolerance andIntolerance in Late Antiquity, London 2009; Eadem, The Rhetoric of Tolerance and Intolerance: FromLactantius to Firmicus Maternus, in J. Ulrich - A. Ch. Jacobsen - M. Kahlos (eds.), Continuity andDiscontinuity in Early Christian Apologetics, Frankfurt am Mainz 2009, 79-95.

5 The oratio is cited by Socr. HE 3, 25; 4, 32. Themistius gave another speech on the same topic inAntioch circa 375/376 before the emperor Valens (Socr. HE 4, 32) but it has not been preserved. It hasbeen proven that the Latin translation, Ad Valentem de religionibus, is a sixteenth century falsificationby the Hungarian humanist Andreas Dudith: R. Förster, Andreas Dudith und die zwölfte Rede desThemistios, Neue Jahrbücher für das klasische Altertums, 6 (1900), 74-93.

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once more, as this topic has been fully explored 6, but to show that the law that Themistius

alludes to did exist, and to analyse its political significance and context.

The existence of the law

In the late eighteenth century, Jean-Philippe René de La Bletterie, the author of the first

monograph on Jovian, defended the existence of this law of tolerance7. Otto Seeck 8, André

Piganiol 9 and Arnold H. M. Jones 10 accepted this without much discussion, whereas

others, like Viktor Schultze 11, Johannes Geffcken 12 and, more recently, Rosario Soraci 13

have denied it. It was Gilbert Dagron who discussed the question in detail in his essay on

Themistius and the political traditions of Hellenism, the first in-depth study on the ora-tio 5 14. Dagron objected that no confirmation of the existence of this law can be found in

other sources, it is not preserved in the Theodosian Code, and no references to tolerance

are seen in other of Jovian’s laws on religion, such as the one that re-established freedom

of teaching for Christians 15, which had been limited by Julian 16, or the law that punished

6 On the concept of tolerance held by Themistius, in debt to the thought of Porphyry of Tyre and alsoof Plutarch and a long Christian apologetic tradition in favour of persuasion instead of coercion, vid. G.Dagron, L’Empire Romain d’Orient au IVe siècle et les traditions politiques de l’Hellénisme. Le té-moignage de Thémistios, Travaux et Mémoires 3, Paris 1968, 1-235: 180-186; L. J. Daly, Themistius’Plea for Religious Tolerance, GRBS, 12 (1971), 65-79; J. Vanderspoel, The Background to Augustine’sDenial of Religious Plurality, in H. A. Meynell (ed.), Grace, Politics and Desire: Essays on Augustine,Calgary 1990, 179-93: 185-188; R. Maisano, Il discorso di Temistio a Gioviano sulla tolleranza, in F.E. Consolino (ed.), Pagani e cristiani da Giuliano l’Apostata al sacco di Roma: atti del Convegno In-ternazionale di Studi, Rende, 12-13 novembre 1993, Catanzaro 1995, 35-51; Ando, Pagan Apologetics,171-207; H. A. Drake, Constantinian Echoes in Themistius, Studia Patristica, 34 (2001), 44-50; J. Ri-toré Ponce, Tradición y originalidad en la concepción temistiana de la tolerancia religiosa, Habis, 32(2001), 521-540; I. Ramelli, “Vie diverse all’unico mistero”. La concezione delle religioni in Temistioe il suo atteggiamento verso il cristianesimo, Istituto Lombardo (Rend. Lett.), 139 (2005), 455-483; M.V. Cerutti, Uno itinere non potest perveniri ad tam grande secretum (Symm. Rel. III, 10), in A. M. Maz-zanti (ed.), Il volto del mistero. Mistero e rivelazione nella cultura religiosa tardoantica, Castel Bolog-nese 2006, 159-206: 180-183; Kahlos, Forbearance and Compulsion, 82-87.

7 J.-Ph.-R. de la Bletterie, Histoire de l’empereur Jovien et traductions de quelques ouvrages de l’em-pereur Julien, Paris 1776, 101-106.

8 O. Seeck, Die Briefe des Libanius zeitlich geordnet, Leipzig 1906, 301; idem, Geschichte des Un-tergangs der antiken Welt, Berlin 1897-1921, IV, 368; idem, RE, IX, 2006-2011.

9 A. Piganiol, L’Empire Chrétien, Paris 1972 (19471), 165.10 A. H. M. Jones, The Later Roman Empire 284-602, Oxford 1964, 150.11 V. Schultze, Geschichte des Untergangs des griechisch-römischen Heidentums, I. Staat und Kirche

im Kampfe mit dem Heidentum, Jena 1887, 184.12 J. Geffcken, Der Ausgang des griechisch-römischen Heidentums, Heidelberg 19292, 142, n. 8 (=

The Last Days of Greco-Roman Paganism, Amsterdam 1978, 159, n. 8).13 Soraci, L’imperatore Gioviano, 83-84.14 Dagron, L’Empire Romain d’Orient, 173-177.15 CTh 13, 3, 6 (11 January 364, attributed to Valentinian and Valens). The law, directed at the prae-

torian prefect Mamertinus, establishes that anyone capable, through moral integrity and eloquence, toteach the young, may open a new school or re-open one that had been abandoned.

16 This is the notorious School Law, CTh 13, 3, 5 (17 June 362) in which Julian forbade Christians

EMPEROR JOVIAN’S LAW OF RELIGIOUS TOLERANCE (A. 363) 155



with the death penalty anyone who married or tried to marry a consecrated virgin or a

Christian widow 17. For Dagron, on the basis of a passage from Sozomen 18, which we

shall return to below, Jovian did not carry out any original legislation but, as a general

measure, declared Julian’s religious laws null and reinstated those of Constantine, which

recognised certain religious freedom, and those of Constantius II, which forbade all magic

and divination 19. Themistius would have exaggerated his interpretation of these measures,

congratulating Jovian for the qualities that he should show and encouraging him to fol-

low Constantine’s model rather than the political line pursued by Constantius and Julian.

Hence, Themistius expresses in his oratio 5 what he expected from Jovian’s ‘legislation’,

which is a new Letter to the Eastern Provincials 20 to put a halt to the Christian reaction

to Julian’s persecution. In line with Dagron, Lellia Cracco Ruggini points out that the ex-

hortatory tone of the speech should be understood within the climate of the anti-pagan

reaction that occurred after Julian’s death. Although this reaction was not so powerful as

the Christian sources would have us believe, there was a risk of violent attacks on pagans.

Themistius’ intention, at the start of a reign that was still not fully consolidated and with

no clear orientation, was to prevent or avoid those reactions by defending the cause of a

conciliatory religious poikilia, in contrast with a possible orientation towards Christian

universalism that might be imposed by force 21.

to teach publicly and which he justifies and explains in his Ep. 61 (Bidez). This law has given rise to awide range of interpretations and extensive literature. For a state of the question, vid. E. Germino, Scuolae cultura nella legislazione di Giuliano l’Apostata, Napoli 2004; R. Goulet, Réflexions sur la loi sco-laire de l’Empereur Julien, in H. Hugonnard-Roche (ed.), L’enseignement supérieur dans les mondes an-tiques et médiévaux. Aspects institutionnels, juridiques et pédagogiques, Paris 2008, 175-200; A.Saggioro, Giuliano imperatore e l’Edictum de professoribus. Integrazione e senso della storia, in N.Spineto (ed.), La religione come fattore di integrazione. Modelli di convivenza e di scambio religiosonel mondo antico, Alessandria 2008, 163-188; J.-M. Carrié, Julien législateur: un mélange des genres?,AnTard, 17 (2009), 175-184.

17 CTh 9, 25, 2, dated in Antioch on 19 February 364, two days after Jovian’s death, addressed to thepraetorian prefect Saturninus Secundus Salutius. Soz. HE 6, 3, 5 attributes it to Jovian, although on thedates near the time the edict was issued the emperor was no longer in Antioch, and was on the way toConstantinople. This is also included in CI 1, 3, 5, where it is also attributed to Jovian. The law, whichaccepts Christian principles, is very similar to another one issued by Constantius II, CTh 9, 25, 1 (22 Au-gust 354), although this one does not establish the death penalty for offenders. On the evolution of leg-islation on rape in Late Antiquity, L. Desanti, Costantino, il ratto e il matrimonio riparatore, SDHI, 52(1986), 195-217; S. Puliatti, La dicotomia vir-mulier e la disciplina del ratto nelle fonti legislative tardo-imperiali, SDHI, 61 (1995), 471-529. In general, on Jovian’s legislative activity, F. Pergami, Rilievisulla produzione normativa dell’imperatore Gioviano, in Testimonium amicitiae (Studi in onore diFranco Pastori), Milano 1992, 255-280.

18 Soz. HE 6, 3, 3.19 Dagron, L’Empire Romain d’Orient, 174-175.20 Two letters of Constantine’s have been preserved, one to the Palestinian provincials (Eus. VC, 2,

24-42), putting an end to Licinius’s persecution, and the other to the Eastern provincials (Eus. VC 2, 48-60), which establishes that freedom of worship also applies to the pagans. On Constantine’s tolerancetowards paganism, vid. H. A. Drake, Constantine and Consensus, ChHist, 64 (1995), 1-15; idem, Con-stantine and the Bishops: The Politics of Intolerance, The Johns Hopkins University Press 2002, 235-245, and recently J. Fernández Ubiña, Privilegios episcopales y genealogía de la intolerancia cristianaen época de Constantino, Pyrenae, 40 (2009), 81-119.

21 L. Cracco Ruggini, Simboli di battaglia ideologica nel tardo ellenismo (Roma, Atene, Costantinop-oli; Numa, Empedocle, Cristo), in Studi Storici in onore di O. Bertolini, Pisa 1972, 177-300: 222-223.

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The idea that the tolerance being praised in oratio 5 is a plea to the emperor, where

Themistius represents the feelings of the Senate of Constantinople and the Eastern pagan

elites, was developed later by Lawrence J. Daly 22 and John Vanderspoel in his mono-

graph on Themistius and the Imperial Court 23. Vanderspoel again denies the existence of

the law, as it has not been preserved and the oratio takes the form of an exhortation: it is

an insistent invitation to tolerance in favour of paganism, which would make no sense if

Jovian had actually issued the edict. To circumvent the fact that the oratio speaks of a law

that already exists, Vanderspoel argues that Themistius does not use the term nomos in a

technical sense, but refers to the will of the emperor, who is known as nomos empsychos(living law), by virtue of which any imperial pronouncement has the quality of law. In any

case, Vanderspoel concludes, the tolerance guaranteed by any law must refer to the Chris-

tians’ internal matters, in which Jovian had emphatically declared that he would not in-

terfere 24. Dagron-Vanderspoel’s interpretation has been unanimously accepted as valid

in recent historiography which has studied either Jovian’s policies 25, or the oratio 5 in

more general terms 26.

I believe that Jovian issued an edict in favour of tolerance and he did this at the very

start of his reign («a prelude to your care for mankind» 67b), and as programmatical sign

of the direction of his religious policy. This is not incompatible with the fact that the oratiotakes the form of a plea. Recently, Peter Heather and David Moncur have defended this

idea with convincing arguments, that will be examined below, and to which I believe

others may be added 27. But what I am interested in here is not only to confirm the existence

of the law but to examine its significance in its political context. Above all, because a law

of tolerance was not technically necessary. Religious freedom was guaranteed by the

legislation made by Julian who, despite what Christian apology insists on claiming and

what is affirmed by a large part of modern historiography, never stopped Christians from

practising their religion, and who often spoke out in favour of freedom of worship and

issued laws that guaranteed it, even though these have not been preserved either 28. It is

22 Daly, Themistius’ Plea, 65-79. Perhaps in a lapsus, Daly says that Themistius delivered oratio 5 inAntioch. Without citing Dagron, he does not discuss the question of the existence of the tolerance edict,but regards the oratio as a request for tolerance.

23 J. Vanderspoel, Themistius and the Imperial Court: Oratory, Civic Duty, and Paideia from Con-stantius to Theodosius, Ann Arbor, MI 1995, 148-154.

24 Socr. HE 3, 25.25 Hence, Wirth, Jovian. Kaiser und Karikatur, 381.26 Hence, Maisano, Temistio, 22 and 278, n. 43; J. Ritoré Ponce, Temistio. Discursos políticos, In-

troducción, traducción y notas, Madrid 2000, 217-218; idem, Tradición y originalidad, 522-523.27 Heather-Moncur, Politics, Philosophy, and Empire, 154-158. Heather also defends the existence

of the law in Ammianus on Jovian, 112-114.28 Julian’s religious policy has been the most frequently studied aspect of his reign, and the literature

on it is so large that it cannot all be cited here. The most recent summary of Julian’s reign, with severalcontributions about the religious questions, can be found in L’empereur Julien et son temps, AnTard, 17(2009), 7-250. In modern historiography, Julian’s anti-Christian policy is usually regarded as intolerant,if not simply persecution: S. Scicolone, Aspetti della persecuzione giulianea, Rivista di Storia dellaChiesa in Italia, 33 (1979), 420-434; R. J. Penella, Julian the persecutor in fifth century Church Histo-rians, AncW, 24 (1993), 31-43. That Julian’s religious policy amounted to persecution is accepted even




precisely this unnecessary character that makes Jovian’s tolerance law historically

significant. As Jill Harries has summed up, «the purpose of constitutions was two-fold,

to regulate and to communicate. Students of legal history are naturally more concerned

about the former [...] However, the aim to communicate not only the will but also the

character of the emperor to his subjects was an essential part of the methods by which an

area extending from Hadrian’s Wall to the Euphrates was kept together by concentrating

attention and (it was the hope) loyalty on the central power, as personified by the

emperor» 29. Jovian’s tolerance law, which should be assessed in the context of the

conditions under which he came to power and the weight of Julian’s legacy, is interesting

more for what it communicates than what it legislates.

Heather and Moncur put forward arguments that outweigh Dagron and Vanderspoel’s

main objections to the existence of the law. In the first place, the fact that it is not in-

cluded in the Theodosian Code does not prove that it did not exist. The Code is known

to be selective and some important laws were not included in it for various reasons. In

this case, the compilers might not have found it in the archives or it might have become

obsolete, which is an important reason for Heather and Moncur 30. I would add that, more

important than the lack of validity of the law, the compilers of the Code, in accordance

with the spirit that held sway in the project of the work, wanted it to be useful in their

by those who look on the figure of Julian sympathetically, from E. Gibbon, Decline and Fall, chap. 23(«the deadly spirit of fanaticism perverted the heart and understanding of a virtuous prince»), to G. W.Bowersock, Julien the Apostate, Cambridge Mass. 1978, 92 («Julian’s policies were edging close topersecution»). Thus also in Heather-Moncur, Politics, Philosophy, and Empire, 137, who maintain thatJulian’s religious policies «hardened, in certain areas at least, into a positive persecution of Christian-ity», an opinion that I believe is mistaken. The idea of a ‘positive’ persecution under Julian is refuted byJ. Bouffartigue, Du prétendu parti païen au prétendu fléau de Dieu: observations sur l’action an-tichrétienne de l’empereur Julien, in Giuliano imperatore: le sue idee, i suoi amici, i suoi avversari (Attidel Convegno Internazionale di Studi. Lecce 10-12 dicembre 1998, Rudiae 10), Lecce 1998, 61-90;idem, L’empereur Julien était-il intolérant?, REAug, 53 (2007), 1-14; M. Mazza, Giuliano o dell’utopiareligiosa: il tentativo di fondare una chiesa pagana?, in Giuliano imperatore: le sue idee, i suoi amici,i suoi avversari (Atti del Convegno Internazionale di Studi. Lecce 10-12 dicembre 1998, Rudiae 10),Lecce 1998, 19-42: 20-29; M. Marcos, “He forced with gentleness”. Emperor Julian’s Attitude to Reli-gious Coercion, AnTard, 17 (2009), 191-204, who highlights that, despite the emperor’s open antipathytowards Christians and his wish to remove them from institutions and culture, he always respected theprinciple of religious freedom, spoke against coercion and was opposed to violence. Consequently, apartfrom some exceptional cases, during his reign Christians could continue to practise their religion andmaintain their churches.

29 J. Harries-I. Wood (eds.), The Theodosian Code, London 1993, 7.30 For me this is not a definitive argument, as the Theodosian Code included laws that were no longer

in force. The Gesta Senatus, which explain the presentation of the Code before the Senate of Rome,give the initial declaration of the procedure used for its preparation by the editors. It does not say therethat it should only include laws that are in force. On the contrary, the instructions about how the lawsshould be put in order says that they should be in the sequence in which they were originally dictated,so that it could be seen which ones were the most valid: ipsius etiam compositione operis validiora esse,quae sunt posteriora, monstrante («but also the arrangement of the work itself shall show that the lawswhich are later are more valid»). Vid. J. Matthews, The Making of the Text, in Harries-Wood (eds.), TheTheodosian Code, 19-44: 22, against the opinion in the same book of B. Sirks, The Sources of the Code,45-67: 57, who claims that obsolete laws must have been omitted and, except on odd occasions, that wasthe general rule.

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time 31, and were not interested in including constitutions that went against the spirit of

the times. When it was drafted, in the 430s, religious freedom and the debate that this

issue had given rise to during the conflicts between pagans and Christians had been left

behind in the context of openly pro-Christian policies, hostile to paganism. In addition,

the conditions in which the Code was transmitted should be taken into account: no com-

plete manuscript exists and it has been reconstructed from fragments and the Lex Ro-mana Visigothorum in the early sixth century, which is widely based on it 32. Finally, the

fact that the ex silentio argument is not valid is shown by an extraordinarily similar case:

the law of freedom of worship that Valentinian I, Jovian’s successor, dictated at the very

start of his reign and whose existence we only know of because Valentinian himself

mentions it in another of his laws: Testes sunt leges a me in exordio imperii mei datae,quibus unicuique, quod animo imbibisset, colendi libera facultas tributa est 33 («Of this

opinion the laws given by me in the beginning of my reign are witnesses, in which free

opportunity was granted to everyone to cultivate that which he had conceived in his

mind»). These leges, which are usually called a ‘tolerance edict’, are not included in the

Code 34. Another similar case, near in time, is the other ‘tolerance edict’ issued by Julian

at the start of his rule, decreeing freedom of worship. In fact, Julian must have issued

more than one law 35, perhaps two: one ordering the re-opening of the temples, renewal

of sacrifices and restoration of traditional worship 36, and another decreeing the freedom

of all Christians, the return of the exiled in Constantius’s time and the recovery of their

31 Thus it says in the Gesta: Sed cum simplicius iustiusque sit praetermissis eis, quas posteriores in-firmant, explicari solas, quas valere conveniet, hunc quidem codicem et priores diligentioribus com-positos cognoscamus, quorum scholasticae intentioni tribuitur nosse etiam illa, quae mandata silentioin desuetudinem abierunt, pro sui tantum temporis negotiis valitura («Although it would be simpler andmore in accordance with law to omit those constitutions which were invalidated by latter constitutionsand to set forth only those which must be valid, let us recognize that this Code and the previous one werecomposed for more diligent men, to whose scholarly efforts it is granted to know those laws also whichhave been consigned to silence and have passed into desuetude, since they were destined to be valid forcases of their own time only»). Trans. C. Pharr, The Theodosian Code, and Novels, and the SirmondianConstitutions, Princeton 1952, 4-5.

32 This is not the place to go into the many problems of the compilation and structure of the Theo-dosian Code. A good state of the question, with the most important bibliography, can be found in L. deGiovanni, Istituzioni, scienza giuridica, codici nel mondo tardoantico. Alle radici di una nuova storia,Roma 2007, 342-356.

33 CTh 9, 16, 9 (a. 371).34 Although these leges are usually attributed to Valentinian and Valens together, they are surely due

to Valentinian alone, who speaks in the first person. He would have issued them at the start of his reign,before associating Valens with the power, therefore between 26 February and 28 March 364. Thus, R.Lizzi Testa, Senatori, popolo, papi. Il governo di Roma al tempo dei Valentiniani, Bari 2004, 251-252.Valentinian alluded to the laws in a pronouncement made before the Senate on 29 May 371, confirmingthe traditional distinction between legitimate divination (haruspicina) and suspicious magical customs.On the political significance of Valentinian’s legislation on tolerance, D. Hunt, Valentinian and the Bish-ops: Ammianus 30.9.5 in Context, in J. den Boeft et alii (eds.), Ammianus after Julian, Leiden 2007, 71-90, who still believes that it was a law issued together by Valentinian and Valens.

35 Amm. 22, 5, 2: planis absolutisque decretis.36 References to Julian’s initial measures in favour of paganism in Lib. Or. 18, 126; Greg. Naz. Or.

4, 86; Hist. Aceph. 9; Soz. HE 5, 3; Philost. HE 7, 1.




properties that had been confiscated 37. These laws have not been preserved in the Theo-

dosian Code either 38.

As well as establishing that Themistius speaks unmistakeably of a law that already

exists (in 67b he uses the Greek perfect gegone) Heather and Moncur advance in the

interpretation of the exhortatory nature of the oratio. It is known that Themistius, who did

not agree to go to Antioch to salute the new emperor when he returned from the Persian

front, for reasons unknown to us 39, delivered the panegyric in Ancyra when Jovian and his

retinue were travelling from Antioch to Constantinople. The emperor died one and a half

months later, on 17 February 364 in Dadastana, a town on the border between Cilicia and

Galatia. Socrates states that Themistius gave the oratio a second time in Constantinople

before the Senate 40. Heather and Moncur base themselves on this second reading of the

panegyric to explain its exhortatory tone: Themistius is publicising Jovian’s policy, clearly

showing him as a tolerant emperor, and wants to make this known. The exhortation is a

plea, not to the emperor but to the audience, as occurs in others of Themistius’s speeches.

In this case, the plea is aimed, first at the audience gathered to celebrate the consulship,

amongst which there were many generals and representatives of the political elite, and

then in Constantinople, at the Senate and above all the Christian senators, who might have

expected policies actively in favour of Christianity to counterbalance Julian’s pro-pagan

policy 41. With this public declaration he was trying to halt the moral pressure that Christian

elites might exercise on Jovian, especially the bishops who, as we shall see below, wasted

no time in approaching the emperor with their petitions.

Although this is a convincing explanation, I believe that the emperor and not only the

Senate, could have been the target of the plea. The fact that Jovian had issued a tolerance

edict at the start of his reign, at a time when the situation was very delicate 42, when he

37 Julian alludes to this law (nomos), Ep. 114, 436a (Bidez). Amm. 22, 5, 2 and Philost. HE 7, 4,agree that this measure only aimed to exacerbate the conflict between Christians.

38 In fact, none of Julian’s religious laws have been conserved in the Code, although some constitu-tions are included, e.g. 12, 1, 50, where the anti-Christian attitude of the emperor comes to light. Vid. E.Germino, La legislazione dell’imperatore Giuliano: primi appunti per una palingenesi, AnTard, 17(2009), 159-174: 163-164. On the problems raised by the existence of Julian’s tolerance legislation, vid.Marcos, He forced with gentleness, 195-196.

39 Themistius wrote a speech for this occasion, which was read by Clearcus, Lib. Ep. 1430, 4-5. 40 Socr. HE 3, 26.41 Socr. HE 3, 22 says that, when Jovian came to power, the Christians raised their hopes whereas the

pagans mourned for Julian.42 For the conditions of Jovian’s election, vid. supra n. 1. The situation was very difficult on the Per-

sian front and Jovian immediately decided to put an end to the war, signing a pact with Sapor in whichhe ceded to the Persians several Mesopotamian fortresses, some of them as symbolic as Nisibis and Sin-gara. The ancient sources agree that this peace was necessary but humiliating (Amm. 25, 9, 9f.; Eutr.Brev. 10, 17; Greg. Naz. Or. 5, 15; Socr. HE. 3, 22; Soz. HE 6, 3, 2; Theod. HE, 4, 1; Philost. HE 8, 1).At the same time, Jovian needed to strengthen his position in power. He lacked, as Themistius remindsus, Or. 5, 65d, any dynastic connection with the Constantinian family, he had not been the first candidatein the election and he had to counterbalance the weight of other potential candidacies, like that of Pro-copius, a relative of Julian’s who, although he adhered to Jovian’s regime, later rose in rebellion underValens (Sep. 365). Jovian soon took measures to publicize his command in the West, where some stillhoped that Julian had not died, and to consolidate his power there by repressive policies, directed at firstby his father-in-law, Lucillianus, now in retirement. The main source for these events is Amm. 25, 5-9.

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had to obtain as much support as possible and avoid any potential acts of violence 43, did

not guarantee that he would continue to be neutral in the future. This had been seen before

with Julian, who had opened his reign with laws and a real policy of tolerance, only to

change in favour of the pagans and against the Christians, whom he tried to marginalise

politically and culturally 44. Although Themistius does not mention Julian by name at any

moment, the (exaggerated) praise of tolerance in oratio 5 should be understood as a

criticism of his conflictive religious policy 45:

I rank this law (nomos) as no less important that the Persian friendship. Through the latterwe shall not be at war with the barbarians, because of this law we shall live at peace withone another. We were worse towards one another than the Persians, the legal disputes ofthe two religious factions throughout the city were more damaging than their attacks. OKing who is dearest to God, and past history has presented you with clear examples. Letthe scale find its own level, do not force the balance down on one side or the other and letprayers for your rule rise to heaven from every quarter (69b-c trans. Heather-Moncur).

Themistius and the pagan elites might fear that once Jovian had consolidated his

power, he would incline on the side of the Christians, as indeed would probably have

happened. The brevity of his reign, barely eight months, does not allow us to foresee the

direction his religious policy might have taken but, as we shall see below, in his short

government, although Jovian was tolerant, he was not neutral.

43 For this reaction, evidence is given in Lib. Or. 18, 287. In Or. 1, 138, Libanius relates how a ‘bar-barian’ (probably a military officer) tried to incite Jovian against him by saying that he could not stopmourning Julian’s death and accusing him indirectly of disloyalty to his regime. Vid. S. Bradbury, Se-lected Letters of Libanius, Liverpool University Press 2004, 192-193. In Ep. 1425 Foerster (154 Brad-bury), Libanius asks Fortunatianus to intervene in favour of the poet Philippus, a committed pagan whowas under threat. Libanius asks him to protect him from «the enemies of the temples». That it was anatmosphere of revenge is attested by Socr. HE 3, 22, who notes that Jovian’s appointment gave the Chris-tians new expectations; Greg. Naz. Or. 5, 37, says that the pagans who returned to Christianity on Ju-lian’s death were the most intolerant and he advises the Christians to avoid revenge.

44 Following J. Bidez, L’évolution de la politique de l’empereur Julien en matière religieuse, Bulletinde l’Académie Royale de Belgique Cl. Lettres, 7 (1914), 406-461, which the author develops further inhis monumental La vie de l’empereur Julien, Paris 1930, modern historiography admits that there aretwo different phases in Julian’s religious policy: an initial one of tolerance, begun in the first days ormonths of his government, and a second one of steady toughening up against Christians, which becomesevident during Julian’s stay in Antioch in summer 362. Vid. supra n. 28.

45 Julian and Themistius were not on good terms. Profound differences existed between them in theway of understanding the philosopher’s function and his relationship with power, as can be seen in Ju-lian’s Ep. ad Them., and also in their concepts of politics and religion, as it is clear in Or. 5. Themistius,who held important posts in the Senate with Constantius and later with other emperors until TheodosiusI, held no post under Julian. Among the literature that has concerned itself with their relationship, vid.T. D. Barnes - J. Vanderspoel, Julian and Themistius, GRBS, 22 (1981), 187-189; T. Brauch, Themistiusand the Emperor Julian, Byzantion, 63 (1993), 37-78; Vanderspoel, Themistius and the Imperial Court,115-134; Heather-Moncur, Politics, Philosophy and Empire, 42-47, 138-142; M. Carvalho, Themistius,the Emperor Julian and a Discussion over the Concept of Royalty in the 4th Century A.D., in P. P. A. Fu-nari-R. S. Garraffoni-B. Letalien (eds.), New Perspectives on the Ancient World, Oxford 2008, 223-228.For intellectual differences between Julian and Themistius, vid. especially J. Bouffartigue, La lettre deJulien à Thémistios: Histoire d’une fausse manoeuvre et d’un désaccord essentiel, Topoi Suppl., 7(2006), 113-138.




Other reasons may be added to all these. The fact that no source mentions the law is

not strange, above all if we consider that many of the most important accounts of Jovian,

apart from those of Ammianus Marcellinus, are Christian and are written in a strong

apologetic and polemic tone. Jovian’s reign followed immediately on to that of Julian’s,

and ecclesiastical historiography stresses the change that the new regime meant. A per-

secuting prince was replaced by a ‘confessor of the faith’, as Rufinus of Aquileya says,

who restored Christianity to the Empire 46. Christian authors tried to make Jovian appear

a zealous Christian 47, which he was not. Thus, they attributed him with a gesture during

his election process which is almost certainly false. When the soldiers acclaimed him em-

peror, Jovian rejected the appointment, saying that he was a Christian and could not com-

mand over a sacrilegious army; the soldiers replied unanimously that they were Christians

too. It was only then that Jovian accepted command 48. In the same way, ecclesiastical

historiography presents Jovian as a Christian who resisted Julian’s regime, but the fact is

that he was one of his army officers, a primicerius domesticorum, who was fighting to-

gether with him on the Persian front 49. We cannot expect to find in these texts any men-

tion of a tolerance policy and even less of a law of religious freedom. Not even can we

expect, as we shall see below, full and totally truthful information about the religious

measures taken by Jovian.

The contents of the law

Themistius explains the reasons behind Jovian’s law in a long rhetorical excursus

(67b-70a) which reflects, perhaps rather than the emperor’s own ideas about tolerance,

those of the intellectual elite at the time. Jovian has understood that it is not in the

emperor’s hands to exercise coercion (biasasthai) over his subjects in all fields, and there

are some things, like virtue in general and religion in particular, that escape constrictions

and threats. He should favour freedom, spontaneity and autonomy in this choice, as one

cannot be pious and devout (eusebes kai theophiles) out of fear of human laws which, in

addition are fleeting and lead men to change their beliefs depending on the spirit of the

46 Ruf. HE 2, 1.47 Greg. Naz. Or. 5, 15, 1 (refers to his eusebeia); Or. 21, 33 (Jovian was not an oppressor like his

predecessor, but pious and moderate); Ruf. HE 2, 1 (the pious beginnings of his reign were cut short byhis early death); Socr. HE 3, 22 (he was a resistant Christian during Julian’s time); Theod. HE 4, 2 (hewas frank against impiety and a great defender of the faith under Julian).

48 Ruf. HE 2, 1; Socr. HE 3, 22; Soz. HE 6, 3; Theod. HE 4, 1.49 According to Socr. HE 3, 22, when Julian gave his officers the option of sacrificing or abandon-

ing their rank, Jovian (whom Socrates wrongly calls chiliarchos) chose the latter but Julian, pressed bythe urgency of war, kept him among his generals. Cfr. Theod. HE 4, 1, who only says that Jovian hadbeen a great defender of the faith under Julian. Christian historiography claims that Julian expelledChristians from the militia (Greg. Naz. Or. 4, 96; Ruf. HE 1, 33; Socr. HE 3, 13; Soz. HE 5, 17; Theod.HE 3, 8) and the palace (Greg. Naz. Or. 4, 64), but Socrates is not referring to expulsion when he speaksof Jovian, only the threat of loss of rank. It is very likely that not even that gesture is true. Vid. N. Lenski,Were Valentinian, Valens and Jovian Confessors before Julian the Apostate?, ZAC, 6 (2002), 253-276.

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times. At the same time, Jovian knows that he should legislate for subjects who are diverse

in their religious beliefs and that this diversity, desired and favoured by the deity,

encourages the spirit of competition. Although, in this contest of religiousness everyone

has the same goal and there is only one supreme judge, there is no single way of reaching

it 50: «The Creator of the universe also takes pleasure in such diversity. He wishes the

Syrians 51 to organise their affairs in one way, and the Greeks in another, the Egyptians in

another 52, and does not wish there to be uniformity among the Syrians themselves but

has already fragmented them into small sects» (70a). Despite this three-way division,

which corresponds to the religious-cultural division that then prevailed in the East,

Themistius is clear that the confrontation is between ‘the two religions’ (hecaterasthreskeias, 69c), that is, between the Christians and the followers of traditional cults, a

confrontation that has been ended by the tolerance edict.

In its preamble, the edict must have contained an explicit mention of freedom of wor-

ship, probably appealing to the freedom of conscience and the incorrectness of the use of

coercion, followed by precise rules about what was or was not allowed 53:

But the law of God, which is your law, remains immovable for all time, that each man’ssoul is liberated for the path of piety that it wishes. Neither sequestration of property,nor scourges, nor burning has ever overturned this law by force. While you willpersecute the body and kill it, as it may turn out, the soul however shall escape, carrying

50 This passage is always associated with Symm. Rel. 3, 10 (uno itinere non potest perveniri ad tamgrande secretum), delivered at the court of Milan in 384 before Valentinian II to request the altar of Vic-tory be restored to the Senate. Although Symmachus might have been inspired by Themistius (we knowthat the oratio 5 was also read by Christians some time later), other influences are possible in this philo-sophical-religious view, like Plut., De Is. et Osir., 67, Porph., De regr. anim. and Phil. ex orac., and Iul.,C. Gal., frag. 21. For these possible influences, vid. Cerutti, Il volto del mistero, with an up-dated ac-count and the most important bibliography about the so-often studied Symmachus’s Relatio 3.

51 i.e. the Christians, who are called by their place of origin, as if they were an ethnos. This ethnic de-nomination, which aimed to reduce Christianity to the religion of one people, taking away its univer-salistic claim, was common in anti-Christian polemics. This, for example, in Celsus (Orig. C. Cel. 5, 25;7, 62) and in times nearer Themistius, by Julian who referred to Christians as ‘Galileans’.

52 Egypt is the place par excellence of mystic religions, at this time especially of Hermeticism.Themistius may have been referring to that, Dagron, L’Empire Romain d’Orient, 154-156; Cracco Rug-gini, Simboli di bataglia ideologica, 181, n. 11; Vanderspoel, Themistius and the Imperial Court, 25;Heather-Moncur, Politics, Philosophy, and Empire, 170, n. 106.

53 This is the structure of other tolerance edicts. Thus, Galerius’s edict, issued in Nicomedia in April311, explained first the reasons for ending the persecutions, granting Christians the legal right to existand to reconstruct their places of worship, Lact., De mort. persec. 33, 11- 35, 1. The edict was circulatedby a letter to governors. The Greek version of Eus. HE 8, 17, 3-10 is a translation of one of those let-ters. The edict announced that it would be accompanied by a letter that is not extant with instructions tothe governors about how they should act, presumably referring to the return of properties to the Church.When Maximinus Daia, in late 312, knew that Constantine had defeated Maxentius, he wrote to thepraetorian prefect Sabinus, decreeing the end of the persecution in the provinces under his control in theEast. In the letter, reproduced by Eus. HE 9, 9a, 4-9, he explains the reasons justifying this, especiallyemphasising the advantages of persuasion compared with violence. Although Maximinus Daia regardedChristianity as a superstition (deisidaimonia), he acknowledges the freedom of conscience. The so-called ‘edict of Milan’, in February 313, equally begins by explaining the reasons for the freedom of wor-ship, acknowledges the freedom of conscience and then determines the right to build churches and returnproperty confiscated from Christians, Lact., De mort. persec. 48, 2-8; Eus. HE 10, 5, 1-14.




its resolve free within it, in accordance with the law, even though it may have sufferedconstraint as far as the tongue is concerned (68b-c) [...] While it is right then for therest to admire the godlike emperor for the law, this is specially so for those to whomhe has not only granted freedom but also prescribes ordinances in no worse fashionthan Empedocles did and, by Zeus, I do not mean the ancient one. For he knows all toowell that deception and trickery batten on to each of the human virtues, and thatknavery is latent in generosity and imposture in piety. For this reason he promotes theone set of qualities and restrains the other, opening up the temples but closing thehaunts of imposture, allowing lawful sacrifices (thysias ennomous) but giving nolicense to those who practice the magic arts (tois goeteuousin). And he lays downexactly the same laws as Plato son of Ariston 54, whose words I would have quoted toyou if they were not too long for this occasion (70a-c). (Trans. Heather-Moncour).

The followers of traditional beliefs must have been particularly grateful to Jovian be-

cause, although he was a Christian, he not only granted them religious freedom but also

made a more correct interpretation of the sacred rules (thesmoi) than his predecessor, the

modern Empedocles, i.e. Julian, who was well-known for his inclinations for theurgy and

his frequent consultations of the haruspices 55. A veiled criticism of Julian can also be

read in the statement that Jovian has been the only one who has understood that religious

convictions cannot be forced, which implies that, despite his declarations against the use

of coercion, Julian has in fact used it 56.

Themistius only refers to the regulations relating to traditional religion. By forbidding

magic and divination, which had more to do with political reasons than religious ones,

Jovian was in the line of Constantine and Constantius II, some of whose constitutions

about this ban have been preserved 57. While Constantine made private divination a serious

crime, Constantius hardened the negative view of magic, abolishing the distinction

between public and private divination and assimilating it with crimen maiestatis, punished

with the death penalty. The hardest of these laws was the last one, dictated in 358 and

almost certainly abolished by Julian 58. It is not possible to know the nature of Jovian’s

54 Plat. Leg. 908D, on the existence of a large number of ungodly people, including in first place, for-tune-tellers.

55 Dagron, L’Empire Romain d’Orient, 160-163, identified this modern Empedocles with the figureof Christ. Cracco Ruggini, Simboli di battaglia ideologica, 233-239, proposes the identification with Ju-lian, which has generally been accepted. Vid. recently Ramelli, Vie diverse all’unico mistero, 476-483.That Julian was given the name of the ‘new Empedocles’ on his death, following the rumour that his bodyhad disappeared in the Tigris to become a god, like Empedocles of Agrigentus, is reported by Greg.Naz. Or. 4, 59; Or. 5, 14.

56 Bouffartigue, Du prétendi parti païen, 83.57 Constantine: CTh 9, 16, 1 (1 February 319), 2 (15 May 319), 3 (26 May 321/324); 16, 10, 1 (17

Dec. 320/1); Constantius: CTh 16, 10, 4 (1 Dec. 346/354); 9, 16, 4 (25 January 357), 5 (4 December 357),6 (5 July 358).

58 On Constantine’s rules about magic, vid. a state of the question in E. Moreno Resano, Constantinoy los cultos tradicionales, Universidad de Zaragoza 2007, 291-316. On the toughening up of Constan-tius’s laws on the matter, R. Lizzi, Senatori, popolo, papi, 219-229. For the political implications ofbanning divination, S. Montero, Política y adivinación en el Bajo Imperio romano: emperadores yharúspices (193 d.C.-408 d.C.), Bruxelles 1991.

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legislation against magic and divination, but the imperial chancellery may have directly

adopted Constantius’s legislation.

Themistius also points out that the temples remained open 59 and ‘legal sacrifices’ were

allowed. It is difficult to understand what exactly this means. Here we can understand

that traditional public worship was maintained, but also sacrifices with victims that Ju-

lian had tried by all means to revitalise? 60 I think so, as thysia means ‘blood sacrifice’ and

there is no reason to think that Themistius was not using the correct terminology. It is

true that to a Christian, sacrifice was an anathema, but if Jovian felt this aversion, which

was shared by many educated pagans at the time who considered spiritual sacrifice the

supreme offering to the deity, the new emperor was able to put political interests before

his personal preferences and chose to maintain the status quo of Julian’s legacy, at least

at this early moment of his reign. In fact, when Jovian was elected emperor, sacrifices to

the gods were made in his name and entrails were examined 61. Among Christian authors,

only Socrates states that Jovian closed the temples and forbade blood sacrifices 62. The first

of these statements is clearly not true. This is conformed by testimony of Libanius, a wit-

ness of the time involved in the defence of the religious and cultural interests of Hel-

lenism, who says that the temples stayed open and sacrifices continued until they were

forbidden by Valentinian and Valens: «After his (Julian’s) death in Persia, the liberty of

sacrificing remained for some time: but at the instigation of some innovators, sacrifices

were forbidden by the two brothers» 63. The fact that sacrifices were not forbidden is wit-

nessed indirectly by the Christian authors’ silence about the matter, as they only mention

Jovian’s measures in favour of Christianity. In any case, even if only bloodless sacrifices

were allowed, as in Valentinian and Valens time, that and the fact the temples stayed open

was great progress coming from a Christian emperor and above all taking into account the

aspect anti-pagan legislation had acquired under Constantius.

59 A law of Constantius’s ordered them to be closed (CTh 16, 10, 4) , although the text in the Theo-dosian Code does not include the full regulations, so it is likely that the law did not aim primarily to closethe temples, but to avoid any improper act in them.

60 Although Eus. VC. 4, 25 says that Constantine legislated against pagan sacrifice in 324, the law isnot extant. If it existed, it must have had only a local effect. Vid. now Moreno Resano, Constantino y loscultos tradicionales, 143. Sacrifices were banned by Constantius, CTh 16, 10, 2; 10, 4; 10, 6. On theirrevival by Julian, S. Bradbury, Julian’s Pagan Revival and the Decline of Blood Sacrifice, Phoenix, 49(1995), 331-356; N. Belayche, Sacrifice and Theory of Sacrifice during the ‘Pagan Reaction’: Julianthe Emperor, in A. I. Baumgarten (ed.), Sacrifice in Religious Experience, Leiden 2002, 101-126, whoclaims that the challenge to Christianity does not explain by itself Julian’s interest in encouraging sac-rifices, and this was due to his profound spiritual convictions. Vid. also N. Belayche, Realia versus leges?Les sacrifices de la religion d’État au IVe siècle, in S. Georgoudi - R. K. Piettre - F. Schmidt (eds.), Lacuisine et l’autel: les sacrifices en question dans les sociétés de la Méditerranée ancienne, Turnhout2005, 343-370, who shows that there was no ban or systematic persecution of sacrifices until the latefourth century.

61 Amm. 25, 6, 1: Quae dum ultro citroque ordinantur, hostiis pro Ioviano extisque inspectis.62 Socr. HE 3, 24.63 Lib. Or. 30, 7, although in Ep. 1147 Libanius seems to suggest that blood sacrifices had been

banned. This contradiction made some think, like J. Curran, Pagan City and Christian Capital: Romein the Fourth Century, Oxford University Press 2000, 198, with n. 208, that sacrifices had indeed beenbanned in the first months of Jovian’s government, but this measure was not effective and sacrificescontinued to be made. Valentinian and Valens’s law referred to here is not extant.




It is usually supposed that Jovian abolished Julian’s pro-pagan measures 64, but this is

a gratuitous supposition. At least at first, and except for the practices Themistius mentions,

i.e. black magic and divination, none of Julian’s measures were repealed as far as we

know. Only in a later stage of his rule did Jovian abolish some of them, firstly the

conflictive School Law, in a decree of 11 January 364 65. However, rather than strictly

religious motives, behind this measure was the wish to correct a clear excess of Julian’s

anti-Christian policy, which had produced the emphatic rejection not only of the

Christians but also of the pagans. One month later, on 14 February, he revoked Julian’s

law that had established the return to the pagan temples of the properties that, during the

reigns of Constantine and his sons, had become res privata principis 66. Once again, it

was not primarily religious reasons that led Jovian to take this measure, but economic

ones. There is some evidence, as we shall see below, such as the limitations in the return

of the annonae to the churches, to think the imperial funds were short of resources.

However, although Jovian did not take any active measures against paganism, he stopped

supporting the pro-pagan policies of Julian, who had involved himself personally in

encouraging worship and restoring abandoned temples 67.

Themistius makes no allusions to anything in the tolerance edict related to Christia-

64 According to Dagron, L’Empire Romain d’Orient au IVe siècle, 174-175. Thus, B. Enjuto Sánchez,Las disposiciones judiciales de Constantino y Juliano a propósito de las tierras de los templos paganos,Gerión, 18 (2000), 407-423: 420-421.

65 CTh 13, 3, 6, attributed to Valentinian and Valens: Impp.Valentinianus et Valens AA.. ad Mamer-tinum praefectum praetorio. Si qui erudiendis adulescentibus vita pariter et facundia idoneus erit, velnovum instituat auditorium vel repetat intermissum. dat. iii id. ian. divo Ioviano et Varroniano conss («Ifany man should be found equally suitable in character and eloquence for teaching the youth, he shall ei-ther establish a new auditorium or seek again one that has been abandoned»). Vid. supra n. 15 and 16.

66 CTh 10, 1, 8 (4 February 364): Universa loca vel praedia, quae nunc in iure templorum suntquaeque a diversis principibus vendita vel donata sunt retracta, ei patrimonio, quod privatum nostrumest, placuit adgregari (iungendae 11, 30, 32; 11, 36, 15) («It is our pleasure that all parcels of land andall landed states which are now the property of temples and which have been sold or donated by vari-ous Emperors shall be reclaimed and added to Our private patrimony»). Julian’s law has not been pre-served, but it is referred to in Amm. 22, 5, 2; Lib. Or. 17, 7; 18, 126; Hist. Aceph. 3; Soz. HE 5, 3, 1, andalso Valentinian and Valens’s law which reiterates Jovian’s: CTh 5, 13, 3 (Milan, 23 December 364): Uni-versa, quae ex patrimonio nostro per arbitrium divae memoriae Iuliani in possessionem sunt translatatemplorum, sollicitudine sinceritatis tuae cum omni ad rem privatam nostram redire mandamus («Allproperty which was transferred from Our patrimony and placed in possession of temples by the author-ity of the Emperor Julian of sainted memory, We order to be restored with full legal title to Our privypurse, through the offices of Your Sincerity»). G. Bonamente, Le città nella politica di Giuliano l’A-postata, AFLM, 16 (1983), 35-96 puts forward the hypothesis that these regulations about the temples’properties had been included in CTh 10, 3, 1, where instructions are given about the assignation of pub-lic properties. Vid. Germino, La legislazione dell’imperatore Giuliano, 173-174 with n. 107.

67 Julian forced the people who had destroyed temples or who possessed goods taken from them,should repair them or return those items, Greg. Naz, Or. 4, 90; Hist. Aceph. 3, 1; Soz. HE 5, 5; Theod.HE 3, 7, confirmed by Julian himself Ep. 80 and Lib. Or.18, 126; saved his favours for mostly pagancities, Soz. HE 5, 3, 4, and withdrew the statute of city from those that had not fulfilled his expectationin the revival of worship, like Caesarea (Greg. Naz. Or. 4, 92; Soz. HE 5, 4, 1-5) and Gaza (Soz. HE 5,3, 6-7). On the restoration of temples in Julian’s time, J. Arce, Reconstrucciones de templos paganos enépoca del emperador Juliano (361-363 d. C.), RSA, 5 (1975), 201-215; A. N. Oikonomides, Ancient In-scriptions Recording the Restoration of Greco-Roman Shrines by the Emperor Flavius Claudius Iu-lianus (361-363 A.D.), AncW, 15 (1987), 37-42.

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nity, but this must have contained some mention to the freedom of the Christians. So-

zomen says that, after making the treaty with the Persians, Jovian,

Having learned from experience that the impiety of his predecessor had excited thewrath of God, and given rise to public calamities, he wrote without delay to the gov-ernors of the provinces, directing that the people should assemble together withoutfear in the churches, that they should receive the Christian faith as the only true reli-gion 68.

Part of this account is true. The Historia Acephala, which Sozomen depends on here,

states that in Alexandria they received notification communicating that Christians were

free to practice their religion. This occurred a month after the official news of Julian’s

death had arrived:

Now Olympus the same prefect, in the month Mensor, xxvi day, coss. Julianus Au-gustus IV and Salustius (19 August 363), announced that Julian the emperor was dead,and that Jovian a Christian was emperor. And in the following month, Thoth xviii (16September), a letter of the emperor Jovian came to Olympus the prefect that only themost high God should be worshipped, and Christ, and that the peoples, holding com-munion in the churches, should practise religion 69.

But the Historia Acephala only includes part of the copy sent to the governors with

the text of the law, which was longer, and makes no mention of religious freedom or re-

ference to traditional religion. Drafted by a priest of Alexandria who worked directly

with the archives of the church, the Historia Acephala contains a great deal of infor-

mation, accurately dated, but it is an apologetic text, aimed at justifying Athanasius of

Alexandria’s innocence and his actions, and it should be understood in that context 70.

The author includes the news of the freedom of the Christians decreed by Jovian to jus-

tify Athanasius’s illegal return, after he had been in exile in Antinoe (Thebaid) follow-

ing Julian’s edict of his expulsion from Alexandria a year earlier 71, and from which he

68 Soz. HE 6, 3, 3. Trans. The Nicene and Post-Nicene Fathers, Second Series, vol. II, Socrates, So-zomenus. Church Histories, Grand Rapids, Mich. 1989 (reimp.), 347-348.

69 Hist. Aceph. 4, 1. Trans. The Nicene and Post-Nicene Fathers, Second Series, vol. IV. Athanasius.Select Works. Letters, Grand Rapids, Mich. 1987 (reimp.), 498. The dates I give in the translation arethe ones established by A. Martin, Histoire “Acéphale” et Index Syriaque des Lettres Festalesd’Athanase d’Alexandrie, SCh 317, Paris 1985, 153.

70 The Hist. Aceph. describes the circumstances and duration of Athanasius’s last three periods ofexile, the establishment in Alexandria of the Arian bishop George, the failed attempt of Lucius to benamed bishop at the same see, as well as a general balance of the years of Athanasius’s episcopate after328. On its historical value, vid. the introduction in A. Martin, Histoire “Acéphale”, 19-106.

71 Julian’s edict on the return of exiles from Constantius’s time (Iul. Ep. 114) allowed Athanasius toreturn to Alexandria on 21 February 362 (Hist. Aceph. 3, 3). Later, in October of the same year, Julianordered him to be expelled when Athanasius wanted to recover the episcopal throne (Iul. Epp. 110, 111,112; Hist. Aceph. 3, 5). At first, Athanasius went to Chereu, 30km from Alexandria, and later went toAntinoe in Thebaid, where he sheltered among the monks (Hist. Aceph. 3, 3; 4, 3); two of his priests,Paulus and Astericius, were also sent into exile in Andropolis (Hist. Aceph. 3, 5-6). On these events inAthanasius’s life, T. D. Barnes, Athanasius and Constantius. Theology and Politics in the Constantinian




could not return without official authorisation. Athanasius, however, left Thebaid as

soon as he heard the news of Julian’s death, at the same time as he knew that the new

emperor was Christian 72. He returned secretly to Alexandria (on an unmentioned date)

and on 6 September he left, equally secretly, by sea to meet Jovian in Hierapolis and

defend his cause 73. It is clear that Athanasius had left Thebaid illegally, as Jovian had

not revoked his exile, which is shown by the fact that he returned to Alexandria in se-

cret and that he set off on his voyage when the tolerance edict still had not been pub-

lished in Egypt, as that happened on 16 September, ten days after his departure. Only

when Jovian gave him a letter could he take possession of the Church of Alexandria 74.

The author of the Historia Acephala, however, wanted to put on record that when he

abandoned his exile, Athanasius already knew that Jovian was a Christian. He then

includes the news of the freedom edict for Christians and later the news of Athana-

sius’s return, giving readers the impression that he was legitimized to leave exile and

move freely. There was no point in mentioning that religious freedom was also granted

to followers of traditional cults, as the aim was simply to legitimize Athanasius’s

actions.

The claim in the Historia Acephala that Jovian’s letter to the prefect Olympus

established that only the highest God should be honoured together with Christ also has

an apologetic aim. It is wrong that Jovian established Christianity as the only religion, but

to mention honouring jointly God the Father and God the Son was a veiled attack on

Arianism, which established a distinction in nature and a difference in rank between both.

The Historia Acephala gives priority to the Catholic version – that Christ was begotten

and not the creature of a creator, out of the same substance as the Father – which was

favourable to Athanasius. Sozomen, who describes the events nearly a century later, when

Arianism was no longer a significant problem in the East, simplifies that part and says

generically to theion.

Based on the account in the Historia Acephala, which is very precise in its chrono-

logical order, it is possible to propose a date for the tolerance edict. Julian died on 26

June and the official news reached Alexandria nearly two months later (19 August). The

Empire, Harvard University Press 1993, 155-159; A. Martin, Athanase d’Alexandrie et l’église d’Egypteau IV siècle (328-373), Rome 1996, 539-540, 565.

72 Hist. Aceph. 4, 3. There is a tradition about Julian’s death and the rise to the throne of a Christiansuccessor that says that, when Athanasius was in Antinoe, the monks Theodorus and Pammon visitedhim to hide him. Athanasius learnt of Julian’s death from Theodorus, who had a vision the same day thatit happened. Theodorus would have advised him to leave Thebaid and go in secret to the new emperor,who would receive him ‘legitimately’ and allow him to return to Alexandria (Athan. Ep. Ammonis, 34).In another tradition, it was Didymus the Blind who heard the news of Julian’s death in a dream, with theorder of letting Athanasius know (Pall. Hist. Laus. 4, 4; Soz. HE. 6, 2, 7). For these different versions,Martin, Histoire “Acéphale”, 195, n. 94 and 95; Eadem, Athanase d’Alexandrie, 572.

73 Hist. Aceph. 4, 4.74 This very brief letter, also referred to by Socr. HE 3, 14, has been preserved (P. G. 26, 813). In it,

Jovian pronounces his admiration for the achievements of Athanasius, whom he sees as being persecuted,praises his zeal for the orthodox faith and grants him the freedom to return to his post as bishop and tohis church.

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news of the tolerance edict arrived on 16 September. If that was approximately two

months after the edict was issued, this means it can be dated between mid-July and mid-

August 363 – at the start of Jovian’s reign, as Themistius says.

Jovian, the civilis princeps

Pagans and Christians alive agree that Jovian was a moderate emperor with a

‘civilized’ political style 75. Eutropius, who must have known him personally, as he

accompanied Julian on the Persian campaign 76, does not mention his beliefs. In general

Eutropius avoids discussing religious matters with the exception of Julian’s case, and he

defines Jovian as «inclined to equity and liberal by nature» 77. Ammianus who is highly

critical and not at all impartial about Jovian’s personal qualities and as a governor 78,

says in the portrait that concludes the account of his reign that he was «devoted to the

Christian doctrine and sometimes paid it honour (…), moderately educated, of a kindly

nature» 79. The same assessment can be found in Christian historiography. Gregory of

Nazianzus, who had been terribly critical of Julian 80, was pleased with the change of

regime and said that Jovian was ‘pious and civilized’ (eusebes kai hemeros) 81, and

Theodoret describes him similarly as hemerotes 82 and of a ‘magnanimous spirit’ (psichen

75 On the ideal of civilis princeps, which becomes important as a political model in the second halfof the fourth century, and which Julian played an important role in shaping, V. Neri, Costanzo, Giulianoe l’ideale del civilis princeps nelle ‘Storie’ di Ammiano Marcellino, Roma 1984; A. Marcone, Giulianoe lo stile dell’imperatore tardoantico, in Giuliano imperatore: le sue idee, i suoi amici, i suoi avversari(Atti del Convegno Internazionale di Studi. Lecce 10-12 dicembre 1998, Rudiae 10), Lecce 1998, 43-58.

76 Eutr. Brev. 10, 16.77 Eutr. Brev. 10, 18: Nam et civilitati propior et natura admodum liberalis fuit.78 Vid. supra n. 1.79 Amm. 25, 10, 15: Christianae legis idem studiosus et non numquam honorificus (...) mediocriter

eruditus magisque benivolus.80 His orations 4 and 5, written shortly after Julian’s death, attacked him severely, which influenced

the later Christian interpretation of Julian’s character and his reign. Vid. the edition and the commentsin L. Lugaresi, Gregorio di Nazianzo. Contro Giuliano l’Apostata. Orazione IV, Firenze 1993; Idem, Lamorte di Giuliano l’Apostata. Orazione V, Firenze 1997. The orations and the relationship between Ju-lian and Gregory of Nazianzus have been the object of several studies, including, J. Bernardi, Un réquisi-toire: les invectives de Grégoire de Naziance contre Julien, in R. Brown-J. Richer (eds.), L’empereurJulien, de l’histoire à la légende (331-1715), I, Paris 1978, 89-98; U. Criscuolo, Gregorio di Nazianzoe Giuliano, in Talariskos. Studia Graeca Antonio Garzya sexagenario a discipulis oblata, Napoli 1987,165-208; S. Elm, Hellenism and Historiography: Gregory of Nazianzus and Julian in Dialogue, Jour-nal of Medieval and Early Modern Studies, 33 (2003) 493-515.

81 Greg. Naz. Or. 21, 33. I translate hemeros according to its original meaning (‘civilized’, ‘mo-derate’), although it could equally be translated as ‘tolerant’, as does J. Mossay, Grégoire de Nazianze.Discours 20-23. Introduction, texte critique, traduction et notes, SCh 270, Paris 1980, p. 18. As shownby J. Bouffartigue, L’empereur Julien était-il intolérant?, 1-14, hemeros, together with other terms likepraos, khrestos and epieikos, belong to the vocabulary of tolerance, a concept for which there was nospecific word in Antiquity.

82 Theod. HE 4, 5, 1.




megalophrona), who opposed impiety (asebeia) with freedom of speech (parrhesia).

However, Theodoret is referring to one part of freedom, that which concerned

Christians 83. The fact that Jovian kept around him some of Julian’s most distinguished

and significant advisors and collaborators, such as the neo-Platonic philosophers

Maximus of Ephesus and Priscus 84, and the praetorian prefect for the East, Secundus

Salutius, who held that post, although not continuously, between 361 and 367 85, is proof

of the moderation of the new emperor’s policies. Other people near Julian flourished

under Jovian, such as the four diviners (Eueterius, Hilarius, Patricius and Simonides),

later brought to justice for joining Theodorus’s conspiration in 371/372 86.

Historiography attributes a single episode of anti-pagan violence to Jovian. While he

was in Antioch, and encouraged by his wife, Jovian burnt down a temple built by Hadrian

and turned into a library by Julian. However, the account, fragmentary and coming from

a later source, the Chronicle of John of Antioch in the seventh century 87, is not worthy of

much credibility and probably reflects the little sympathy the Antiochians felt for Jovian.

John of Antioch, who acknowledges Jovian’s qualities as an affable and open-handed

ruler, states that the Antiochians were afraid the emperor would surrender the city to the

Persians, as he had done with Nisibis:

Therefore, they (the Antiochians) mocked him in ditties, parodies and in the so-calledfamosi (lampoons) because of the abandonment of Nisibis. Hadrian the Emperor hadbuilt a beautiful temple for the worship of his father Trajan, which at Julian’s ordersthe eunuch Theophilus had made into a library. Jovian, at the urging of his wife,burned the temple with all the books in it, his concubines laughing and setting thefire. The Antiochians were angered at the Emperor ... and some of the pamphletsthey threw on the ground so that whoever wished could pick them up and read them,others they pasted up on walls. These said such things as, «You came back from thewar. You should have perished there», and, «Ill-omened Paris, most handsome tolook at», and so on, including, “If I do not take you and strip your clothes from you,your cloak and your tunic, which hide your shame, and send you off in haste wailingto the land of the Persians”. A certain old woman, observing that he was tall andhandsome, but learning that he was stupid, declared, «How high and deep folly». Inthe hippodrome to the amusement of all, another daring individual shouted out emptyand insipid remarks about his age, and trouble would have ensued had not a certainSalustius (i.e. the prefect Secundus Salutius) stopped the disturbance. Although itwas winter, Jovian took to the road to Cilicia and Galatia and died at Dadastana after

83 Theod., HE 4, 1, 1-4.84 Eunap. V. Soph. VII (Maximus), M. Civiletti (a cura di), Eunapio. Vite di filosofi e sofisti, Milano

2007, p. 158-159, with n. 434.85 PLRE I, s.v. Saturninus Secundus Salutius 3, 814-817.86 The mention comes from Eunap. Hist. fr. 39, who thus aimed to emphasize the tolerance of the

Christian Jovian, compared with Valens’ persecution and Theodosius I’s intolerance. Vid. R.C. Block-ley, The Fragmentary Classicising Historians of the Later Roman Empire. Eunapius, Olympiodorus,Priscus and Malchus, Liverpool 1981, I, 104 with n. 50; II, 1983, 54-56, with n. 85 and 86.

87 Ioan. Antioch. fr. 181, Müller FHG, IV, Paris 1883, 606-607.

MAR MARCOS170



eating a poisoned mushroom 88. As a leader he seems to have been affable and open-handed (koinos kai eleutherios) 89.

An inscription commemorating the destruction of a holy place and pagan altars in

Corfu, and their later conversion to a church, mentions Jovian as the dedicator 90.

However, this is clearly an imposture as the emperor was never on the island. Perhaps the

dedicator, to sanction the occasion, used Jovian’s name, knowing that he was a

Christian 91. At the same time, there are hardly any accounts of any violent anti-pagan

reactions on Julian’s death. Libanius says that some enemies of his had denounced him

to Jovian, alleging that he was constantly mourning Julian’s death 92, and in a letter he asks

one friend to protect another whose life was in danger because of his commitment to

paganism 93. But these must have been isolated incidents and we have no reason to believe

they were instigated or consented by the emperor 94.

Christian historiography confirms that at least at first, Jovian applied moderation

and impartiality to the management of ecclesiastical affairs. Whereas, the activity of dif-

ferent Christian factions had remained at a low level during Julian’s time, deprived of

imperial intervention 95, Jovian’s arrival renewed ecclesiastical upheaval. The leaders

of the different churches struggled to get ahead of the others so that the new emperor

would support their cause 96. We have already seen that, as soon as he heard about Ju-

lian’s death, Athanasius hurried to meet Jovian, to solve his own problem and defend

the Nicene cause. Before their meeting, which took place in Hierapolis in Syria, two

Anomean bishops, Candidus and Arrianus 97, «being relatives of the emperor, went to

88 Several explanations were given for his death, including poisoning, but most sources agree that thecause was the fumes from the new paint in the room where he slept, Amm. 25, 10, 13; Eutrop. Brev. 10,18; Aur. Vict. Epit. Caes. 43; Ruf. 2, 1; Socr. HE 3, 26, 1-5; 4, 1, 1 (giving the exact date, 17 February364); Soz. HE 6, 6, 1; Theod. HE 4, 5; Philost. HE 8, 8.

89 Eunap. Hist. fr. 29, 2, trans. Blockley, II, 46-47. The Antiochians had behaved similarly with Ju-lian, as he recalls and censures in his Misopogon. Vid. A. Marcone, Il conflitto fra l’imperatore Giulianoe gli antiocheni, A&R, 26 (1981), 142-152; S. N. C. Lieu, The Emperor Julian. Panegyric and Polemic,Liverpool University Press 1986, 48-59; and recently J. Torres, Actitudes de intolerancia político-reli-giosa: el emperador Juliano y el obispo Juan Crisóstomo en conflicto, in M. Marcos-R. Teja (eds.), Tol-erancia e intolerancia, 101-121.

90 IG IX, 1, no. 721, in Geffcken, The Last Days, 159.91 Vanderspoel’s assumption in Themistius and the Imperial Court, 152, that Jovian «did not instigate

the event, although he allowed it to occur» is gratuitous.92 Lib. Or. 1, 138.93 Lib. Ep. 1425 (154 Bradbury).94 On the anti-pagan reaction, which Christian historiography exaggerates, vid. supra n. 43.95 This is confirmed by Soz., HE. 6, 4, who says that the Christians had remained united under threat.

However, several councils had been held under Julian, in Paris (in 361), Rome and other places in theWest (about which we have little information), in Alexandria (in 362) and Antioch (in 362). Vid. M. Si-monetti, La crisi ariana nel IV secolo, Roma 1975, 353-372.

96 Socr. HE 3, 24. Cfr. Soz. HE 6, 4, 1; Greg. Naz. Or. 21, 33.97 These had recently been made bishops of Lydia and Ionia by Aetius and Eunomius, Philost. HE

8, 2.




visit him in Edessa 98 and hindered Athanasius in his efforts to win the emperor over.

The emperor, however, reserved the claims made by both parties for a common court

of inquiry without giving a clear decision in favour of either side for the moment» 99.

Socrates gives details of the petitions made by the different sects that followed, during

Jovian’s stay in Antioch (from October 363) 100. The Macedonians, headed by Basil of

Ancyra, presented a petitio with seven signatures, asking that anyone who claimed that

the Son was different from the Father should be expelled from the churches, which they

would occupy in their place. The emperor replied, «I abominate contentiousness, but I

love and honour those who extend themselves to promote unanimity”. When this be-

came known, concludes Socrates, those who wanted to cause disturbances calmed

down. However, the fact was that by that time Jovian had taken sides in favour of the

Nicenes and expressed his sympathy for Meletius, who had returned to Antioch in 362

during the general amnesty for bishops decreed by Julian. In accordance with this in-

clination, the Acacians (Homoeans), the rivals of the Macedonians, decided to approach

Meletius, who had broken away from them not long before. Meeting in a synod with

twenty-five bishops, they sent Jovian a letter with a declaration accepting the Nicene

creed (homoousios), with a few qualifications 101. The bishops enclosed a copy of the

Nicene creed with this letter, which shows how little Jovian knew about matters of doc-

trine and explains his prudence when taking sides in the first meeting with the

Anomeans in Edessa.

Political prudence, lack of theological training, and little, or perhaps absence of un-

derstanding of the situation of the Church in the East, divided as it was into multiple

groups with theological positions difficult to understand by a profane, explain Jovian’s ini-

tial neutrality in ecclesiastical affairs. However, this position was not going to last very

long.

98 In September 363. Jovian was in Edessa in this month, CTh 7, 4, 9 (27 September 363).99 Philost. HE 8, 6. Trans. Ph. R. Amidon, Philostorgius. Church History, Atlanta 2007, 114.100 Socr. HE 3, 25, 1-6. Cf. Soz. 6, 4, 3. As regards the Macedonians, both Socrates and Sozomen

owe their information to the ‘dossier of Sabinos’, the Homeousian bishop of Heraclea. In this, theMacedonians (semi-Arians) state they are very close to the Nicenes and critical of the Anomeans, theradical Arians. On the different groups at the time, Th. A. Kopecek, A History of Neo-Arianism,Philadelphia Patristic Foundation 1979; R. P. C. Hanson, The Search for the Christian Doctrine of God.The Arian Controversy 318-381, New York 1998, 315 ff.; L. Ayres, Nicaea and its Legacy. An Approachto Fourth Century Trinitarian Theology, Oxford University Press 2004, 133-186. For the complexsituation of the churches in Alexandria and Antioch in the months before Jovian came to power, A.Camplani, Atanasio e Eusebio tra Alessandria e Antiochia (362-363). Osservazioni sul Tomus adAntiochenos, l’ Epistula catholica e due fogli copti (edizione di Pap. Berol. 11948), in E. dal Covolo-R. Uglione-G. M. Vian (a cura di), Eusebio di Vercelli e il suo tempo, Roma 1997, 191-246; J.Zachhuber, The Antiochene Synod of AD 363 and the Beginnings of Neo-Nicenism, ZAC, 4 (2000),83-100. A good summary of the movements of the different groups to approach Jovian in MartinAthanase d’Alexandrie, 572-587.

101 As transcribed by Socr. HE 3, 25. These qualifications were that the Son was «begotten from theessence of the Father” and that He was “like the Father in essence».

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Jovian and the Church

Although Christian historiography presents Jovian as a Nicene from the start 102, it is

clear that his inclination for the homoousion arose from his proximity to Athanasius,

whom he had asked by letter for an explanation of faith. In his reply, Athanasius, who

acted in parallel with the initiative of Meletius and the Acacians, not only explained the

Trinitarian doctrine but also attacked the Arians severely, most likely with Meletius’ party

in mind 103. It is likely that Jovian would have asked all groups for a similar explanation

of faith, but this does not mean that he was impartial. Nicene historiography insists on

Jovian’s tolerance. Socrates says that he attempted to unite different Christian groups

gently and with persuasive words, announcing that he would not cause trouble for anyone

for their religious feelings, that he greatly esteemed anyone who fostered unanimity in the

Church 104. Gregory of Nazianzus confirms this spirit of concord, but leaves it clear that

Jovian took sides:

He enquired into the truth of our faith which had been torn asunder, confused, and par-celled out into various opinions and portions by many; with the intention, if it were pos-sible, of reducing the whole world to harmony and union by the co-operation of theSpirit: and, should he fail in this, of attaching himself to the best party, so as to aid andbe aided by it, thus giving token of the exceeding loftiness and magnificence of hisideas on questions of the greatest moment 105.

Proof of Jovian’s partiality is his refusal to grant an audience to a group of Alexan-

drians headed by Lucius, Athanasius’s direct rival, who came to Antioch to request an

Arian bishop for their see. The Alexandrians’ petitiones against Athanasius, expressed on

30 October, were kept in the archives of Alexandria episcopal chancellery as evidence of

the favour the emperor had shown towards Athanasius, and are included within his apolo-

getic works 106. The Arians presented as many as four petitions, of which a verbal tran-

scription exists, although it is not certain that the text is a true reflection of the terms of

the interviews. The first of them was made directly to the emperor when he left the city

to attend some military exercises, at the Roman Gate:

102 Among others, Ruf. HE 2, 1; Socr. 3, 24; Theod. HE 4, 2, 3.103 Jovian's letter is no longer extant, but Athanasius alludes to it in his reply, Athan, Ep. 56 “De

fide”, P. G. 26, 813-820: 813c 1-2; cfr. Ruf. HE 2, 1. Athanasius’s letter, which is later than the syn-odal letter from Meletius and the Acacians, was probably written against them, Martin, Athanased’Alexandrie, 578-587. For a detailed study of the relationship between Athanasius and Jovian, Mar-tin Athanase d’Alexandrie, 572-589; T. D. Barnes, Athanasius and Constantius, 159-161; L. W.Barnard, Athanasius and the Emperor Jovian, Studia Patristica, 21 (1989) 384-389; Camplani, Atana-sio e Eusebio, 228-235.

104 Socr. HE 3, 25.105 Or. 21, 33. Trans, The Nicene and Post-Nicene Fathers, Second Series, vol. 7, Cyril of Jerusalem.

Gregory Nazianzen, Grand Rapids, Mich. 1952 (reimp.), 517.106 P. G. 20, 820-824. The dossier was included in the Greek version of Hist. Aceph. from where it

was extracted by Soz. HE 6, 5, 2-4. It is not extant in the Latin version.




The Arians: ‘May it please your Might and your Majesty and your Piety hear us’. TheEmperor: ‘Who are you and where from?’ The Arians: ‘Christians, my Lord’. The Em-peror: ‘Where from and from what city?’ The Arians: ‘Alexandria’. The Emperor:‘What do you want?’ The Arians: ‘May it please your Might and your Majesty give usa bishop’. The Emperor: ‘I ordered the former one, whom you had before, Athanasius,to occupy the See’. The Arians: ‘May it please your Might: he has been many yearsboth in banishment, and under accusation’. Suddenly a soldier answered in indignation:‘May it please your Majesty, enquire of them who they are and where from, for theseare the leavings and refuse of Cappadocia, the remains of that unholy George 107 whodesolated the city and the world’. The Emperor on hearing this set spurs to his horse,and departed to the Camp’108.

The transcription of the other three petitions follows, where the Alexandrians claimed

they had proofs against Athanasius, alleging his many exiles. The emperor asks them not

to speak as a crowd, but to choose a delegation of two members for each side. The

supporters of Athanasius (‘the majority’) accuse the Arians of being the followers of

George, the bishop that had desolated Egypt. The Alexandrians say they would accept

any candidate except Athanasius and Jovian puts an end to the discussion by assuring

that the matter with Athanasius was already settled. The Arians ask the emperor to

authorize the union between them and Athanasius, and he replies that that was up to

Athanasius and that they should follow his doctrine. The final petition was made by

Lucius in person at the palace gates, begging Jovian to listen to him. The emperor asked

him how he had come to Antioch, over land or by ship. Lucius answered, by ship, to

which Jovian replied it was a pity that his companions on board didn’t throw him into the

sea during the voyage. When Jovian learnt that the Arians were trying to obtain a formal

audience through the eunuchs, he had the latter tortured, pronouncing: «If anyone wants

to make a petition against Christians, let it be his fate».

Jovian also took measures in favour of the Church. Philostorgius says that he restored

the churches to their original good order, removing from them all the mistreatment to

which the Apostate had subjected them, and that he also recalled those whom Julian had

sent into exile 109. We have no further proof about the return of the exiled, apart from the

vague accounts of Christian sources 110, but this was a common measure of pardon taken

by emperors when they took office 111 and there is no reason to doubt it was so. We do not

107 George of Cappadocia had been the Arian bishop of Alexandria. Hated by both pagans and Chris-tians, he was murdered by a popular mob under Julian, Socr., HE 3, 2; Iul., Ep. 60. Vid. M. Caltabiano,L’assassinio di Giorgio di Cappadocia (Alessandria, 361 d.C.), Quaderni catanesi di studi classici emedievali, 7 (1985), 17-59.

108 Trans. The Nicene and Post-Nicene Fathers, 568-569.109 Philost. HE 8, 5. 110 Greg. Naz. Or. 21, 33; Socr. HE 3, 24; Theod. HE 4, 2, 3.111 On the exile of the Christians, vid. M. V. Escribano Paño, El exilio del herético en el s. IV d.C. Fun-

damentos jurídicos e ideológicos, in F. Marco-F. Pina - J. Remesal (eds.), Vivir en tierra extraña: emi-gración e integración cultural en el mundo antiguo, Barcelona 2004, 255-272; M. Vallejo Girvés,Obispos exiliados: Mártires políticos entre el Concilio de Nicea y la eclosión monofisita, in E. Reinhardt(ed.), Tempus Implendi Promissa. Homenaje al Prof. Dr. Domingo Ramos-Lissón, Pamplona 2000, 507-533; and the various studies in Ph. Blaudeau (ed.), Exil et relégation. Les tribulations du sage et du saint

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know when the edict was issued, but it must have been after the tolerance law, as Athana-

sius and the priests who had been banished with him returned from exile in late August

or early September 363 on their own accord, without having received any imperial in-

structions and, at least in Athanasius’s case, in secret. The latter only legalized his posi-

tion in October after meeting the emperor, who gave him a letter personally 112. We have

no information about the procedure in other cases, although the fact is that very few

Christians remained in exile when Jovian became emperor, because Julian had decreed

the return of them all in late 361 or early 362 113 and very few had been banished during

his government 114.

Several Christian sources report on the restoration of privileges to the Church 115. So-

zomen says that Jovian «restored to the churches and the clergy, to the widows and the vir-

gins, the same immunities and every former dotation for the advantage and honour of

religion, which had been granted by Constantine and his sons, and afterwards withdrawn by

Julian» 116. He also adds that Jovian wrote to the praetorian prefect Salutius with a law

(nomos) establishing the death penalty for anyone who dared to marry a consecrated virgin

or who looked at them lecherously or dared to violate them 117. As the most recent editor of

Sozomen has pointed out 118, he forgets here, or prefers to hide, that Jovian reduced the an-nonae to a third, because of the difficulty in collecting that tax, promising to increase them

when the financial situation improved 119. On 11 January 364, Jovian abolished Julian’s

School Law 120. We do not know whether he also restored other privileges of the clergy,

such as exemption of curial charges or the right of bishops to be judged by their peers 121.

durant l’Antiquité romaine et Chrétienne (Ier-VIe s. ap. J.C.), Paris 2008, especially P. van Nuffelen,Arius, Athanase et les autres: Dimensions juridiques et politiques du retour d’exil au IVe siècle, 147-175.

112 Vid. supra n. 71 and 74.113 The edict has not been preserved, but Julian refers to it in Ep. 114.435d, on 1 August 362. Hist.

Aceph. 3, 2; Ruf., HE 1, 28; Socr., HE 3, 1; Soz., HE 5, 5; Theod., HE 3, 4; Philost., HE 6, 7, mentionthis edict.

114 One of the few still in exile at the time of Julian’s death was Eleusius of Cyzicus, banished fordestroying temples and desecrating sacred places, Soz. HE 5, 15. Also Valentinian, the future emperor,who had refused to make sacrifices in the army, Ruf. HE 2, 2; Soz. HE 6, 6, 4-6; Theod. HE 3, 16, 3-4;Philost. HE 7, 7. Vid. Lenski, Were Valentinian, Valens and Jovian Confessors?

115 Ruf. HE 2, 1; Soz. HE 6, 3; Theod. HE 4, 2, 3; Philost. HE 7, 7, 40a; Mal. 13, 27.116 Soz. HE 6, 3, 4-6. Among Julian’s ‘anti-Christian measures’ were the suppression of the privileges

of the Christian clergy: Soz. HE 5, 5, 2; Theod. HE 3, 6, 5; the reinscription of the clerics in the curiae:Philost. HE 7, 4, confirmed by CTh 12, 1, 50; and the suppression of the annonae, i.e. the donation ofprovisions to the churches, Philost. HE 7, 4; Soz. HE 5, 5, 2; Theod. HE 1, 11, 3; 4, 4, 1.

117 This is the law of CTh 9, 25, 2, dated on 19 February 364, two days after Jovian’s death. On theissues raised by the date, vid. supra n. 17.

118 G. Sabbah, Sozomène. Histoire Ecclésiastique. Livres V-VI, SCh 495, Paris 2005, 260, n. 1.119 Theod. HE 4, 4.120 CTh 13, 3, 6. Vid. supra n. 16.121 Privileges that were either returned, with limitations, or reiterated, if Jovian did in fact restore

them, by Valentinian and Valens, although with limitations. A law of 12 September 364 (CTh 12, 1, 59)established that: Qui partes eligit ecclesiae, aut in propinquum bona propria conferendo eum pro se fa-ciat curialem aut facultatibus curiae cedat quam reliquit, ex necessitate revocando eo, qui neutrum fecit,cum clericus esse coepisset («If any person should choose service in the Church, he shall either make a




Jovian’s religious policy was not neutral. Although he did not take active measures

against paganism, and only suspended the policy of the revival of traditional religion,

supported and encouraged by Julian, Jovian favoured the Church, and restored to it at least

some of the privileges of the Constantinian period. Nor was he impartial in ecclesiastical

disputes, and was influenced by one side, the Nicene, and acted openly in favour of one of

the most controversial figures at the time, Athanasius of Alexandria. Jovian also showed

himself publicly as a Christian. On his coins, he once again represented the chi-rho and the

labarum 122, which Julian had replaced with pagan symbols 123.

In late 363, Jovian left Antioch to go to Constantinople, where the Senate was based

and where he would establish the imperial court. Ammianus says that the emperor left the

city with pleasure, exhausted by the many affairs he had to deal with there 124. Among

these, without doubt, the pressure of the different Christian groups. This pressure must

have continued during the journey since Athanasius, for example, did not return to

Alexandria until February 364 125, and it would certainly have worsened in Constantino-

ple, where the disputes amongst the different Christian factions were amplified by the

presence of the imperial court 126. Jovian died prematurely, on 17 February 364, without

reaching Constantinople. It is impossible to say what direction his religious policy would

have taken, but everything suggests that the neutrality of the initial months would not

have been upheld. Perhaps, as in Julian’s case, the initial tolerance would have slowly

changed during his reign toward a policy supporting one of the sides, the Christian one,

and within this towards one group, the Nicenes, which were in the minority in the East.

Therefore, Themistius thought it was appropriate to remind Jovian, in the official cere-

mony of his consulship, of the duty of maintaining the balance in religious policy that he

had announced officially at the start of his government.

Conclusion

I believe that the law of religious tolerance that Themistius alludes to in the oratio 5

really existed. Many arguments, some of them put forward by Heather and Moncur, and

others explained here, support this. This law was issued at the very beginning of Jovian’s

government, probably between the middle of June and the middle of August 363. In its

preamble it must have contained an express reference to the freedom of worship, proba-

near kinsman a decurion in his stead by transferring to him his own property, or he shall cede his prop-erty to the municipal council which he left. Of course, a person must of necessity be recalled to the mu-nicipal council if he did neither of these when he began to be a cleric»). Valentinian returned the bishops’privilege of being judged by their peers, a law that is not extant but which is recalled in Ambr. Ep. 75(21); cfr. Ep. extra coll. 7, 2.

122 On the coins from Heraclea, Thessalonica and Sirmium. RIC VIII, passim.123 Greg. Naz. Or. 4, 66; Soz. HE 5, 17, 2-4.124 Amm. 25, 10, 4.125 Hist. Aceph. 4, 4.126 On this point, a fundamental work is still G. Dagron, Naissance d’une capitale: Constantinople

et ses institutions de 330 à 451, Paris 1974.

MAR MARCOS176



bly appealing to the freedom of conscience and the illicitness of the use of coercion, fol-

lowed by certain regulations about what was or was not authorized. As concerns tradi-

tional cults, the temples remained open and public sacrifices were allowed, while magic

and divination were banned, for political rather than religious reasons. With regards to

Christianity, it is impossible to know whether the law included some other concession, in

addition to the freedom of worship. It is very likely that both the precise regulations about

traditional cults (banning magic and divination) and the Church (return of the annonae,

return of the exiled, etc,) were developed in specific legislation. In the same way, at the

beginning of his reign, Julian had decreed religious tolerance 127, and Valentinian must

have issued more than one tolerance law at the start of his government 128.

The fact that a law of tolerance did exist when Themistius delivered his speech it does

not invalidate the commonly accepted thesis that the praise of tolerance in oratio 5 is an

exhortation to Jovian to uphold those principles. Although Jovian had shown he was tol-

erant in the first months of his government, partly out of political pragmatism and partly

from conviction, he had not been neutral. He was a Christian, and presented himself as

such and although he initially kept a balance in face of the demands of the different Chris-

tian groups, soon, that is as soon as he could grasp an idea of the problem, he took sides

in favour of Athanasius and the Nicenes. He also returned to the Church at least some of

the privileges that Julian had taken away. It might well happen, and this is what

Themistius and the elites he represented must have feared, that Jovian would shift his re-

ligious policy in favour of Christianity when his regime had consolidated – this is what

happened with Julian towards paganism. However, not only the emperor but also the au-

dience celebrating the consulship, among which there were many generals and represen-

tatives of the political elite, might have been the targets of that exhortation of tolerance.

Like the bishops, Christian elites might expect and demand from the new emperor an ac-

tive policy in favour of Christianity to counterbalance Julian’s pro-pagan policies, which

would revive the conflict.

With his tolerance law, Jovian, who had reached power unexpectedly and without the

initial agreement of all, wanted to make clear the spirit of the new times. Since Julian, and

even before, since Constantine and his sons, the religious question was an essential item

on the imperial agenda, the first point on the agenda at the start of a new dynasty. It had

been so for Constantine, first with the so-called ‘edit of Milan’ and later after the defeat

of Licinius, with other similar declarations. So it had been for Julian, and for Jovian, and

it also would be so for his successor Valentinian, who opened his government with the

same declaration of tolerance, a virtue that had become a political quality, one of the at-

tributes of a civilis princeps.

127 Amm. 22, 5, 2, planis absolutisque decretis. There were probably two, one ordering the re-open-ing of temples, the renewal of sacrifices and the restoration of pagan worship, and the other decreeingfreedom for all Christians, the return of the exiled in Constantius’s time and the return of their proper-ties. Vid. supra n. 36 and 37.

128 Vid. supra n. 34.


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domenico VeraConclusioni. Paganesimi e cristianesimi fra IV e V secolo

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Emperor Jovian's Law of Religious Tolerance (a. 363)

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