Marzena Wojtczak

BETWEEN HEAVEN AND EARTH: FAMILY OWNERSHIP VERSUS RIGHTS

OF MONASTIC COMMUNITIES. THE THEODOSIAN CODE AND LATE
ANTIQUE LEGAL PRACTICE*

1. Introduction

The religiously inspired and pro-Christian legislation included in the

Theodosian Code has been studied on numerous occasions. Several laws
introduced between the years 370 and 434 demonstrate a visible trend of
recognising ecclesiastical proprietary rights. By way of contrast, the possi-
bility of receiving pious donations by Church entities is hardly discussed by
the Theodosian compilation – and even if so, it is in a rather restrictive man-
ner.1 It is only with the reign of Justinian that the legal regime concerning
donations for piae causae and venerabiles domus finally took significant

*
The article was written as part of the MAESTRO 7 research project, funded by the Polish
National Science Centre (UMO-2015/18/A/HS3/00485).
I am very grateful to Prof. Detlef Liebs and Dr Benet Salway who kindly agreed to read
the draft version of this article and shared with me their valuable comments and suggestions.
All errors and oversights, of course, remain mine. I am also enormously indebted to Mark
Letteney who made my English more palatable.
1
With an exception of the law issued by Constantine in 321 (CTh 16.2.4) as discussed below.
118 MARZENA WOJTCZAK

shape.2 This is surprising because the sources of legal practice show the
rapid spreading of the abandonment of wealth and the transfer of property
to the Church and the poor, apparently in line with New Testament texts
that urge such conduct.3 Peter Brown calls this period ‘The Age of a Camel’,
and sketches the dilemma faced by Christian communities of the later empire,
revolving around the problem of the possession of worldly goods and the
risk of failing the test of ‘passing through the eye of a needle’.4 Brown per-
suasively argues for a more balanced position, showing that the renuncia-
tion of wealth was not the only option for those seeking personal salvation.
The true renunciation of property and poverty was at the far edge of the
Christian spectrum rather than in its centre.5 Gifts to the poor as well as
donations and offerings for pious reasons – made both by the faithful and
by Church entities – could equally well draw a link between heaven and
earth. Hence, it may raise an eyebrow that laws in favour of religious gifts
are hardly represented in the Codex, and, moreover, that restrictions on
alienation of property to the benefit of the Church were introduced during
reign of Theodosius the Great, who – needless to say – made religion one of
the main subjects of imperial propaganda.
The idea behind this article is to investigate the relationship between the
legislation introduced in the field of proprietary rights assigned to various
Church entities and the practice of accumulation of wealth by the monastic

2
On the property rights of the monasteries and monks in the light of Justnian’s legislation,
see R. Orestano, ‘Beni dei monaci e monasteri nella legislazione Giustinianea’, [in:] Studi in
Onore di Pietro Francisci, vol. 3, Milan 1956, pp. 563–593.
3
However, both of these actions seem to be located at the opposing edges of the spectrum.
For relevant fragments in New Testament, see most of all Matthew 19:21; cf. Mark 10:21; Luke
18:22; see also Luke 12:33. For literature (with further references), see e.g. L.W. Countryman,
The Rich Christian in the Church of Early Empire: Contradictions and Accommodations, New
York – Toronto 1980, esp. pp. 78–80. Cf. also Acts 4:32–37; 2:43–45; D. J. Kyrtatas, The Social
Structure of the Early Christian Communities, London – New York 1987, pp. 38–41. For miti-
gation of the idea of voluntary poverty in early Christianity, see P. BROWN, Poverty and Lead-
ership in the Roman Empire, Hanover – London 2002, esp. pp. 17–18.
4
See P. Brown, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of
Christianity in the West, 350–550 ad, Princeton 2012, passim.
5
See R. S. Bagnall, ‘Monks and property: Rhetoric, law, and patronage in the Apophtheg-
mata Patrum and the papyri’, GRBS 42 (2001), pp. 7–24, at p. 21.
 BETWEEN HEAVEN AND EARTH 119

communities in late antique Egypt. On the one hand, among the literary
sources the predominant theme concerning Egyptian monasticism is the
idea of voluntary poverty and renunciation of worldly affairs aimed at the
pursuance of a contemplative life. On the other hand, the papyri offer insight
into monastic life that does not seem to have been entirely detached from
the outside world, but also led to the accumulation of capital and acquisition
of land estates, and sometimes quite large ones.6 In this vein, the laws of
Valentinian I and Theodosius II clearly indicate that monks and nuns con-
tinued to own property without disturbance after undertaking religious
life.7 In addition, Theodosius the Great and later emperors restricted the
freedom of certain groups of citizens to disown their property, rendering
the Christian ideal of voluntary poverty not always feasible.8 It is only with
Justinian that certain rules regarding monastic poverty are shaped and set
by the secular power.9 Earlier imperial legislation is not so much indifferent

6
According to the literary sources the rules on the property acquisition and its management
differed for anchoritic lauras and cenobitic monasteries. A typical representative of the early
monastic milieu was expected to abandon his entire property and embrace the life in voluntary
poverty. Admittedly, we also find texts that mention monks selling the effects of their work –
performed while contemplating God and praying– in order to earn a living. It is, however, only
with the papyrological evidence that our perception of everyday existence of Egyptian monks
changes significantly. The papyri prove that owning property was common in the monastic
movement (regardless of the form of organisation of monastic community as well as for indi-
vidual monks). For more, see e.g. E. Wipszycka, ‘Resources and economic activities of the
Egyptian monastic communities (4th–8th century)’, JJurP 41 (2011), pp. 159–263; eadem, Moines
et communautés monastiques en Égypte (IVe–VIIIe siècles) [= JJurP Sup 11], Warsaw 2009, pp.
471–565; Bagnall, ‘Monks and property’ (cit. n. 5), pp. 7–24; J. E. Goehring, Ascetics, Society
and the Desert: Studies in Early Egyptian Monasticism, Harrisburg 1999, pp. 39–52. On the prac-
tical dimension of this division in the papyrological evidence, see also further in n. 90.
7
See most of all the provisions of CTh 5.3.1, also discussed below. As also noted by Bagnall,
the fact that the attestations for monks’ property and financial transactions are so extensive
suggest that we cannot be dealing with an entirely illegal situation, see R. S. Bagnall, Egypt
in Late Antiquity, Princeton 1993, pp. 293–303, esp. p. 298.
8
Extensively on that A. Laniado, ‘The early Byzantine state and the Christian ideal of vol-
untary poverty’, [in:] M. Frenkel & Y. Lev (eds.), Charity and Giving in Monotheistic Reli-
gions, Berlin 2009, pp. 15–43.
9
In the wake of introduced laws monastic poverty was shaped for the first time by the sec-
ular powers. These rules interfere with and limit the property rights belonging to Roman cit-
izens. In the light of these provisions – with certain exceptions – a prospective monk dis-
120 MARZENA WOJTCZAK

to the issue as it seems to reject (or at least ignore) the fundamental tenet of
poverty in the rising monastic movement.10
I would like to verify how the constitutions devoted to these issues fit
into the broader legislative context of the Theodosian Code. Here, both the
political dimension of this compilation as well as the plausible influence of
the imperial laws on the legal practice will be taken into consideration. The
incentive for this study is to check for any conflict between the principles of
classical Roman law in the field of private ownership and imperial legisla-
tion included in the Codex Theodosianus. Giorgio Barone-Adesi observed the
tension that took place between the Christian communities and their corpo-
rations that were allotted ever broader privileges and the Roman principle
of preservation of the property within the family unit.11 There is, however,
still some room left for discussion since not all the data easily adds up to an
unequivocal conclusion. In this analysis, the Code is treated as a measure for
taking a stand by the legislator in the dispute between the will of the owner,
recognition of the rights of the heirs and family members, and finally the
privileges granted to the religious consortia.

posed of his property only until the moment of entering the monastery. The aim was to
assure that the property not alienated by the monks before joining the monastery would
belong to the latter. Cf. most of all: Nov. 5.5; 22.5; 76; 123.38; 133.1. Still, it seems that the intro-
duced set of rules did not refer to anchorites. For more on the Byzantine legislation on
monastic poverty, see e.g. A. Steinwenter, ‘Byzantinische Mönchstestamente’, Aegyptus 12
(1932), pp. 55–64; Orestano, ‘Beni dei monaci’ (cit. n. 2), pp. 563–593; see also G. Barone-
Adesi, ‘Il sistema giustinianeo delle proprietà ecclesiastiche’, [in:] E. Cortese (ed.), La pro-
prietà e le proprietà, Milan 1988, pp. 75–120. Earlier literature on the subject in Laniado,
‘Early Byzantine state’ (cit. n. 8), p. 15 n. 2. For an outline of legislation concerning monks in
the reign of Justinian, see A. Hasse-Ungeheuer, Das Mönchtum in der Religionspolitik Kaiser
Justinians I, Berlin – Boston 2016.
10
We may observe in this case a rather slow endorsement of the general idea of monastic
poverty into imperial legislation. The property rights of individual monks appear to remain
intact in the Codex Theodosianus. Indeed, even Justinian’s legislation regarded only a fraction
of the existing monastic milieu, namely the cenobitic movements. On that also Laniado,
‘Early Byzantine state’ (cit. n. 8), pp. 15–17.
11
See G. Barone-Adesi, ‘Dal dibattito cristiano sulla destinazione dei beni economici alla
configurazione in termini di persona delle venerabiles domus destinate piis causis’, Atti dell’
Accademia Romanistica Costantiniana 9 (1993), pp. 230–265.
 BETWEEN HEAVEN AND EARTH 121

2. Ecclesiastical proprietary rights:

the issue of pious donations in Codex Theodosianus

The first law included in the Theodosian Code that granted the general pos-
sibility to designate the Church as the beneficiary of a legacy or fideicom-
missum was introduced by Constantine in 321. CTh 16.2.4 states clearly that
a dying person may leave whatever he or she wishes to ‘the most holy and
venerable Catholic council’.12 The formulation of the constitution calls for
attention since it refers to an organisational body of the Church that is vest-
ed with capacity to acquire property rights.13 Caroline Humfress recently
hinted at the possible origin of the issuance of CTh 16.2.4. What may lie
behind the constitution are the inheritance strategies and disputes resulting
from the formulation of the testator’s intent. If one assumes that the Con-
stantine’s incentive for introducing the constitution originated in the doubts
or opposition of the statutory heirs with regard to the effectiveness of the
bequests made to the sanctissimo catholicae venerabilique concilio, then the
reason for these doubts could not only be the matter of the Church’s testa-

12
CTh 16.2.4 (Imp. Constantinus a. ad populum): Habeat unusquisque licentiam sanctissimo
catholicae uenerabilique concilio decedens bonorum quod optauit relinquere. Non sint cassa iudicia.
Nihil est, quod magis hominibus debetur, quam ut supremae uoluntatis, post quam aliud iam uelle
non possunt, liber sit stilus et licens, quod iterum non redit, arbitrium. Later included in CJ 1.2.1.
13
This could contribute to a long-lasting discussion concerning the existence of legal per-
sons in case of Church institutions, see e.g. R. Orestano, Il ‘problema delle persone giuridiche’
in diritto romano, Turin 1968, esp. pp. 77–90; more recently on that matter (with further refer-
ences), see J. M. Blanch Nougés, ‘Sobre la personalidad jurídica de las “fundaciones”en de-
recho romano’, Revista jurídica Universidad Autónoma de Madrid 16 (2007), pp. 9–28; idem, ‘La
responsabilidad de los administradores de las piae causae en el derecho romano justinianeo’,
RIDA 49 (2002), pp. 129–146. It seems that if we were to identify any legal concept that could
be approaching our modern notion of legal personality in late antiquity, we would probably
point at the Church entities such as bishoprics, monasteries, orphanages, infirmaries, hospices,
and houses for old and poor. See in similar manner J. Urbanik, ‘P. Oxy. LXIII 4397: The
monastery comes first or pious reasons before earthly securities’, [in:] A. Boud’hors et al.
(eds.), Monastic Estates in Late Antique and Early Islamic Egypt: Ostraca, Papyri and Essays in
Memory of S. Clackson [= American Studies in Papyrology 46], Cincinnati 2009, pp. 225–235, at
p. 227 (with reference to further literature). On the controversies concerning the verbal for-
mulation ‘the most holy and venerable Catholic council’ in CTh 16.2.4, see C. Humfress, ‘Gift-
giving and inheritance strategies in late Roman law and legal practice (fourth to sixth cen-
turies ce)’, [in:] O.-A. Rønning, H.M. Sigh & H. Vogt (eds.), Donations, Strategies and
122 MARZENA WOJTCZAK

mentary capacity, but also the possibility of challenging the testamentary

dispositions. The legislator’s concern that is clearly outlined in the constitu-
tion is that the testator’s ‘judgement’ should not be ineffectual. Already in
Valerius Maximus’ restitution edict from 312 and Constantine’s Edict of Milan
from 313, the Christian ‘bodies’ (corpora), are encumbered with proprietary
rights.14 Humfress posed a question whether, in line with these provisions,
‘the most holy and venerable Catholic council’ had testamentary capacity,
and whether relatives of the deceased person could in fact challenge the will
on the grounds of the wording used. To be more specific, since there is no

Relations in the Latin West and Nordic Countries, London – New York 2017, pp. 9–27, at pp. 15–
16. Cf. also T. Barnes, Constantine: Dynasty, Religion and Power in the Later Roman Empire,
Chichester 2011, pp. 139–140.
14
The Greek translation of restitution edict is provided by Eusebius, Eccl.hist. 9.10.11: ἵνα εἴ
τινες οἰκίαι καὶ χωρία ἃ τοῦ δικαίου τοῦ τῶν Χριστιανῶν πρὸ τούτου ἐτύγχανον ὄντα, ἐκ τῆς
κελεύσεως τῶν γονέων τῶν ἡµετέρων εἰς τὸ δίκαιον µετέπεσεν τοῦ φίσκου ἢ ὑπό τινος κατε-
λήφθη πόλεως, εἴτε διάπρασις τούτων γεγένηται εἴτε εἰς χάρισµα δέδοταί τινι, ταῦτα πάντα εἰς
τὸ ἀρχαῖον δίκαιον τῶν Χριστιανῶν ἀνακληθῆναι ἐκελεύσαµεν ἵνα καὶ ἐν τούτῳ τῆς ἡµετέρας
εὐσεβείας καὶ τῆς προνοίας αἴσθησιν πάντες λάβωσιν. Accordingly, the passus of the Edict of
Milan found in Lactantius (De mort. pers. 48.9) is also provided in Greek translation by Euse-
bius. See Lact., De mort. pers. 48.9: Et quoniam idem Christiani non [in] ea loca tantum ad quae
conuenire consuerunt, sed alia etiam habuisse noscuntur ad ius corporis eorum id est ecclesia-
rum, non hominum singulorum, pertinentia, ea omnia lege quam superius comprehendimus, citra
ullam prorsus ambiguitatem uel controuersiam isdem Christianis id est corpori et conuenticulis
eorum reddi iubebis, supra dicta scilicet ratione seruata, ut ii qui eadem sine pretio sicut diximus
restituant, indemnitatem de nostra beniuolentia sperent; as well as: Eusebius, Eccl. hist. 10.5.11:
ἐπειδὴ οἱ αὐτοὶ Χριστιανοὶ οὐ µόνον ἐκείνους εἰς οὓς συνέρχεσθαι ἔθος εἶχον, ἀλλὰ καὶ
ἑτέρους τόπους ἐσχηκέναι γινώσκονται διαφέροντας οὐ πρὸς ἕκαστον αὐτῶν, ἀλλὰ πρὸς τὸ
δίκαιον τοῦ αὐτῶν σώµατος, τοῦτ᾽ ἔστιν τῶν Χριστιανῶν, ταῦτα πάντα ἐπὶ τῷ νόµῳ ὃν
προειρήκαµεν, δίχα παντελῶς τινος ἀµφισβητήσεως τοῖς αὐτοῖς Χριστιανοῖς, τοῦτ᾽ ἔστιν τῷ
σώµατι αὐτῶν καὶ τῇ συνόδῳ ἑκάστῳ αὐτῶν ἀποκαταστῆναι κελεύσεις, τοῦ προειρηµένου
λογισµοῦ δηλαδὴ φυλαχθέντος, ὅπως αὐτοὶ οἵτινες τοὺς αὐτοὺς ἄνευ τιµῆς, καθὼς
προειρήκαµεν, ἀποκαθιστῶσι, τὸ ἀζήµιον τὸ ἑαυτῶν παρὰ τῆς ἡµετέρας καλοκἀγαθίας ἐλπί-
ζοιεν. Artur Steinwenter argued that the term dikaion (as cited in the sources above and appear-
ing in the Coptic and Greek documents from late antiquity) corresponds to ius corporis and
should be interpreted as denoting a ‘legal person’, see A. Steinwenter, ‘Die Rechtsstellung
der Kirchen und Klöster nach den Papyri’, Zeitschrift der Savigny-Stiftung für Rechtsgeschich-
te. Kanonistische Abteilung 50 (1930), pp. 1–50, at pp. 31–34. In similar vein on the rights as-
signed to Church and the meaning of dikaion, see E. Wipszycka, CE, vol. 3, s.v. ‘Dikaion’(with
references to further literature). For the discussion with hypothesis proposed by Steinwenter,
 BETWEEN HEAVEN AND EARTH 123

mention of concilium in the Edict of Milan as a generic term referring to the

Christian community, Humfress wondered if the Constantine’s enactment
of 321 could have been prompted by a specific case or concrete legal prob-
lem, and suggests that its purpose was to eliminate the controversies found
in practice. To my mind, it remains beyond doubt that in the eyes of the law,
the capacity of Christians and all their ‘bodies’ (id est corpori et conventiculis
eorum)15 was recognised allowing them to possess and acquire – also through
inheritance – property. Thus, in CTh 16.2.4 Constantine reaffirms the free-
dom to establish the Church as the beneficiary of testamentary dispositions.
It is stated in the constitution that non sint cassa iudicia. This wording does
not seem to fit the declaration of nullity ipso iure (as for instance in the case
of establishing a persona incerta as an heir), and thus opens the debate whether
we could be dealing with a reference to cases where wills could be subject
to querela inofficiosi testamenti (a remedy with which close relatives of the
deceased could complaint against ‘undutiful’ will).16 Particularly in the light
of the arguments invoked in the second part of the constitution (nihil est,
quod magis hominibus debetur, quam ut supremae voluntatis, post quam aliud
iam velle non possunt, liber sit stilus et licens, quod iterum non redit, arbitri-
um) such interpretation may appear tempting, yet not certain, due to the
very general nature of the provisions.17 In my opinion, however, we should

as well as on the legal capacity and patterns of legal representation of monastic communities,
see M. Wojtczak, ‘“Legal representation” of monastic communities in late antique papyri’,
JJurP, forthcoming.
15
Lact., De mort. pers. 48.9 (cited above).
16
Closest relatives who had not been disinherited with good reason were entitled to pursue
with a claim (against persons established as heirs in the testament) aiming at bringing down
the testament as inofficiosum. In order to avoid such situation, the testator could leave no less
than a quarter of the share that the claimant would have received if the testator had died
intestate (portio debita/legitima). See e.g. R. Zimmermann, ‘Compulsory heirship in Roman
law’, [in:] K. G. C. Reid, M. J. de Waal & R. Zimmermann (eds.), Exploring the Law of Succession.
Studies National, Historical and Comparative, Edinburgh 2007, pp. 27–48.
17
It seems that close relatives should be deprived of the possibility to pursue with querela
inofficiosi testamenti by a verbatim statement in the constitution, since such provision would
be of high significance. This is more likely than to assume that one should infer it from a rather
general statement non sint cassa iudicia. A similar solution would be expected if the limita-
tion regarded the possibility to complain in case of transgressing the provisions of the lex
Falcidia. This law protected an heir if the testamentary bequests made to other entities
124 MARZENA WOJTCZAK

interpret the cited passage within the broader context of the Constantine’s
laws regarding wills. In that sense the stilus mentioned in CTh 16.2.4 would
rather refer to the abolition of the formal requirements concerning the lan-
guage of testamentary dispositions (including heredis institutio), so that the
verbal formulation could not be used against the intent of a testator.18 With

(including the Church) exceeded three quarters of net estate and hence infringed the guar-
anteed ‘Falcidian share’. Such situation would lead in consequence to a proportional diminu-
tion of the bequests so the heres institutus would always get his or her fourth. Cf. later exclu-
sion of interference on the basis of the lex Falcidia against inheritance or legacy (hereditatem
vel legatum) assigned to the captives, the poor or religious houses (only under given condi-
tions): CJ 1.3.48 (531) as well as Nov. 131.12 (545). For Justinian’s exclusion of bringing querela
inofficiosi testamenti against testaments of bishops, presbyters and deacons (however, again
in very specific circumstances), see CJ 1.3.49 (531). On the contradictions between the pure
imperial law, the legal practice of late antiquity in regard to differentiation between quarta
Falcidia and the portio debita/legitima, see: J. Urbanik, ‘Dioskoros and the law (on succes-
sion): Lex Falcidia revisited’, [in:] J.-L. Fournet & C. Madgeleine (eds.), Les archives de Dios-
core d’Aphrodité cent ans après leur découverte. Histoire et culture dans l’Égypte byzantine,
Études d’archéologie et d’histoire ancienne, Paris 2008, pp. 117–142.
18
Cf. Life of Constantine (Euseb. V.Const. 4.26): Κἄπειτα τῶν τὸν βίον µεταλλαττόντων ὁµοίος
παλαιοὶ µὲν νόµοι ἐπ᾽αὐτῆς ἐσχάτης ἀναπνοῆς ἀκριβολογεῖσθαι ῥηµάτων λἐξεσι τὰς συνταττό-
µενας διαθήκας τρόπους τε τίνας καὶ ποίας δεῖ φωνὰς ἐπιλέγεσθαι ὥριζον, καὶ πολλὰ ἐκ τοῦτων
ἐκακουργεῖτο ἐπὶ περιγραφῇ τῆς τῶν κατοιχοµένων προαιρέσεως. Ἃ δὴ συνιδὼν βασιλεὺς καὶ
τοῦτων µετεποιεῖτο τὸν νόµον, φιλοῖς ῥηµατίοις καὶ ταῖς τυχούσαις φωναῖς τὸν τελευτῶντα δεῖν
τὰ κατὰ γνώµην διατάττεσθαι φήσας κἀν τῷ τυχόντι γράµµατι τὴν αὐτοῦ δόξαν ἐκτίτεσθαι, κἀν
ἀγράφως ἐθέλῃ, µόνον ἐπὶ µαρτύρων τοῦτο πράττειν ἀξιοχρέων, τὴν πίστιν δυνατῶν σύν ἀλη-
θείᾳ φυλάττειν. Eusebius stresses the fact that the strict compliance with verbal formalism led
in the past to many attempts to breach the testators’ wills. In contrast to earlier legislative
framework, Constantine’s reforms are aimed at placing the primary importance on the wishes
of the testator. In relation to the above fragment of Vita Constantini, see esp. the provisions of
CJ 6.23.15.pr.: Quoniam indignum est ob inanem observationem irritas fieri tabulas et iudicia
mortuorum, placuit ademptis his, quorum imaginarius usus est, institutioni heredis verborum
non esse necessariam observantiam, utrum imperativis et directis verbis fiat an inflexa. See fur-
ther the passage of CJ 6.23.15.2: Et in postremis ergo iudiciis ordinandis amota erit sollemnium
sermonum necessitas, ut, qui facultates proprias cupiunt ordinare, in quacumque instrumenti
materia conscribere et quibuscumque verbis uti liberam habeant facultatem. Bernardo Albanese
has persuasively demonstrated that the contents of the cited passage of Vita Constantini are
indeed a commentary to the provisions of CJ 6.23.15, see: B. Albanese, ‘L’abolizione postclas-
sica delle forme solenni nei negozi testamentari’, [in:] Scritti giuridici II, Palermo 1991, pp.
1637–1654. On the reforms of Constantine introduced in regard to testaments, see M. Nowak,
Wills in the Roman Empire: A Documentary Approach [= JJurP Sup 23], Warsaw 2015, pp. 42–
46 (with abundant references to earlier literature).
 BETWEEN HEAVEN AND EARTH 125

this the emperor could aim at dispersing doubts that likely existed in the
legal practice regarding vast array of issues, such as the recognition of tes-
tamentary capacity of the Church, the possibility of challenging the testa-
mentary bequests by relatives, as well as – perhaps above all – the form of
specific dispositions in the will. It is in this context that Constantine’s leg-
islation – as Humfress put it – ‘does not simply confirm the validity of
inheritances and deathbed gifts left to the Catholic Church, it is also evi-
dence for the legal complexities and potential challenges that such bequests
could entail’.19
The next legislative step made in the field of bequeathing property to the
ecclesiastics is CTh 16.2.20. This law, issued in the year 370 by Valentinian to
Damasus, the bishop of the City of Rome, seems to point to a direction
entirely different than the one indicated by the favourable legislation of
Constantine.20 According to this constitution, the clerics and monks (eccle-
siastici aut ex ecclesiasticis vel qui continentium se volunt nomine nuncupari)
should not visit the houses of widows and female wards (pupillae). They
should not obtain anything from the aforementioned women, ‘to whom
they have attached themselves privately under the pretext of religion’ (pri-
vatim sub praetextu religionis adiunxerint). Everything that may have been
left to the ecclesiastic through a testament of these women shall be consid-
ered ineffective and such property shall be appropriated by the fisc. Not
only ecclesiastics are exempt from such enrichment, but also those who
have renounced their religious status for whatever reason.
The wording of the constitution is highly restrictive as it states that any-
thing that was given to the ecclesiastics either through the act of generosity

19
Cf. Humfress, ‘Gift-giving’ (cit. n. 13), p. 16.
20
CTh 16.2.20 (Imppp. Valentinianus, Valens et Gratianus aaa. ad Damasum episcopum urbis
Romae): Ecclesiastici aut ex ecclesiasticis vel qui continentium se volunt nomine nuncupari, vidua-
rum ac pupillarum domos non adeant, sed publicis exterminentur iudiciis, si posthac eos adfines
earum vel propinqui putaverint deferendos. Censemus etiam, ut memorati nihil de eius mulieris,
cui se privatim sub praetextu religionis adiunxerint, liberalitate quacumque vel extremo iudicio
possint adipisci et omne in tantum inefficax sit, quod alicui horum ab his fuerit derelictum, ut nec
per subiectam personam valeant aliquid vel donatione vel testamento percipere. Quin etiam, si
forte post admonitionem legis nostrae aliquid isdem eae feminae vel donatione vel extremo iudicio
putaverint relinquendum, id fiscus usurpet. Ceterum si earum quid voluntate percipiunt, ad qua-
rum successionem vel bona iure civili vel edicti beneficiis adiuvantur, capiant ut propinqui.
126 MARZENA WOJTCZAK

or by the will of such women should be ineffective and confiscated. An anal-

ogous solution is foreseen in case of the donation or testamentary bequest
made through an interposed person. Such provision brings to mind the legal
regime of fideicommissum tacitum that was forfeited to the fiscus if a lega-
tarius or heres engaged themselves to give the fideicommissum to a person
legally incapable of taking it.21 It seems that the constitution assumes a sce-
nario according to which the goods left to an ecclesiastic or a former eccle-
siastic did not become a caducum (and hence could not have been claimed
by the heirs or legatees), but could be directly seized by the fisc.22
It is thus disputable whether we may consider the latter constitution as
designed to protect the interest of the family above all. Of course, the risk
of the forfeiture of part of the property in favour of the fiscus might have
been a deterrence for possible donors inter vivos or mortis causa. One should
note, however, that from the perspective of a person who decides to make
a donation for pious reasons, in the event that the bequest has no legal effect
the exclusion of the family from receiving part of the property should not
have a ‘blocking’ effect, because in a reverse situation (i.e. when the bequest
is effective) their position would be equally infringed. Admittedly, those
who preferred to make testamentary bequests to the benefit of the clerics,
rather than to their relatives would not always treat as irrelevant the fact
that their property could be transferred to the treasury instead of the family.
Still, to my mind, it seems unlikely that the risk of forfeiture could effective-
ly discourage the donor or testator, causing him or her to leave the property
in the hands of his or her relatives. The constitution’s aim as well could have
been to discourage a cleric to take any action leading to acquiring a dona-
tion or a testamentary bequest, since such a bequest would be subject to for-
feiture regardless. The constitution also states that the provisions in favour
of the ecclesiastics would be deemed effective on the condition these per-

21
Certainly, such fideicommissum must have been established in a manner that was evad-
ing the law (in fraudem legis). Otherwise, the fideicommissum that was openly given in the
testament to a person incapable of its appropriation would be considered null and void.
22
Cf. CTh 16.2.27 (also discussed below), that provides a solution indeed protecting the fam-
ily. Barone-Adesi in his argumentation in favour of the imperial policy protecting the family
rights omits the controversy regarding the appropriation of property assigned in fideicomis-
sum by the fisc. See Barone-Adesi, ‘Dal dibattito cristiano’ (cit. n. 11), pp. 243–244, 251.
 BETWEEN HEAVEN AND EARTH 127

sons are included in the catalogue of heirs ab intestato, be it on the basis of

civil law or praetorial edict. It remains, however, an open question whether
these provisions were at all targeted at the bequests made to the Church
itself, at least at this stage.
In a somewhat similar vein, CTh 16.2.27 (390) – issued while Theodosius
I was at Milan but addressed to the eastern praetorian prefect Tatianus23 –
limits the rights of women attempting to be accepted into diaconissarum
consortium, as well as their capacity to leave their possessions after death to
the benefit of the Church.24 In regard to women, and especially those com-
ing from noble families, the law states that they should not dispose of their
jewels, plate or furniture (or anything else for that matter) under the pre-
tence of religion (sub religionis defensione). Moreover, when a woman dies,

23
On Tatianus, see J. Matthews, Western Aristocracies and Imperial Court, Oxford 1975, pp.
114, 224. The law limiting the capacity of clerics to inherit after women from the year 390 was
most probably directed at the Eastern Church, in contrast to the twenty years earlier Valen-
tinian’s law that had been addressed to Damasus, the bishop of Rome. On that also, see
J. Evans-Grubbs, ‘Virgins and widows, show-girls and whores: Late Roman legislation on
women and Christianity’, [in:] R. W. Mathisen (ed.), Law, Society and Authority in Late Antiq-
uity, Oxford 2001, pp. 220–241, at p. 227.
24
CTh 16.2.27 (Imppp. Valentinianus, Theodosius et Arcadius aaa. Tatiano praefecto praeto-
rio): pr. Nulla nisi emensis sexaginta annis, cui votiva domi proles sit, secundum praeceptum
apostoli ad diaconissarum consortium transferatur. Tum filiis suis, curatore, si id aetas poscit,
petito, bona sua idoneis sedula religione gerenda committat, ipsa tantum praediorum suorum
reditus consequatur, de quibus servandi abalienandi donandi distrahendi relinquendi vel quoad
superest vel cum in fata concedit et libera ei voluntas est, integra sit potestas. Nihil de monilibus
et superlectili, nihil de auro argento ceterisque clarae domus insignibus sub religionis defensione
consumat, sed universa integra in liberos proximosve vel in quoscumque alios arbitrii sui existi-
matione transcribat ac si quando diem obierit, nullam ecclesiam, nullum clericum, nullum pau-
perem scribat heredes. Careat namque necesse est viribus, si quid contra vetitum circa personas
specialiter comprehensas fuerit a moriente confectum. Immo si quid ab his morienti fuerit extor-
tum, nec tacito fideicommisso aliquid clericis in fraudem venerabilis sanctionis callida arte aut
probrosa cuiuspiam coniventia deferatur; extorres sint ab omnibus quibus inhiaverant bonis. Et
si quid forte per epistulam codicillum donationem testamentum, quolibet denique detegitur
genere conscriptum erga eos, quos hac sanctione submovimus, id nec in iudicium devocetur, sed
vel ex intestato is, qui sibi competere intellegit, statuti huius definitione succedat, si quis se
agnoscit filium, si quis probat propinquum, si quis denique vel casu vel iudicio, pro solido pro
portione, heres legatarius fideicommissarius apertis deprehenditur codicillis, fruatur fortunae
munere, conscientiae suae fructu et submotis his adque deiectis in hereditariis corporibus pote-
state utatur heredis.
128 MARZENA WOJTCZAK

she must designate as her heirs neither church (nullam ecclesiam), nor cleric
(nullam clericum), nor pauper (nullam pauperem).25 Her property should be
– as indicated in the constitution – rather assigned to her children, next of
kin or to any other person according to her free will. If these provisions are
broken and something is bestowed on clerics by tacitum fideicommissum
(cunning artifice or disgraceful connivance of anyone) then the clerics
should be deprived of everything that has been given to them. If anything
was transferred through a letter, codicil, donation or testament to the above-
mentioned persons, the deed of transfer should have no legal effect. This
time, it is the family members that are entitled to the property and shall suc-
ceed as heirs ab intestato or on the basis of the testament to all or to the por-
tion of the goods as heirs, legatees, beneficiaries of a trust or through a cod-
icil.
This law, however, was revoked only two months later by the subse-
quent constitution listed in Codex Theodosianus, i.e. 16.2.28, which makes it
hardly suitable to serve as a basis of any conclusions on a coherent legisla-
tive policy of Theodosius I.26 In secondary literature, one often finds refer-
ences to the abrogation of these provisions, yet the discussion on the origins
of this action is rare.27 The conspicuous discrepancies between the ecclesi-
astical commandments and the imperial legislation have served as the main
explanation for the rapid change of law. This supposedly led to a subse-
quent change of a legislator’s mind on the limitations the freedom of dispo-
sition of the Church and clerics.28 Recent scholarship appended the latter
interpretation by a suggestion that the law relating to the deaconesses and
widows could have been introduced due to some particular matters of state.

25
Her property should be – as indicated in the constitution – rather assigned to her children.
26
Or it even suggests that there was no such coherent legislative policy.
27
CTh 16.2.28 (Imppp. Valentinianus, Theodosius et Arcadius aaa. Tatiano praefecto praeto-
rio): Legem, quae de diaconissis vel viduis nuper est promulgata, ne quis videlicet clericus neve
sub ecclesiae nomine mancipia superlectilem praedam velut infirmi sexus dispoliator invaderet
et remotis adfinibus ac propinquis ipse sub praetextu catholicae disciplinae se ageret viventis
heredem, eatenus animadvertat esse revocatam, ut de omnium chartis, si iam nota est, auferatur
neque quisquam aut litigator ea sibi utendum aut iudex noverit exequendum.
28
See Barone-Adesi, ‘Dal dibattito cristiano’ (cit. n. 11), pp. 252–254 (with references to fur-
ther literature).
 BETWEEN HEAVEN AND EARTH 129

In that context scholars pointed at two alternative hypotheses. First of all,

according to Sozomen the unfavourable legislation could be related to
a scandalous event: the rape of a Christian woman by a deacon while she
was doing penance in church.29 Secondly, the case of Olympias is often
offered as a probable impetus for the sanctions enacted against clerics.30
Theodosius, who was related to Olympias, attempted to pressure her into
concluding a second marriage, although the widowed woman wished to
devote herself to celibacy and pass her wealth to the Church. The aim of the
law would then be to deter Olympias from giving generous donations for
pious reasons.31 The story ends with Olympias’ ordination as a deaconess by
Nectarius, bishop of Constantinople. As the emperor’s primary tactic failed,
there was no point in keeping the law, which additionally had provoked
objections on the part of the Church.32 As tempting as the proposed hypoth-
esis may seem, it does not work chronologically. The provisions regarding
deaconesses were revoked already in 390, whereas Olympias regained con-
trol over her property and became deaconess only in 391. The story could
29
Cf. Sozomen, HE 7.16.
30
See Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), pp. 229–230. Also on that earlier
J. H. W. Liebeschuetz, Barbarians and Bishops. Army, Church and State in the Age of Arcadius
and Chrysostom, Oxford 1990, pp. 143–144; R. P. Coleman-Norton, Roman State and Chris-
tian Church. A Collection of Legal Documents to ad 535, vol. 2, London 1966, no. 225, pp. 429–
434; no. 227, pp. 433–434; G. Dagron, Naissance d’une capitale: Constantinople et ses institu-
tions de 330 à 451, Paris 1974, p. 502 n. 7; R. Bruno-Siola, ‘Viduae e coetus viduarum nella chiesa
primitiva e nella normazione dei primi imperatori cristiani’, Atti dell’Academia Romanistica
Costantiniana 8 (1990), pp. 367–426, at pp. 415–418; J. R. Curran, Pagan City and Christian
Capital. Rome in the Fourth Century, Oxford 2000, pp. 286–287.
31
See Vita Olympiae 3–6, [in:] Jean Chrysostome, Lettres à Olympias. Seconde edition aug-
mentée de la Vie anonyme d’Olympias, A.-M. Malingrey (ed. & tr.) [= SCh 13bis], Paris 1968,
pp. 410–420; cf. Sozomen, HE 8.9.
32
The story of Olympias seems to have common points with an account on the introduc-
tion of Theodosius’ law in Miracles of St Thekla, cf. Miracle 9, [in:] G. Dagron (ed.), Vie et
miracles de Ste Thecle, Brussels 1978, pp. 304–309. The story concerns one Menodorus, a for-
mer priest of the church of Saint Thekla who had become bishop of Aigeai, who has been
made an heir to wealthy and pious woman. However, eunuch Eutropius (who was an official
at the imperial court in Constantinople) in the view of personal gain persuaded the emperor
to pass a law that forbade clerics to become woman’s heir unless they are of her kin. This
story is recalled and analysed in detail by Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), pp.
230–232.
130 MARZENA WOJTCZAK

thus form a background in the changes made in legislation, but it does not
seem to be their direct cause.
There is another vital factor that should be taken into consideration
when discussing the reasoning behind CTh 16.2.27 and 16.2.28. It seems
hardly a coincidence that the conflict between Theodosius and Ambrose
took place in the background of the introduced provisions. The discord result-
ed in the excommunication of the ruler by the bishop after the pacification
of a mob in Thessaloniki ordered by the emperor in spring 390, and in the
wake of the murder of the Roman commander Butheric. Ambrose refused to
celebrate a mass in the emperor’s presence until Theodosius repented.33 The
introduction of CTh 16.2.27 could well be a result of the emperor’s emotional
reaction to such an insult.34 This would also explain the quick revocation of
the limitations, when both sides decided to act towards the end of the dis-
pute.35
The correspondence of Jerome and Ambrose confirms that the restric-
tions were indeed felt by the clergy. Each refers directly to the imperial leg-
islation. In 384, the Bishop of Milan objected against the provisions of (most
probably) CTh 16.2.20 in his letter to the Emperor Valentinian II.36 In 394,
Jerome wrote a telling letter to a monk-cleric named Nepotian, in which he
stressed that while pagan priests, mime artists, charioteers, and prostitutes
could all inherit property, nevertheless clerics and monks were prohibited

33
On that, see, e.g. F. Kolb, ‘Der Bußakt von Mailand: zum Verhältnis von Staat und Kirche
in der Spätantike’, [in:] H. Boockmann, K. Jürgensen & G. Stoltenberg (eds.), Geschichte
und Gegenwart – Festschrift für K. D. Erdmann, Neumünster 1980, pp. 41–74, at pp. 48–55;
H. Leppin, Theodosius der Große, Darmstadt 2003, pp. 153–161.
34
This proposition is not decisive, but offers a hypothesis on the possible reasons underly-
ing CTh 16.2.27 and 16.2.28. It points to the wide spectrum of tensions along the axes: the
emperor – the bishop, ideology – practice, and private ownership – ecclesiastical privileges.
35
To my mind, this interpretation was proposed by Ewa Wipszycka during one of her sem-
inars in Warsaw. The abrogation of previous legislation regarding deaconesses and widows
goes also in line with Theodosius’ alleged promise, made after the conflict with Ambrose, to
promulgate a law which in cases of death sentences would introduce a thirty-day lag before
the execution. The latter law is extant and was most probably issued in August of 390 (cf.
CTh 9.40.13; during the consulship of Antonius and Syagrius) by Theodosius, Valentinian II
and Gratian (only formally acting jointly).
36
See Ambrose, Ep. 18.14–16.
 BETWEEN HEAVEN AND EARTH 131

to obtain anything in that manner.37 Jerome suggested that clerics were

henceforth forced to circumvent the law through fideicommissa. However,
already the law from 370 excluded the possibility of clerics acquiring any-
thing through an interposed person who was expected later to pass the
property onto the beneficiary originally intended. The same provisions, this
time explicitly referring to fideicommissum tacitum, were repeated in the
constitution from the year 390.38 Apparently notwithstanding the aforemen-
tioned legislation, certain individuals were still attempting to evade the law
by using the same strategic and fraudulent schemes. As Jerome stated: per
fidei commissa legibus inludimus and as an explanation for such practices he
offered the need of the Church to provide for the poor. Admittedly, if the
fideicommissa were used to the benefit of particular ecclesiastics due to their
avarice, such actions should be considered shameful and condemned.39 All

37
Jerome, Ep. 52.6: Pudet dicere: sacerdotes idolorum, mimi et aurigae et scorta hereditates
capiunt; solis clericis et monachis hoc lege prohibetur et prohibetur non a persecutoribus, sed a prin-
cipibus Christianis.
38
These laws are only tip of an iceberg when it comes to the prohibition of ‘secret trusts’
under Roman law. It seems that already the lex Iulia et Pappia Poppea gave provisions accord-
ing to which such fideicommissum should be appropriated by the fisc. In 317, Constantine
also attempted, yet without much success, to limit the practice of hereditas commissa tacitae
fidei, cf. CTh 10.11.1 (Imp. Constantinus a. rationalibus Hispaniarum): Is, cuius tacitae fidei com-
missa fuerit hereditas, statim officio gravitatis tuae nuntiet et gesta prodat et continuo quod
actum fuerit renuntiet, et post hanc fidem tertiam ab omnibus defuncti bonis percipiat portio-
nem; (later repeated in CJ 10.13.1). According to the latter law, anyone who had been charged
with fideicommissum tacitum should denounce it to the imperial officials, produce the
records and repudiate what has been done. As a consequence, those who informed against
themselves would receive a third of the deceased’s entire estate. See: Humfress, ‘Gift-giving’
(cit. n. 13), pp. 14, 20–21. As observed by Humfress, legislation against ‘secret trust’ should
be also treated as ‘an important reminder of how legislative enactments can, in some cases,
relate directly to social practice’. One should note that in case of CTh 10.11.1 – as already stat-
ed – the property is appropriated by the fisc without giving any priority to the family of the
deceased. It needs to be noted that the ‘secret trusts’ are being also outlawed in cases where
heretics and adherents of other proscribed sects were the intended beneficiaries. These reg-
ulations – needless to say – were not designed to protect the inheritance rights of the family,
but rather go in line with numerous late imperial constitutions restricting the legal capacities
of apostates and heretics to bequeath and receive inheritances and donations (including their
descendants if they were counted among these groups).
39
Jerome, Ep. 52.6: Per fidei commissa legibus inludimus, et quasi maiora sint imperatorum
132 MARZENA WOJTCZAK

in all, Jerome’s mention of the law in his letter to Nepotian seems perplex-
ing, since unfavourable legislation regarding widows and deaconesses was
abrogated already in 390.40
At the same time, we observe a recurring topos in fifth- and sixth-century
biographies, where wealthy Christian women renounce their secular life and
donate their fortunes to found monasteries, endow churches and provide for
the poor.41 Reading between the lines of the legislation, it seems clear that

scita quam Christi, leges timemus, evangelia contemnimus. Sit heres, sed mater filiorum, id est
gregis sui, ecclesia, quae illos genuit, nutrivit et pavit. Quid nos inserimus inter matrem et libe-
ros? Gloria episcopi est pauperum opibus providere, ignominia omnium sacerdotum est propriis
studere divitiis.
40
See the already mentioned CTh 16.2.28. Jerome in his letter indicates that some of these
provisions have in fact remained active or at least certain obstacles or uncertainties were still
encountered in practice. The presence of doubts concerning the binding law seems to be con-
firmed also in later legislation, cf. Nov. Marc. 5. Jerome could be referring in his letter to the
law of Valentinian from 370, since he was the secretary of Damasus to whom the constitution
was addressed. Cf. on that matter Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), pp. 225–
227. In that context it is worth reminding that Jerome himself had some legal proceedings
brought against him in regard to his relations with the high-born widow Paula and other
aristocratic women (possibly for the violation of CTh 16.2.20; cf. Jerome, Ep. 45). The legiti-
macy of claims raised against Jerome has been recently discussed by Chrysanthi Demetriou
in her paper ‘Controversies in Jerome’ given during the 4. Internationaler Workshop: Trial
Procedure in the Acts of the Ecumenical Councils and Other Late Antique Documentary
Sources (4–6 July 2018) at Otto-Friedrich-Universität Bamberg. It also appears that Jerome’s
case was solved through audientia episcopalis rather than the secular judge. See also on that
J. N. D. Kelly, Jerome: His Life, Writings, and Controversies, New York 1975, pp. 11–114; as
well as J. C. Lamoreaux, ‘Episcopal courts in late antiquity’, JECS 3 (1995), pp. 143–167; On
Paula, see L. L. Coon, Sacred Fictions: Holy Women and Hagiography in Late Antiquity, Philadel-
phia 2010, pp. 103–109.
41
See the examples of Olympias, Melania the Younger, or Demetrias. Further on the Chris-
tian women and gift-giving (with literature): Dagron, Naissance d’une capitale (cit. n. 30),
p. 33; J. Harries, ‘“Treasure in heaven”: property and influence among senators of late Rome’,
[in:] E. M. Craik (ed.), Marriage and Property, Aberdeen 1991, pp. 54–70; E. A. Clark, ‘Antifa-
milial tendencies in ancient Christianity’, Journal of the History of Sexuality 5.3 (1995), pp.
356–380; A. Arjava, Women and Law in Late Antiquity, Oxford 1996, pp. 157–177; K. Cooper,
‘Poverty, obligation, and inheritance: Roman heiresses and the varieties of senatorial Chris-
tianity in fifth-century Rome’, [in:] K. Cooper & J. Hillner (eds.), Religion, Dynasty and
Patronage in Early Christian Rome 300–900, Cambridge 2007), pp. 165–189; G. D. Dunn, ‘The
Poverty of Melania the Younger and Pinianus’, Augustinianum 54.1 (2014), pp. 93–115; Hum-
fress, ‘Gift-giving’ (cit. n. 13), pp. 16–17.
 BETWEEN HEAVEN AND EARTH 133

women who adopted asceticism could (and often did) face family opposition.
It is probable that this legislative input was inspired by the complaints of the
senatorial class about the instances of ‘inheritance hunting’ from greedy cler-
ics, who sought for an easy opportunity to improve their economic situation
under the ‘false pretence of religion’. It seems therefore that practice provid-
ed impetus for the laws against the clerics who preyed on wealthy widowed
or young women.42 Such provisions could be also considered as an economic
facet of the wide protection offered to holy women against violence.43
A papyrus codex recording a (fictional) conversation between Cyril of
Alexandria and two deacons corresponds perfectly with this context.44 In it,
the bishop is asked what should be done when relatives protest against the
donations made for pious reasons. The answer goes against the Church’s
obvious interest since Cyril states that the charity of the Church does not
seek what does not belong to it. In the same spirit as the bishop’s recommen-
dation we find the letter of Jerome, where clerics who devoted their time to
‘learning the names, homes, and habits of matrons’ are condemned.45
In this light it appears that the legislation should be seen as targeting cer-
tain unwanted behaviours rather than suggesting the bestowing of privileges
on, or defending the interests of, one specific group. It should be mentioned

42
Interestingly enough, the addressee of the imperial constitution, Damasus, was a rather
controversial figure when it comes to his relations with matrons, see on that Kelly, Jerome
(cit. n. 40), pp. 80–90; Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), p. 227.
43
A large group of laws was devoted to the protection of women undertaking a celibate life,
cf. e.g. CTh 9.24.1 (326); CTh 9.25.1 (354); CTh 9.25.2 (364). These laws point to the fact that sin-
gle status of these women as well as their wealth made them tempting targets. Later emperors
continued to condemn the abduction of pious virgins and widows. Particularly interesting
example is provided by the law of Honorius (concerning the prohibition for clerics to have
women living with them who were not closely related to them) that we find in CTh 9.25.3 (420)
and in more extensive version in tenth Sirmondian Constitution. It is stated that the emperor
undertakes action due to a recommendation made by priest who was concerned with the dis-
repute and scandal the clergy was bringing upon itself. On that more extensively with refer-
ence to literature, Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), pp. 223–226.
44
Coptic text with German translation: W. E. Crum (ed. & tr.), Der Papyruscodex saec. VI–VII
der Phillipsbibliothek in Cheltenham, Strasbourg 1915; see also Wipszycka, ‘Resources and eco-
nomic’ (cit. n. 6), pp. 167–168 (with further references).
45
See Jerome, Ep. 22.28.
134 MARZENA WOJTCZAK

that the Roman inheritance law offered a number of possibilities to move the
property away from the family. As argued by Humfress, the Church tends to
use existing methods rather than disrupt traditional Roman inheritance
strategies, when possible.46 One should also pay attention to the catalogue of
people whose testamenti facti passiva and freedom to give away their prop-
erty as donations are limited due to these constitutions. Valentinian’s law
was specifically targeted at protecting widows and young women under
guardianship (pupillae). The short-lived constitution by Theodosius I, in turn,
included a prohibition on women becoming a ‘deaconess’ before reaching
a certain age, and was designed to limit the practice of drafting secret fide-
icommissa with clerics as beneficiaries, or establishing Church entities as
heirs of such women. These constitutions not only exclude men from their
scope, but are also selective in their choice of categories of women. Thus, the
freedom of dispositions made to the benefit of the Church is rather upheld,
although subject to certain reservations.47 It seems that the nature of the con-
stitutions discussed is more ‘against’ than ‘in favour of’. We are not dealing
with any carefully tailored legislative policy, but rather a response to various
groups trying to protect their own interests. One should also note here that
the solutions adopted are not unequivocally favourable to the family. Admit-
tedly, the closest relatives are indicated as the will’s neutral beneficiaries, but
apart from excluding the possibility of charitable gifts to the clerics, monks,
and the Church, widows and young women were free to make donations to
any other individual or institution.
It is a common conviction that it is only with CTh 5.3.1 (434) that we may
observe a vital change in the policy of the Roman legislator towards the
inheritance capacity of the Church. The constitution states that if any bishop,
priest, deacon, or cleric of any other rank, or a monk/nun should die without
having made a testament, and if there are no relatives (through agnation or
cognation) entitled to the inheritance, then the property shall be incorporat-
ed entirely into that of the church or the monastery.48 Judith Evans-Grubbs

46
Humfress, ‘Gift-giving’ (cit. n. 13), p. 9.
47
In agreement with the earlier provisions from the reign of Constantine (CTh 16.2.4).
48
This constitution has been claimed by many scholars as a breakthrough delimiting
moment in which the ecclesiastical institutions gained the recognition of a corporation under
 BETWEEN HEAVEN AND EARTH 135

argues that with this constitution we may observe ‘a progressive softening

of official resistance to the Church and its clerics as beneficiaries’.49 In my
opinion, however, no radical alteration can be observed regarding the path
taken by earlier laws included in Theodosian Code. In fact, the earlier provi-
sions concerning testamentary bequests remain in force, whereas Church
rights are recognized only in cases of intestate succession to a cleric or a monk,
and in the absence of any other potential heirs. In this context the law per-
tains to an entirely different matter than has been previously discussed. CTh
5.3.1 is the next step towards bestowing rights on the Church that were
assigned to other corporate bodies and assemblies already known in Roman
law.50 Admittedly, the Church benefits from such a solution, but this does not
indicate any radical turn in imperial policy. The earlier sanctions ordered in
case of specific practices – undertaken sub praetextu religionis – can hardly
mean any general resistance to the Church. Further, this provision has nei-
ther positive nor negative influence on the position of the family in the tra-
ditional succession.51 Rather, as has been signalled at the beginning of this

Roman law, since they could inherit after its members. It requires noting, however, that in
the aspect of the general inheritance capacity the Church already in earlier constitutions
appeared as a ‘body’, or ‘entity’.
49
See Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), p. 232.
50
Theodosius II followed here the solutions already applied to, e.g. municipal councils and
military units to inherit from intestate members. Cf. E. Herman, ‘Die Regelung der Armut in
den byzantinischen Klöstern’, Orientalia Christiana Periodica 7 (1941), pp. 406–460, at p. 409;
R. DELMAIRE, Largesses sacrées et Res privata. L’aerarium impérial et son administration du IV e
au VI e siècle, Paris 1989, pp. 615–616. It is also mentioned by Laniado, ‘Early Byzantine state’
(cit. n. 8), pp. 27–28; and Barone-Adesi, ‘Dal dibattito cristiano’ (cit. n. 11), pp. 254–257.
51
The family is given the regular priority in case of an intestate succession. Moreover, the
constitution ends by stating that any lawsuits arising from petitions for the property of intes-
tate ecclesiastic shall be stopped and that no (extraneous) claimant is allowed to enter court
and annoy the church stewards, the monks or the procurators. Cf. CTh 5.3.1 (Impp. Theodosius
et Valentinianus aa. ad Taurum pf. p. et patricium): (…) ita ut, si qua litigia ex huiusmodi com-
petitionibus in iudiciis pendent, penitus sopiantur, nec liceat petitori post huius legis publicatio-
nem iudicium ingredi vel oeconomis aut monachis aut procuratoribus inferre molestiam, ipsa
petitione antiquata, et bonis, quae relicta sunt, religiosissimis ecclesiis vel monasteriis, quibus
dedicati fuerant, consecratis. Thus, this constitution should not be seen as particularly ‘safe-
guarding’ the family’s interest. Cf. Barone-Adesi, ‘Dal dibattito cristiano’ (cit. n. 11), p. 254;
See also on the meaning of CTh 5.3.1: Orestano, ‘Beni dei monaci’ (cit. n. 2), pp. 589–590.
136 MARZENA WOJTCZAK

article, the constitution in question shows that the pattern of voluntary

poverty had yet to make its way into the secular legislation and, as a conse-
quence, the clergy and monks retained their property rights.52
It is only with the Novellae to the Theodosian Code that we start to see
a changing picture. In 455, Marcianus introduced a law by which holy women,
widows, deaconesses, and all religious matrons were given the power, either
through a testament or by any other written documents, to leave their prop-
erty to churches, monasteries, and all clerics.53 The reasoning behind this
law was a case of certain Hypatia and her testamentary dispositions, by
which she conferred a large amount of property upon churches, monaster-
ies, and the poor. The validity of the testament must have been questioned,
because the case reached the imperial court. The emperor examined the text
of Hypatia’s will and stated that she was of sound mind and that the testa-
ment was justly and prudently established, and that testator neglected no
person. Hypatia prepared her testament in accordance with the law, prop-
erly establishing an heir, the priest Anatolius, so that her testamentary dis-
positions could be then fulfilled through him.54 Thus the claim raised against

52
Cf. Laniado, ‘Early Byzantine state’ (cit. n. 8), pp. 26–30. On the endorsement of the idea
of voluntary poverty by the Byzantine Church, see especially p. 27.
53
Nov. Marc. 5 (Imp. Marcianus a. Palladio Praefecto praetorio): Saepe materiam scribendis
ferendisque legibus negotia inopinato exorta suppeditant et aut novas constitui sanctiones aut
durius et asperius latas faciunt abrogari. Aequalis enim in utroque aequitas est vel promulgare,
quae iusta sunt, vel antiquare, quae gravia sunt. Nuper cum de testamento clarissimae memo-
riae feminae Hypatiae, quae inter alios virum religiosum Anatolium presbyterum in portione
manifesta bonorum suorum scripsit heredem, amplissimo senatu praesente tractaret pietas mea
et dubium videretur, an valere deberent eae voluntates viduarum, quae testamento suo aliquid
his clericis relinquunt, qui sub praetextu religionis huius modi feminarum domus adeunt, cum
lex divae memoriae Valentiniani et Valentis et Gratiani ecclesiasticos, vel eos, qui continentium
se volunt nomine nuncupari, nihil quacumque liberalitate viduarum extremo iudicio permittat
adipisci, contra haec autem divae memoriae Valentiniani, Theodosii et Arcadii constitutio lege-
retur: ... inspicientibus et aestimantibus nobis latoris animum visum est iusta ac rationabili pae-
nitentia priorum constitutionum vigorem antiquare voluisse. Nam cum in prima lege viduarum
tantummodo mentio facta sit, in secunda autem tantummodo diaconissarum, intelligitur eam
constitutionem, quae viduarum et diaconissarum meminit, de lege utraque dixisse. (…).
54
Nov. Marc. 5 (Imp. Marcianus a. Palladio Praefecto praetorio): (…) 1. Quod cum de voluntate
latoris et de sanctione legis nobis videretur, universum testamentum iussimus relegi atque repli-
cari; et cum repertum fuisset alias quoque partes eiusdem voluntatis ita iuste ac prudenter insti-
 BETWEEN HEAVEN AND EARTH 137

the validity of the testament was most probably based on the laws issued by
Valentinian I and Theodosius.55 Marcian’s law clearly stated that the previ-
ous legislation had been already repealed by CTh 16.2.28. This justification
clearly indicates that controversies regarding the law in force were still
existing, that is why the emperor’s constitution was meant to cast away all
doubts.56 Indirectly, it also suggests that earlier acts were somewhat out of
the ordinary, as their revocation did not worsen significantly the position of
the family, due to the existence of the defence mechanisms resulting from
the inheritance law and also – as it seems – querela inofficiosi testamenti.57
In case of widows, deaconesses, and young women, we are dealing with

tutas, ut nullum de se meritum neglexerit, multa sacrosanctis ecclesiis, multa pauperibus, multa
monachis religionis intuitu, multa captivorum redemptioni commota miserabili eorum sorte
contulerit, multa libertis suis delatorum sibi obsequiorum contemplatione praestiterit, alteram
quoque partem institutionis, in qua Anatolium presbyterum reliquit heredem, advertimus ordi-
ne fuisse dispositam. Ea enim mobilia, quae plurimus iuste ac pie reliquit, per hunc voluit uni-
versa conpleri, ut non solum heredis, sed paene etiam dispensatoris fungatur officio. Ideoque
huiusmodi praedictae clarissimae memoriae Hypatiae voluntatem etiam in ea parte, qua Ana-
tolium presbyterum instituit heredem, ea auctoritate firmavi (…). In order to avoid any ambi-
guity in the future, the emperor decides to abrogate earlier legislation entirely and states that
in case of instituting as an heir or making a testamentary bequest to a church, a martyrium,
a cleric, a monk, or the poor such gifts will be considered valid and effective, cf. Nov. Marc.
5. See also: CJ 1.2.13.
55
Marcian’s law has a lacuna just after the mention of Valentinian’s law (CTh 16.2.20) and
some legislation of Theodosius. It appears that the lacuna contained references to CTh
16.2.27–8. On that, see Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), p. 232.
56
The explanation given by Marcian for the abrogation of earlier legislation shows that
there could have been some doubts as to the scope of the earlier CTh 16.2.28. Cf. Nov. Marc.
5: (…) …inspicientibus et aestimantibus nobis latoris animum visum est iusta ac rationabili pae-
nitentia priorum constitutionum vigorem antiquare voluisse. Nam cum in prima lege viduarum
tantummodo mentio facta sit, in secunda autem tantummodo diaconissarum, intelligitur eam
constitutionem, quae viduarum et diaconissarum meminit, de lege utraque dixisse (…). Thus, all
previous limitations were meant to be abolished.
57
In case of making a donation, testamentary bequest, or determining as an heir the Church
or an ecclesiastic, the legal measures available to the family resulted from the Roman inher-
itance law and querela inofficiosi testamenti. Roman law thus protected close relatives who
had been ‘undutifully’ overlooked by granting them a procedural remedy in order to contest
the testator’s will. On the legal instruments and rules concerning traditional Roman inheri-
tance strategies in the context of pious donations see Humfress, ‘Gift-giving’ (cit. n. 13), pp.
11–14 (with further literature). However, cf. Justinian’s laws in that field: CJ 1.3.48–49.
138 MARZENA WOJTCZAK

a risk group that tends to be treated separately in the imperial legislation.

Religious motivation plays hardly a substantial part in the restrictions.
What is important from the point of view of the legislator is the property,
which – even if would not eventually land in the hands of the family (as
long as the testament was not contra officium pietatis) – should not be wast-
ed or end in the hands of those that do not deserve it.58

3. Ecclesiastical property rights:

the restrictions of freedom to renounce the world
in the Codex Theodosianus

The Codex Theodosianus contains imperial constitutions aimed at limiting the

cases where churches or monasteries are endowed with land belonging to
curiales. Similarly, restrictions were introduced in regard to alienation of
curial property in order to benefit the poor. The reasoning behind these reg-
ulations is clear and has been already discussed on numerous occasions.59 It
is not the hostility or ideological opposition of the secular power towards the
voluntary poverty or the monastic movement, or the will to safeguard the
family rights in the perspective of future inheritance. These laws were con-
nected to the key role the landed property played in the administrative sys-
tem where tax revenues and other duties stemming from the land burdened
with munera were one of the obligations towards the state. Alienation of

58
It seems that widows continued to trouble the emperors. In later legislation we find provi-
sions ordering the childless widows to remarry within the five years; in case of infringement of
this rule they should transfer their entire property to their relatives or, in case of their absence,
to imperial fisc, cf. Nov. Maj. 6.5. The plausible reasons behind this law have been discussed by
Evans-Grubbs, ‘Virgins and widows’ (cit. n. 23), pp. 232–234. For our considerations it is impor-
tant to note that the situation under regulation concerns yet again a special case of widows who
‘do not choose a solitary life in order that they may cherish their chastity out of love of religion,
but […] they choose a lascivious freedom of living’ (tr. after Pharr). Moreover, Nov. Maj. 6.11
gave provisions suppressing the avarice of the inheritance hunters. This implies that we are
dealing with a more general trend in imperial legislation aimed at limiting of certain unwanted
actions taking place in the legal practice, rather than provisions that target the Church.
59
Cf. e.g. Laniado, ‘Early Byzantine state’ (cit. n. 8), pp. 21–30 (with references to litera-
ture); Wipszycka, ‘Resources’ (cit. n. 6), pp. 163–165.
 BETWEEN HEAVEN AND EARTH 139

landed estates was thus limited in order to exclude or at least diminish the
attempts at evading public obligations. Also, leaving the curial class could
pose a threat to the interests of the state and hence was prevented through
imperial legislation. The emperors had nothing against their subjects under-
taking religious life, as long as the interest of the state was not put at risk.
The constitution of Valens from 370 or 373 (CTh 12.1.63) gives a clear sign
of the imperial policy toward the renunciation of the world by municipal coun-
cillors.60 The law states that those who desert the compulsory services of
municipalities and, under the pretext of religion, join the hermit monks should
be recalled to perform their duties or deprived of their property. The law seems
to be targeted at instances in which people could avoid their secular obliga-
tions by becoming monks or devoting themselves to Christian service. It is
aimed predominantly at discouraging or deterring people from leaving the
curial class. As the provisions of the constitution also threaten decurions with
the confiscation of their property, it is clear that they had not alienated it or
transferred their duties to another person. This constitution is also in line with
other laws that demonstrably favour the interest of the state and forbid, or at
least try to limit exemption from, compulsory public services, and evading the
duties that devolve upon the birth status.61 In this context, however, one should
also consult the content of CTh 16.2.19 (370), where it says that after the lapse
of ten years of undisturbed association in the clergy a decurion shall be con-
sidered exempt forever from the public duties together with his patrimony.62 It
is notable that the laws become increasingly restrictive over time.

60
CTh 12.1.63 (Idem aa. ad Modestum praefectum praetorio.): Quidam ignaviae sectatores deser-
tis civitatum muneribus captant solitudines ac secreta et specie religionis cum coetibus monazon-
ton congregantur. Hos igitur atque huiusmodi intra Aegyptum deprehensos per comitem Orientis
erui e latebris consulta praeceptione mandavimus atque ad munia patriarum subeunda revocari
aut pro tenore nostrae sanctionis familiarium rerum carere illecebris, quas per eos censuimus vin-
dicandas, qui publicarum essent subituri munera functionum. Frazee connects the introduction
of CTh 12.1.63 with the fact that Valens was a strong proponent of Arianism, whose opponents
often drew the Egyptian monks to their side in the doctrinal struggle. See Ch. A. Frazee, ‘Late
Roman and Byzantine legislation on the monastic life from the fourth to the eight centuries’,
ChHist 51 (1982), pp. 263–279, at pp. 264–265.
61
See also in regard to clergy, e.g. CTh 16.2.2 (313/319?); 16.2.3 (320/329?); 16.2.6 (326/329?);
16.2.21 (371); 16.2.39 (408).
62
CTh 16.2.19 (Impp. Valentinianus et Valens aa. Modesto praefecto praetorio): Quicumque ex
140 MARZENA WOJTCZAK

In 386, Theodosius the Great set further rules limiting the freedom of
curiales to dispose of their property that – compared to earlier legislation –
must have seriously hindered the possibility of leaving curial class.63 In the
light of CTh 12.3.1, if a municipal councillor was willing to alienate his
slaves or landed property, whether rural or urban, he was required to file
a petition to a ‘competent judge’ in order to prove that his actions were nec-
essary. In such cases a purchase would require a special decree. However, if
anyone – contrary to the provisions of law – would secretly, or by an
imposed person become a purchaser of a decurion’s property, he would be
deprived of the object of sale as well as the paid price.64 The function of the
solution adopted is to deter a potential contractor from attempting to enter
a suspicious agreement. As pointed out by Avshalom Laniado, although the
wording of the constitution does not refer directly to the prospective monks
or the idea of voluntary poverty, it should nevertheless be viewed as limit-
ing the possibility of making donations piae causae or renouncing worldly
possessions, as it is hardly possible that such actions could be considered as

curialium natus genere ad clericatum venerit et praeiudicio sanguinis coeperit postulari, certi
temporis definitione defendatur, ut, si in consortio clericatus decennium quietis impleverit, cum
patrimonio suo in perpetuum habeatur inmunis, si vero intra finitos annos fuerit a curia revo-
catus, cum substantia sua functionibus subiaceat civitatis: observando hoc, ut hi, quos decen-
nium vindicat, petitione superflua minime fatigentur.
63
Various (and usually earlier) limitations concerning decurions are also listed in CTh 12.1
passim (regarding land dispositions cf. esp. CTh 12.1.33 (342) and 12.1.49 (361); See also laws
regarding prohibition of evading the compulsory public duties on the ground of religion or
the possibility of transferring the duties/property onto another person/municipal council,
e.g. CTh 12.1.50 (362); 12.1.59 (364); 12.1.63 (370/373?); 12.1.99 (383); 12.1.104 (383); 12.1.115
(386); 12.1.121 (390); 12.1.123 (391); 12.1.163 (399); 12.1.172 (410).
64
CTh 12.3.1 (Imppp. Valentinianus, Theodosius et Arcadius aaa. Cynegio praefecto praeto-
rio.): Si quis decurionum vel rustica praedia vel urbana vel quaelibet mancipia venditor neces-
sitate coactus addicit, interpellet iudicem competentem omnesque causas singillatim quibus
stranguilatur exponat, ut mereatur valituram in perpetuum comparatori probata adsertione
sententiam. Ita enim fiet, ut nec inmoderatus venditor nec emptor inveniatur iniustus. Denique
nihil erit postmodum, quo venditor vel circumventum se insidiis vel obpressum potentia compa-
ratoris queri debeat, quandoquidem sub fide actorum et de necessitate distrahentis et de volun-
tate patuerit comparantis. Quod si quis contra vetitum occultis molitionibus per subpositas frau-
de personas cuiuslibet loci, quem tamen decurio distrahat, comparator exstiterit, sciat se pretio
quod dederit et loco, quem comparaverit, esse privandum. Later repeated in CJ 10.32.26. See
also CTh 12.3.2 (423).
 BETWEEN HEAVEN AND EARTH 141

a ‘necessity’ by secular authorities.65 In the same vein, Honorius declared

that if one should try to escape the compulsory public services that one is
due to perform and secretly sell one’s property, such attempts will be void
and one will be recalled to the services. It is also confirmed that the purchas-
er will be deprived of the price.66 Legislation against ‘flight of the councillors’
by no means ends with the Theodosian Code. We find further restrictions
in the Novellae introduced already during the reign of Theodosius II,67 as
well as in the laws given by Valentinian III,68 Majorian,69 and Zeno.70 The
trend finally peaked under Justinian.71
Certain later limitations also concerned slaves, who were either forbid-
den to join monasteries, or allowed to do so only with the consent of their
masters.72 The latter provisions were likely connected – at least in most of

65
See Laniado, ‘Early Byzantine state’ (cit. n. 8), pp. 24–25, esp. n. 38 (showing an example
of necessity for the sale of curial land). Also on that (following Laniado): Wipszycka, ‘Resources’
(cit. n. 6), p. 165.
66
Cf. CTh 3.1.8 (399).
67
Cf. CJ 10.35.1 (428); Nov. Th. 22.2 (443); see also CJ 10.34.2 (428).
68
Cf. Nov. Val. 32.5 (451).
69
Cf. Nov. Maj. 7.9 (458).
70
Cf. CJ 10.34.3 (476–480 or 484?).
71
Justinian maintained the laws of his predecessors, see CJ 10.32; 10.34; CJ 10.35 (passim).
For Justinian’s legislation regarding the possibility of leaving curial class, see esp. CJ 10.32.67
(529); cf., however, an exception outlined in CJ 1.3.52.1 (531); See further: Nov. 6.1.1 (535); Nov.
123.1 (546); cf. Nov. 137.2 (565). For more on Justinian’s laws regarding decurions, see:
A. Laniado, Recherches sur les notables municipaux dans l’empire protobyzantin, Paris 2002,
pp. 47–49 and 52–54.
72
With regard to the admittance of slaves to monasteries, the imperial legislation under-
went certain changes. In the Zenon’s law, the slaves are strictly forbidden to enter monaster-
ies (CJ 1.3.36; even if their owners willingly consent), to be admitted later (CJ 1.3.37) only on
the condition of their masters’ wish and awareness that if they grant their slaves the freedom
to pursue the monastic worship, they shall be stripped of ownership of these slaves while
they remain in a monk’s habit (cf. Chalc. Can. 4). Justinian (Nov. 5.2.1), in turn, decides further
that slaves are allowed to remain in the monastery without the knowledge of their masters
or even against their will, although only after a probation. All this is provided that it will not
be demonstrated that the slaves were hiding in the monastery in consequence of some mis-
deed. See also H. Bellen, Studien zur Sklavenflucht im römischen Kaiserreich, Wiesbaden 1971,
pp. 86–91.
142 MARZENA WOJTCZAK

the cases – to the arguments concerning the diminishing of private proper-

ty, which resulted from accepting such a person to a monastic community.
Similar restrictions, again being linked to protecting the interest of the state,
affected various civil officials and servants.73
The concerns exhibited in the above legislation by the emperors were
principally fiscal or administrative in character. One also notes that in cer-
tain cases there is a tendency to safeguard private property, so that the
owner does not suffer a loss unwillingly. These provisions, as already men-
tioned, were not directly targeted in their formulation at ecclesiastical pro-
prietary rights. For instance in case of CTh 12.1.63 – which concerned the
change of status rather than dispositions of curial propriety – it is above all
the abandonment of compulsory, public duties (admittedly, made for the
reasons of religion)74 that is being subject to sanctions. Undeniably, we may
indeed observe certain correlations between the growing monastic move-
ment and the accumulation and harshness of provisions introduced.75 This
seems to be, however, rather an answer to the current state of affairs,
according to which ratio legis of the introduced solutions remains
unchanged, namely guarding the interest of the state, not limiting the rights
of the Church and other ecclesiastical ‘bodies’.
In contrast to the bulk of legislation concerning pious donations made
by women, the literary sources (as investigated by Laniado) have little to
offer regarding the transfer of curial property to churches and monasteries
after the introduction of restrictions in 386.76 Even though explicit evidence

73
Cf. e.g. Nov. Val. 35.1.3 (452). On that legislation, see e.g. A. H. M. Jones, The Later Roman
Empire. A Social, Economical and Administrative Survey, Oxford 1964 [reprint: Baltimore 1986],
vol. 2, p. 931; Frazee, ‘Late Roman and Byzantine legislation’ (cit. n. 60), pp. 268–269.
74
It requires noting, however, that CTh 12.1 passim contains various laws dealing with
instances of evading public duties by the decurions where the religion is not always given as
the reason.
75
See Jones, The Later Roman Empire (cit. n. 73), p. 1064; W. Speyer, ‘Das christliche Ideal
der Geschlechtlichen Askese in seinen negativen Folgen für den Bestand des Imperium
Romanum’, [in:] M. Wacht (ed.), Panchaia. Festschrift für Klaus Thraede, Münster 1995, pp.
208–227, at pp. 224–225.
76
See Laniado, ‘Early Byzantine state’ (cit. n. 8), pp. 32–37 (with presentation of cases
known from the literary sources).
 BETWEEN HEAVEN AND EARTH 143

is lacking, we may observe that instances of joining the clergy or entering

monasteries by representatives of curial class indeed took place.77 In most
of the situations, however, we are left without the data necessary to ascer-
tain what happened to curial property. In face of the ambiguity of literary
sources, it is impossible to state with certainty whether the legislation was
observed.78 The literary sources also indicate that, among the monastic cir-
cles, the contents of the legislation had to be known.79 The provisions had
to – even if only potentially – make it difficult for the Church to acquire
new assets from landowners belonging to the curial class. In this case, how-
ever, the Church needs to be seen as one of the indirect addressees of these
laws, right next to other potential parties of all the legal actions aimed at
any alienation of curial property that was deemed unnecessary by the
state.

4. Acquisition of property by monastic communities

in the light of the papyri

The normative texts discussed above concerned most of all Church proper-
ty. Yet – needless to say – as far as our subject of interest goes, from the legal
perspective, donations made to the churches do not differ from those made
to the monasteries. I would like now to move forward to the analysis of

77
However, it seems that the renunciation of the world did not appear to be in fact wide-
spread within this specific social strata, see e.g. K. Heussi, Der Ursprung des Mönchtums,
Tübingen 1936, p. 303. We have much more evidence for the municipal councillors becoming
clerics and bishops, as noted by C. Rapp, Holy Bishops in Late Antiquity. The Nature of Chris-
tian Leadership in an Age of Transition, Berkeley 2005, pp. 183–188, at pp. 203–207.
78
However, it cannot be assumed that the imperial legislation was not observed based only
on the silence of sources. In this way also Laniado, ‘Early Byzantine state’ (cit. n. 8), p. 35.
Contrary to R. MacMullen, ‘Social mobility and the Theodosian Code’, JRS 54 (1964), p. 50.
79
Cf. e.g. E. de Stoop (ed. & tr.), Vie d’Alexandre l’Acémète [= PO 6.5], Paris 1911, pp. 645–
705, p. 673; D. Caner, ‘Life of Alexander Akoimētēs’, [in:] idem, Wandering, Begging Monks:
Spiritual Authority and the Promotion of Monasticism in Late Antiquity [= The Transformation
of the Classical Heritage 33], Berkeley 2002, pp. 249–280. For the critique of the text regarding
information on the imperial legislation, see Laniado, ‘Early Byzantine state’ (cit. n. 8), pp.
35–36.
144 MARZENA WOJTCZAK

papyrological attestations dealing with offerings of diverse character

received by monastic communities. This will place the earlier considerations
in a wider context of legal practice. The documentary sources – probably
due to their opacity and uneven distribution – have been largely neglected
in the legal discourse regarding pious gifts.80
The greatest difficulty with the analysis of donations made to the monas-
tic communities is that the majority of our sources stem from the sixth–
eighth centuries.81 Earlier material, dating back as far as the fourth century,
often depicts only the property owned by individual monks, and has very
little to offer on the beginnings of the process of acquisition of landed prop-
erty by monasteries (let alone the legal form of the performed acts).82 How-

80
In 1972, Ewa Wipszycka analysed the available source material from the perspective of
Church’s income and expenses, but did not consider the legal aspects of pious donations. In
her later works, Wipszycka focused on the economic context in which the monastic commu-
nities functioned in late antiquity. Her works exhaustively discuss the problems connected
with monks’ daily life, acquired income, organisation structures of monastic communities as
well as types of monastic dwellings. The legal matters, however, are treated only occasion-
ally. Cf. E. Wipszycka, Les ressources et les activités économiques des églises en Égypte du IV e
au VIII e siècle, Brussels 1972; Wipszycka, ‘Resources’ (cit. n. 6), pp. 159–263; Arietta Papacon-
stantinou, in turn, concentrates on the hagiographic aspects of pious donations and their
image in the papyrological evidence. Cf. A. Papaconstantinou, ‘Donation and negotiation:
Formal gifts to religious institutions in late antiquity’, [in:] J.-M. Spieser & É. Yota (eds.),
Donations et donateurs dans la société et l’art byzantins, Paris 2012, pp. 75–95, at p. 76.
81
See e.g. CPR X 122 (after 545); P. Cair. Masp. II 67151 (545/6); P. Cair. Masp. I 67003 (567);
P. Cair. Masp. III 67312 (567); P. Cair. Masp. I 67096 (573); PSI VII 786 (581); P. Cair. Masp. III
67324 (6th cent.); P. Oxy. XVI 1901 (6th cent.); P. KRU 105 (2nd half of the 6th cent.); SB I 5114
(before 630–640); P. CLT 1 (698); CPR IV 177 (7th cent.); CPR IV 32 (7th–8th cent.); P. KRU 69 (729
or 744); P. KRU 13 (733); P. KRU 106 (735); P. KRU 111 (770); P. KRU 109 (771); P. KRU 108 (8th
cent.). On the ecclesiastical and monastic property, see most of all Steinwenter, ‘Die Rechts-
stellung’ (cit. n. 14). For the analysis of later source material, cf. Wipszycka, Les ressources (cit.
n. 80), passim; G. Schmelz, Kirchliche Amtsträger im spätantiken Ägypten: nach den Aussagen
der griechischen und koptischen Papyri und Ostraka, Munich – Leipzig 2002, pp. 162–254.
82
We have only one clear attestation of a donation dating back to fourth century that was
made to the benefit of ‘the holy church’ by Flavius Abraham, ex-praepositus, i.e. P. Gron. 10.
For the plausible reasons behind this situation and the character of the papyrological find-
ings, see e.g. M. Choat, ‘Property ownership and tax payment in fourth-century monasti-
cism’, [in:] Boud’hors et al., Monastic Estates (cit. n. 13), pp. 129–140, at pp. 135–137. How-
ever, we come across indirect attestations of donations inter vivos and/or mortis causa made
to individual monks, see e.g. P. Oxy. XLVI 3311 (373–374), which is a petition to the curator
 BETWEEN HEAVEN AND EARTH 145

ever, as random as the papyrological documentation is, one may still feel
tempted – not at all unreasonably – to link this phenomenon to the inten-
sive spread of churches’ and monasteries’ foundations from the end of the
fifth throughout the sixth century.83 Thus the increasing number of dona-
tions in our documentation could be a by-product of the proliferation of
these institutions in the Egyptian landscape. It is obvious that the imperial
constitutions did not function in a vacuum. The introduction of laws found
in the Theodosian Code that limit certain kinds of donations to ecclesiastical
institutions should be perceived as an attempt to meet the demand of legal
practice or imperial legislative policy. Admittedly, the papyri contain no
traces that indicate the enforcement of the laws outlined above. In this case,
however, this silence could be deceptive. The difficulty of evaluating the
constitutions discussed above results from the selectiveness of the written
evidence, differences in the documentation practice, and the gradual
progress of the monastic movement in Egypt. This situation is hardly
improved in the later period. Although for this time sources of legal practice
are extant, they still fail to inform us how effective the imperial legislation
was at targeting the alienation of land encumbered with munera.84 What we

civitatis or logistes concerning an inheritance. The document mentions a transfer of property

belonging to a certain Gemellos to his relative Ammonios, a monk. The legal form of the act
(i.e. whether we are dealing with a donation mortis causa, a legate or heredis institutio) is not
certain. However, there appears to be no controversy as to the validity of Ammonios’s legal
title, since the authors of the petition – Cyrilla and Martha – do not raise any claims against
the monk (their doubts concern succession after Ammonios). For attestations of monks’ indi-
vidual property, see P. Herm. Landl. G505/F722 (350) that shows an apotaktikos Makarios
owning sixteen arouras of land located in Hermopolite; as well as: P. Neph. 48 (323?); P. Lips.
28 (381); PSI VI 698 (392); P. Oxy. XLIV 3203 (400); PSI XII 1239 (430); SB XIV 12021 (after 377).
More on these documents: Bagnall, ‘Monks and property’ (cit. n. 5), pp. 12–14; idem, Egypt
(cit. n. 7), p. 298; Choat, ‘Property ownership’ (cit. n. 82), pp. 129–130. For fourth-century
attestations of the property of monastic communities, see e.g. SB XXII 15311 (367/368?); P. Gen.
II 69 (4th cent.). It is also through hagiographical sources that we may observe the accumu-
lation of wealth for the early monasticism in Egypt, e.g. we find information on the dona-
tions made by Petronios upon entering the Pachomian congregation; see Vita Pachomii Grae-
cae 1, F. Halkin (ed.) [= Subsidia Hagiographica 19], Brussels 1932, §80 and Vita Pachomii
Bohairice scripta, L.-T. Lefort (ed.) [= CSCO 89, 107], Louvain 1953, §56.
83
See Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), pp. 81–82.
84
This is particularly symptomatic for the reign of Justinian, who, while promulgating a con-
146 MARZENA WOJTCZAK

can recover from the papyri is a picture from the reign of Justinian, not the
time period represented in the Theodosian Code. Nevertheless, later mate-
rial allows us to distinguish certain regularities which might hold also for
the preceding period. Both the patterns of acquisition of landed estates by
monks and monasteries, as well as the frequency of disputes linked to such
donations, demonstrate the existence of a certain tension in the legal prac-
tice and provide insight into the broader context within which these consti-
tutions were introduced. Our task is then to try to grasp the practices pre-
sent in our documentation, and to answer the question: ‘How did the
legislative activity of the capital functioned within this framework?’
The available documentation is insufficient to assess precisely the prop-
erty belonging to the monasteries or their monks in late antiquity.85 Still,
thanks to the papyri we can observe the scale and importance of the engage-
ment of various monastic communities and their members in the process of
acquisition and use of worldly possessions. In the light of tax registers from
Egypt, it is highly likely that individual monks and monasteries paid taxes
for the land that they owned.86 What remains less clear, however, is the per-

siderable number of constitutions in regard to receiving donations inter vivos and mortis cau-
sa by Church and monasteries, as well as inheriting after monks belonging to the community,
simultaneously clearly aggravates the laws against the alienation of curial land and leaving
the curial class. Justinian’s legislation coincides with the growing number of churches and
monasteries (that is visible in our sources from the end of the fifth century and in the early
sixth century). Some of the issued laws appear to answer controversies appearing in the legal
practice, cf. e.g. CJ 1.2.19; 1.2.25. For Justinian’s laws and further conceding approach towards
the pious donations, see e.g. CJ 1.2.19; 1.2.22–23, 25; 1.3.45; 1.3.48. Book 1.2 contains also ear-
lier legislation on Church proprietary rights and donations made to religious institutions (see
esp. CJ 1.2.1; 1.2.13; 1.2.15). Naturally, not all of them are favourable to the Church, cf. e.g. CJ
1.2.20. Also in regard to pious donations, see CJ 1.3.24; CJ 1.3.28. For monastery’s rights on
inheriting after monks belonging to the community and on transfer of property of prospec-
tive monk on entering the monastery, see CTh 5.3.1=CJ 1.3.20; CJ 1.3.38. For Justinian’s laws
against ‘the flight of the councillors’, see n. 71.
85
On that Wipszycka, ‘Resources’ (cit. n. 6), pp. 170–171.
86
See e.g. Choat, ‘Property ownership’ (cit. n. 82), pp. 130–131, 135. Naturally, the docu-
mentation at hand provokes questions such as whether the property owned by monks could
be administered by the monasteries and whether the monasteries took collective responsibil-
ity for the tax duties. Cf. Bagnall, Egypt (cit. n. 7), p. 290; Goehring, Ascetics, Society and the
Desert (cit. n. 6), pp. 49-50.
 BETWEEN HEAVEN AND EARTH 147

formance of munera, with which the landed property could be burdened.87

A particular example of sources attesting to tax duties of monastic commu-
nities is offered by two large documents from Aphrodito: (i) a fiscal register
of money taxed on land dating to 525/526 (P. Aphrod. Reg.), and (ii) a cadas-
tre drafted c.523 (SB XX 14669).88 The famous (and intensively studied) cadas-
tre outlines the dominance of religious institutional landholding in Aphro-
dito.89 Monastic communities appear in the entries of the tax register and
the cadastre as owners or co-owners of land, tenants, and fiscal intermedi-
aries. These sources point at the role played by landed property in the monas-

87
See Wipszycka, Moines et communautés (cit. n. 6), p. 524; eadem, ‘Resources’ (cit. n. 6),
p. 166, with reference to the curious case of boats belonging to the monastery that transport-
ed grain to Alexandria.
88
The cadastre contains a list of landholdings located in Aphrodito and registered in the
astika-category that were burdened with fiscal liabilities. The information we draw from the
cadastre enables us to see the scale of monastic holdings and trace the possible methods of
land acquisition. This information can be further supplemented by data from the Aphrodito
fiscal register (P. Aphrod. Reg.) which records different tax payments made by both indivi-
duals and institutions for parcels in the kometika-category.
89
We need to remember, however, that the situation depicted in the cadastre was a result
of a long process of accumulation of landed property by monastic communities that started
most probably already in the fifth century. Such practice has been shown for the monastery
of Abba Sourous (the largest landholder of astika in the Aphrodito cadastre) by Giovanni
Ruffini, cf. G. Ruffini, ‘Aphrodito before Dioskoros’, BASP 45 (2008), pp. 225–239, at pp. 228–
230. Ruffini also persuasively argued for the network-driven nature of land acquisition in
Aphrodito, that as a broader pattern can also be applicable for the monastic milieu of the
region. Cf. G. Ruffini, Social Networks in Byzantine Egypt, Cambridge 2008, pp. 147–197.
Another – however later – fiscal register containing data on the monastic landed property
has been published by Jean Gascou and pertains to the Hermopolite nome, see J. Gascou, Un
codex fiscal hermopolite (P. Sorb. II 69), Atlanta 1994. Cf. on the ecclesiastical endowments in
the West and the transfer of land becoming much more significant in the course of the fifth
century and thereafter: I. Wood, The Transformation of the Roman West, Kalamazoo – Brad-
ford 2017, pp. 91–108. However, the majority of information for the acquisition of estates by
the monastic communities in the West belongs to the late seventh century and beyond (‘The
major transfer of property to monasteries obviously went hand in hand with the increasing
number of monastic foundations that are a mark of the seventh century’; at p. 100). Wood
marks also as striking the relatively little influx of legislation on the ecclesiastical acquisition
of land in the fourth and fifth century (especially when compared to the sixth and seventh
century).
148 MARZENA WOJTCZAK

tic communities, and offer a convenient starting point for the discussion on
the practical dimensions of pious donations, offerings, and testamentary
bequests made to the monasteries, as well as their social setting. Undoubt-
edly, landholding served as a backbone, securing the position of a monastery
in the surrounding area and assuring the influx of means necessary in order
to secure the community’s sustenance.
Strategies for accumulation and use of land varied depending on the type
of the community, the particular needs of monks, and/or the decisions of
their administrators.90 On the one hand, we have property-owning monas-
teries; on the other, we have property-owning monks. Both categories could
be driven in their decision-making process by their interest and specific cir-
cumstances. In more general terms, among the main forms of property acqui-
sition (especially land) that had substantial influence on the material growth
of the monastic community, we can list various donations (both inter vivos
and mortis causa).91 Monks as well as monastic communities could also
acquire land and other belongings by means of other legal acts such as pur-
chase or exchange. It should be also kept in mind that monks, while entering
the monasteries, could contribute to the community with their ‘worldly pos-
sessions’. The fate of such property, however, depended on the will of the

90
A variety of solutions existed between the two main literary models, i.e. (i) the anchorite
monks, who were allowed to retain their property on condition of not getting attached to it,
and (ii) the cenobitic monks affiliated to Pachomian or Shenoutean congregations, who were
expected to renounce all private possessions and thus depended entirely on their community.
The papyri offer ample proof of property-owning monks who lived in communities which had
certain communal assets at their disposal. Property acquisition for holy purposes apparently
did not constitute a breach of the rule of the Christian poverty; see e.g. D. Caner, ‘Wealth,
stewardship, and charitable “blessings” in early Byzantine monasticism’, [in:] S. R. Holman
(ed.), Wealth and Poverty in Early Church and Society, Grand Rapids 2008, p. 224; idem,
‘Towards a miraculous economy: Christian gifts and material “blessings” in late antiquity’,
JECS 14 (2006), pp. 329–377; A. López, Shenoute of Atripe and the Uses of Poverty: Rural Patron-
age, Religious Conflict and Monasticism in Late Antique Egypt, Berkeley 2013, passim.
91
For donations as one of the sources of ecclesiastic and monastic landholdings, see e.g.
R. Rémondon, ‘L’Église dans la société égyptienne à l’époque byzantine’, CdE 47 (1972), pp.
254–277, esp. pp. 272–273; Wipszycka, Les ressources (cit. n. 80), pp. 36–37; eadem, ‘Resources’
(cit. n. 6), pp. 159–263. In comparison, on a Christian ‘spiritual economy’ and ecclesiastical
endowment in the West, see most recently Wood, Transformation (cit. n. 89), pp. 91–108.
 BETWEEN HEAVEN AND EARTH 149

prospective monk.92 He could also leave it at his disposal and retain complete
freedom of alienation. In the latter case, the monk could later pass his assets
through a testament to an heir of his choice and make testamentary disposi-
tions to the benefit of other entities.93 This diversity of available scenarios
translates well into difficulties with assessing the size of the community’s ini-
tial holdings, as well as with distinguishing which parcels were acquired by
the community, and how. It is thus impossible to go directly from the list of
patterns for property acquisition visible in papyri to any rigid estimation as
to which of these strategies proved more effective or at least was more often
encountered in practice. Papyri provide us with only random information
about the transfer of particular parcel or specific house and thus rarely allow
us to calculate – even roughly – the assets belonging to the monasteries in
total.94 Nevertheless, even based on such selective data it is possible to state
that the monastic estates must have at times been of considerable size,

92
See e.g. P. Cair. Masp. I 67096 (573), in which we find information on a donation made by
a monk and priest named Psa/Psates to the monastery of Apa Apollos. For more on this doc-
ument and the story behind donation, see G. Ruffini, Life in an Egyptian Village in Late Antiq-
uity, Cambridge 2018, pp. 117–118.
93
On the economic aspects of various monastic communities, see most of all Wipszycka,
Moines et communautés (cit. n. 6), pp. 471–565 (with references to sources and further literature).
The fact that monasteries could inherit property after the members of their community allowed
to amass a considerable wealth that in large part consisted of real estates. Our sources also show
that monasteries took interest in the possessions of their members. Cf. e.g. P. Cair. Masp. I 67069;
P. Alex. inv. 689 recto + P. Cair. Masp. II 67176 recto with additional unpublished fragments =
P. Cair. Masp. III 67353 recto (forthcoming edition by Anne Boud’hors). The latter papyrus out-
lines a controversy over a cell – earlier belonging to a former monk, who died – between monk’s
children and the heirs of Apa Papnoute, probably administrator or head of the monastery. The
cell was apparently ceded to Apa Papnoute by the plaintiffs’ mother, who in response to this act
had brought a counterclaim in regard to the ownership of the cell. More on the background of
the dispute, see Ruffini, Life in an Egyptian Village (cit. n. 92), p. 116–117. For other examples of
women administering or alienating the property in current or former possession of monasteries
and monks, see e.g. P. Duk. inv. 728 (see J. R. Combs & J. G. Miller, ‘A marriage-gift of part of
a monastery from Byzantine Egypt’, BASP 48 [2011], pp. 79–88); P. Oxy. XVI 1890.
94
With the exception of the data concerning Aphrodito obtained on the basis of cadastre
and fiscal register, cf. C. Zuckerman, Du village à l’Empire: autour du registre fiscal d’Aphro-
ditô, Paris 2004; J. Gascou, ‘Le cadastre d’Aphroditô (SB XX 14669)’, [in:] idem, Fiscalité et socié-
té en Égypte byzantine, Paris 2008, pp. 247–305; L. S. B. MacCoull, ‘Monastic and church land-
holding in the Aphrodito cadaster’, ZPE 178 (2011), pp. 243–246.
150 MARZENA WOJTCZAK

extending beyond the local landscape. Such estates were not created
overnight, but were the effect of a long-term accretion.
Pious gifts in the papyri were narrowed down by Arietta Papaconstanti-
nou to two basic categories, i.e. offerings (προσφοραί) and donations
(δωρεαί).95 The former were claimed to usually consist of goods intended for
consumption, liturgical purposes, or redistribution during charitable activity,
whereas the latter were described as aimed at increasing the economic assets
of the given institution and comprised fixed assets, such as real estate or mov-
able property. To my mind, however, this distinction not always stands a trial
when confronted with documents belonging to the monastic milieu. At times,
what seems to emerge from the sources is a rather blurred and intertwined
application of both terms, quite irrespectively of the content of the given
offerings/donations.96 The attestations for these acts comprise mostly account
books, various receipts, as well as separate deeds of donation and testamen-
tary bequests. It has been observed that the donations and bequests are much
less numerous in our documentation than offerings.97 This is caused by the
influx of documents coming from the Apion archive which concern mostly
the estate accounts of the family of great senatorial landowners in middle
Egypt. The Apionic texts mention several monasteries, to which offerings

95
See Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), p. 76.
96
See e.g. P. Cair. Masp. III 67312, in which Flavius Theodore, a childless member of the staff
of the provincial governor of the Thebaid, leaves all of his land (except for a farm for his
grandmother) in the Hermopolite, Antinoopolite, and Panopolite nomes to the monasteries
of Apa Shenoute and Apa Moses. The share in the inheritance (in this case the income from
the land) is to be used on ransoming captives and other pious distributions. Flavius Theodore
also orders to sell everything that he earlier obtained from his wife (the objects are not
defined precisely) and to use the price of sale as prosphora, in order to finance a commemo-
rative mass for his deceased wife; P. Cair. Masp. I 67003, in which the parcels of land are given
for prosphora and agape; P. Cair. Masp. II 67151 that is the testament of Flavius Phoibammon,
in which a bequest of one aroura of vineyard is made to the Antaiopolite monastery of Apa
Jeremias; the income from the land was supposed to secure the prosphora for the testator.
97
For literature and sources on offerings, see e.g. E. R. Hardy, The Large Estates of Byzantine
Egypt, New York 1931, pp. 140–145; Wipszycka, Les ressources (cit. n. 80), pp. 64–92; see also Papa-
constantinou, ‘Donation and negotiation’ (cit. n. 80), pp. 76–77. As observed by Papaconstanti-
nou, to date the archive of the monastery of St Phoibammon in Western Thebes is the most abun-
dant in evidence of pious donations. This is mostly so not because the monastery was particularly
wealthy, but probably due to the erratic distribution of the papyrological evidence.
 BETWEEN HEAVEN AND EARTH 151

were made in the form of regular subventions.98 Yet, the papyri provide us
also with sufficient proof that lay people transferred or ordered their heirs to
transfer land, buildings or parts of them, movables, livestock, labour (in case
of donation of individuals)99 as well as money to monks and monasteries as
pious gifts.100 There is no space (or need) here to present all the pertinent
source material. The list of papyri dealing with donations given to Church
institutions, known either through the separate deeds or testaments, has
already been made available and commented on by Papaconstantinou.101 I will
bring up and discuss here only few documentary examples as a case study.

98
See Wipszycka, ‘Resources’ (cit. n. 6), p. 168. There have been controversies regarding the
scale of Apionic involvement in the functioning of the monasteries as well as the dependence
of the monasteries on the offerings coming from the great landowners. Recently, Joanna Weg-
ner in her doctoral dissertation (Monastic Communities in Context: Social and Economic Interre-
lations of Monastic Institutions and Laymen in Middle Egypt, 6th-8th century, University of War-
saw, 2017) proposed that ‘instead of counting the donations into “the package of aids”, we
should perhaps view them as offerings intended for charitable redistribution, and focus on their
symbolic meaning rather than build hypotheses on the degree of dependence of monasteries
on estates’. See also cases of private foundations of monasteries as for instance of the
monastery of Apa Apollo, founded by Apollos, father of Dioskoros of Aphrodito (see e.g.
P. Cair. Masp. I 67096 [573/4]). John Philip Thomas interpreted also the monastery of Apa Age-
nios, administered by comes Ammonios and Apollos, as a private establishment of the former
(J. Ph. Thomas, Private Religious Foundations in the Byzantine Empire, Washington 1987, p. 89).
99
For the donations of children, see A. Papaconstantinou, ‘Notes sur les actes de donation
d’enfants au monastère thébain de Saint-Phoibammon’, JJurP 32 (2002), pp. 83–105; eadem,
‘Θεία οἰκονοµία: Les actes thébains de donation d’enfants ou la gestion monastique de la
pénurie’, Mélanges Gilbert Dagron [= TravMem 14], Paris 2002, pp. 511–526; T. S. Richter,
‘What’s in a story? Cultural narratology and Coptic child donation documents’, JJurP 35
(2005), pp. 237–264. Cf. also P. KRU 96; P. KRU 78; P. KRU 79. It should be, however, stressed
that such practice can only be observed for the monastery of St Phoibammon. This fact
excludes the possibility of drawing any general conclusions based on the available material.
100
Cf. Wipszycka, ‘Resources’ (cit. n. 6), p. 167 (with further references to literature).
101
Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), pp. 78–80, gathers thirty-five
papyri concerning donations made to religious institutions (coming mostly from the sixth–
eighth century; only one example dates from the fourth century). The attestations pertain to dif-
ferent ecclesiastical institutions among which monasteries are best represented (located partic-
ularly in the Theban region, but we also have examples from Memphis, Aphrodito, Antinoopolis,
Hermopolis, Apollonopolis Magna and Oxyrhynchos). This list can be supplemented by, e.g.,
P. Cair. Masp. I 67096 (Aphrodito, 573); PSI VII 786 (Hermopolite nome, 581); P. Köln X 421
(Aphrodites Kome, 6th cent.); P. CLT 1 (Thebes, 698); P. Ryl. Copt. 294 (Wadi Sarga, 7th–8th cent.).
152 MARZENA WOJTCZAK

By far, the biggest group of attestations mention that charitable dona-

tions were made in order to guarantee salvation of the soul, remittance of
the sins, or mercy at God’s tribunal. The practice of appointing religious
institutions as heirs or legatees was undoubtedly linked to the desire to
ensure the prayers and ceremonies for salvation and peace of testator’s soul.
Two documents belonging to the famous Aphrodito dossier can serve as
examples of testamentary bequests made to the monastic communities. These
were prepared by Dioskoros for two representatives of the Antinoopolite
elite, namely Flavius Theodoros (P. Cair. Masp. III 67312; 567) and Flavius Phoi-
bammon (P. Cair. Masp. II 67151 and 67152; 570).102
In the testament of Flavius Theodoros, the entire property belonging to
him is distributed among the monasteries of Apa Shenoute in the Panopolite
nome and of Apa Mousaios in the Hermopolite nome, as well as testator’s
maternal grandmother Herais.

P. Cair. Masp. III 67312, ll. 52–61: βούλο[̣µαι δ]ὲ. τοίνυν καὶ κελεύω Πέτρον
τὸν εὐλαβέστατον ἀρχιµ.ανδρίτη[ν], ἤτοι τὸ δίκαιον το(ῦ) αὐτο(ῦ) εὐ. αγοῦς
µονασ. τηρίο(υ) ἄπα Σενούθου, ἔχει.ν. εἰς τὴν ἰδίαν ἔνστασιν πάντα τὰ παρʼ
ἐµο(ῦ) ἐν καιρῷ τελευτῆς καταλειφθησόµενα ἀκίνητα πράγµατα κατὰ τε τὸν
Ἑρµουπολίτην καὶ Ἀντινοίτην καὶ Πανοπολίτην τοὺς νοµοὺς, ἢ καὶ κατʼ ἑτέ-
ρους ὡς εἰκὸς διαγεῖται τόπους ἔχειν δὲ οὐδὲν ἧττον εἰς τὴν ἰδίαν ἔνστασι[ν
κ]α. ὶ πά. ντα τὰ κατὰ τὴν Ἀντ. ι(νοέων) ἢ κατὰ τὴν Ἑρµουπολιτῶν διακειµένα
παντοῖ.ά µο(υ) πράγµατα ἀκιίνητα.

I want and order that Petros, the most pious archimandrite, and the dikaion
of the same holy monastery of Apa Shenoute, have as their inheritance all
immovable goods left by me at the moment of my death in the Hermopolite,
and Antinoite, and Panopolite nomes, and in other likely places, and to have
not less as their inheritance, and all my immovable goods situated in Anti-
103
noopolis and in Hermopolis.

102
For more information concerning the life and career of Dioskoros, see L. S. B. MacCoull,
Dioscorus of Aphrodito: His Work and His World, Berkeley – Los Angeles – London 1988, espe-
cially pp. 9–15. For more information on the archive and Dioskoros’ family, see J.-L. Fournet
& C. Magdeleine (eds.), Les archives de Dioscore d’Aphrodité cent ans après leur découverte:
histoire et culture dans l’Égypte byzantine: Actes du Colloque de Strasbourg, 8–10 décembre 2005,
Paris 2008; most of all J.-L. Fournet, ‘Archive ou archives de Dioscore? Les dernières années
des ‘archives de Dioscore’’, ibidem, pp. 17–30.
103
Tr. after Nowak, Wills (cit. n. 18), p. 419.
 BETWEEN HEAVEN AND EARTH 153

As is clear, a significant part of testator’s property went to the Panopolite

monastic community.104 Moreover, the archimandrite Petros was also sup-
posed to sell the family house in Antinopolis that Theodoros inherited from
his father as well as everything that was left to Theodoros by his wife. The
testament specifies that revenue obtained from the transaction should be
spent on ransoming captives, the wife’s prosphora, and other pious distribu-
tions. The testator also decided that the income from the immovable prop-
erty assigned to Apa Shenoute should be used for pious purposes, whereas
the movable property left to the monastery of Apa Mousaios was to be spent
on distributions that would please God. Theodoros’s aim was to safeguard
the salvation of his soul.
In turn, in the testament of Flavius Phoibammon (P. Cair. Masp. II 67151)
we find a bequest of one aroura of vineyard made to the Antaiopolite
monastery of Apa Jeremias (with reservation that the fiscal liabilities are to
be discharged by the testator’s family).105 The income from the land was sup-
posed to secure the prosphora of the testator. Interestingly enough, it was the
monastery that was given the right of choice of the aroura from the larger
tract of land that had been left to Phoibammon by his father. Moreover, the
monastery is given one of two boats that Phoibammon had in his possession
at the moment of death. It is said that the boat had been purchased by
Phoibammon from the people of Antaiopolis, and the testator emphasizes his
intention to surrender the document of sale together with the boat and its
equipment.106 Perhaps such a disposition could be explained by the testator’s
wish to secure the monastery against any future attempts to undermine the
bequest should there be any doubts as to Phoibammon’s title of ownership in
regard to the boat.107

104
The generosity of the faithful in case of the estates left to the religious institutions could
exceeded the value of property left to the testator’s family; for further examples, see e.g. P. Oxy.
XVI 1901; P. Bodl. I 47.
105
See: P. Cair. Masp. II 67151, ll. 101–160. On the arrangements concerning fiscal liabilities
burdening property bequeathed to monasteries, see Thomas, Private Religious Foundations
(cit. n. 98), p. 82 (with references to further sources and literature).
106
See P. Cair. Masp. II 67151, ll. 278–279.
107
See P. Cair. Masp. II 67151, ll. 275–285. Probability of such solution has been also suggested
by Wegner in her dissertation Monastic Communities (cit. n. 98). On boats owned by monas-
154 MARZENA WOJTCZAK

It is worth stressing that both texts have been suspected to be only drafts
of testaments rather than the definitive documents.108 For our purposes,
however, this fact is irrelevant as even as drafts these texts would still pro-
vide proof of the existence of specific practices. The documents must have
been composed in accordance with the legal, social, and religious standards.
The property is bequeathed to monasteries, and the revenue from the testa-
tor’s property were to serve pious purposes and thus help the testator’s soul
attain salvation. Moreover, in both documents we find information on the
testators’ expectations towards monastery representatives. In P. Cair. Masp.
II 67151, one request of Flavius Phoibammon concerns the possibility of
burial of the testator in the monastery, and another concerns adding his
name to the list of people commemorated during the services in the monas-
tic church.109 Further, the prior of the monastery is appointed to deal with
certain ‘worldly affairs’ of the deceased donor. Phoibammon chooses Apa
Besas as a curator of his minor sons and overseer of their property until
their coming of age.110 The prior is also asked to deal with the testator’s

teries in Egypt, attested in literary sources and papyrological documentation, see Wipszycka,
‘Resources’ (cit. n. 6), pp. 216–219. See also N. Gonis, ‘Ship-owners and skippers in fourth-
century Oxyrhynchus’, ZPE 143 (2003), pp. 163–165.
108
Especially in case of P. Cair. Masp. II 67151, which has been analysed by Maria Nowak.
The very rich language and prolixity of the document (even for Dioskoros’ standards) calls
for cautiousness. Further, as pointed out by Nowak, the document fails to provide key infor-
mation such as the names of the heirs or the dates, which makes one wonder whether this is
the final version of the document. See Nowak, Wills (cit. n. 18), pp. 101, 156, 170.
109
P. Cair. Masp. II 67151, ll. 160–168. The practice of prestigious burials of laymen near
monasteries is know to us also from the archeological findings dated to the Byzantine period;
see e.g. I. Zych, ‘Cemetery C in Naqlun: preliminary report on the excavation in 2006’, PAM
18 (2008), pp. 230–246; W. Godlewski & B. Czaja-Szewczak, ‘Cemetery C.1 in Naqlun. Tomb
C.T.5 and its cartonnages’, PAM 18 (2008), pp. 247–260; D. Dzierzbicka, ‘Footwear from Ceme-
tery C at Naqlun. Preliminary report’, PAM 18 (2008), pp. 261–267.
110
In this context, we can also conjecture that the generous bequest in favour of the monastery
could have an additional aim. The motivation could in fact be slightly more ‘earthly’, namely
to secure that Apa Besas would take good care of Phoibammon’s children and their property
after his death. See on that MacCoull, Dioscorus of Aphrodito (cit. n. 102), p. 51. On guardian-
ship, see e.g. T. S. Miller, The Orphans of Byzantium: Child Welfare in the Christian Empire,
Washington 2003, pp. 78–107. Cf., however, Justinian’s constitution stating that monks shall not
only be exempt from guardianship, but also from the curatorship: CJ 1.3.51 (531).
 BETWEEN HEAVEN AND EARTH 155

financial obligations. Similar requests addressed to the representatives of

the monasteries are included in P. Cair. Masp. III 67312. This time, Flavius
Theodoros orders the priors of the monasteries of Shenoute and Apa Mou-
saios – Petros and Phoibammon respectively – to provide twelve solidi a year
to a woman, Tadelphe, and her daughter Leontia.111
Cases where testators bind monks to take specific action are found in our
corpus more frequently than one might suspect. These cases testify to the
high esteem enjoyed by the monasteries in local communities. The above-
mentioned solutions are also proof of the involvement of monks and monas-
teries in earthly matters and make it likely that the beneficiaries of the
bequests deserved both the donated property as well as the fulfilment of the
testator’s last will. Similar patterns could have served as inspiration for the
earlier imperial legislation, namely Nov. Marc. 5, that recalls the case of Hypa-
tia, who with full awareness chose the priest Anatolius to be the executor of
her testament.112
Of particular interest are the rather numerous papyri that attest donations
made by women to monastic communities. A text – this time from Apollono-
polis Magna – SB I 5114 (before 630–640) mentions a donation made by
Tachymia, daughter of Sansnotus, to the monastery of Abba Cyrus.113 It is
a sale agreement of one third of a house formerly belonging to the late woman
that was concluded by the monastery some time after the death of the donor.
The donation could have been made in the form of a bequest; it is more likely,
however, that the share of a house was transferred still during the life of
Tachymia, since the document mentions a donation deed (δωρεαστική).114
An interesting example of a donation can be also seen in a late Coptic
papyrus from the Theban region: P. KRU 106 (735). According to the docu-
ment, a woman called Anna, daughter of the blessed Iohannes and the
blessed Taham, being aware of approaching death caused by sickness, decid-
ed to donate a substantial part of her property (the house that she inherited

111
P. Cair. Masp. III 67312, ll. 104–108. See also ll. 52–84, which concern other dispositions
left to Petros and Phoibammon, as outlined above.
112
See Nov. Marc. 5, cited above.
113
SB I 5114, ll. 13–15.
114
SB I 5114, l. 13.
156 MARZENA WOJTCZAK

from her father, half-share of her mother’s house, her share in the land co-
owned with certain Abraham, son of Athanasios and the share of one fourth
of a bakery) to the monastery of Apa Paulos in exchange for prayers for the
preservation of her soul.115 P. KRU 106 is especially worth attention since it
includes a number of biblical quotations that go in line with the prevailing
hagiographical discourse on the donations piae causae and the importance
of alms. The document was drafted by Hementsneu, son of Shenoute, the
priest of the church of Jeme.116
The available documents attest to numerous pious gifts made by both men
and women of various social and economic backgrounds.117 The social ori-
gin of donors varied considerably. Yet it is likely they still needed to be

115
P. KRU 106, ll. 57–77. Cf. also T. G. Wilfong, Women of Jeme. Lives in a Coptic Town in
Late Antique Egypt, Ann Arbor 2002, pp. 85–86.
116
Although the fact that the document was drafted by the priest of the church of Jeme
brings to mind controversies around the involvement of clergy in the process of property
acquisition from widowed women (as outlined in the earlier imperial legislation), drawing
any conclusions from this would be far-fetched. Admittedly, it is not the only case when such
a document is drafted by a member of clergy or a monk. However, even for the period in
which the monastic communities were already firmly established in Egypt, such practice is
not particularly well attested. One should not, therefore, place too much value on this phe-
nomenon (cf. e.g. Papaconstantinou, ‘Donation and negotiation’ [cit. n. 80], p. 88). We can-
not exclude the possibility that our sources paint a picture of local particularities and a spe-
cific community. The existence of such a practice – even on a lesser scale than advocated by
Papaconstantinou – could be explained by how strongly the monastic communities were
embedded in the Egyptian landscape as well as the role they played together with churches
in the local communities of late antiquity. It seems that the clergy of various ranks and some-
times even monks tended to be a frequent choice when one was in need of resolution of
a conflict (through private means of dispute resolution); see M. Wojtczak, Arbitration and
Settlement of Claims in Late Antiquity, forthcoming. Similar tendency could occur when par-
ties found themselves in need of drafting a document or of esteemed witnesses for the con-
cluded deeds. In this light the monastic interactions with the outside world were hardly mar-
ginal, contrary to what the literary sources would have us believe. Moreover, the papyri
indicate that some communities were indeed active economic and religious centres. Within
the context of drafting legal documents by ecclesiastics, cf. the limitations imposed by CJ
6.23.23 on the defensor ecclesiae in regard to their assistance in drawing up and opening of
the testaments. On that most recently Norman Underwood in a paper ‘Ordained lawyers or
inquisitors? Defensores ecclesiae and deviance in late antiquity’ given during the conference
Clerics in Church and Society up to 700, University of Warsaw, 26–27 April 2019.
117
Cf. e.g. CPR IV 32; P. KRU 69; P. KRU 54; CPR IV 33.
 BETWEEN HEAVEN AND EARTH 157

affluent.118 Papyrological evidence allow us to classify them as members of

local elites, representatives of lower aristocracy, as well as landowning vil-
lagers.119 Our source corpus not only constitutes a proof for the accumula-
tion of landed property by monks and monasteries and allows to list dona-
tions among the most frequent manners of acquisition, but it also offers us
an insight into the expectations lay donors had when bequeathing their
property to monastic communities.
Just attestations of donations made to the monastic communities are
insufficient, however, to establish anything beyond the fact that such prac-
tice took place.120 We would prefer to have more data than is extant. The
distribution of the land belonging to individual monasteries often simply
suggests that a popular method of acquiring them was through donations.
We are then dealing with bequests comprising land to the monasteries,
which in effect led to the existence of a patchwork of holdings (at times
even scattered around various locations).121

118
Naturally, except for when the donations included children (or rather their work to the
monastery’s benefit). This was one of the forms of pious donations also (but not exclusively)
available to the lower strata of local communities, who had no land or movables to give
away. Numerous documents from the eighth century – yet all coming from the monastery of
Saint Phoibammon – can serve as an example of using labour of an individual as an item of
exchange in transactions. On that, see Papaconstantinou, ‘Notes sur les actes de donation’
(cit. n. 99), pp. 83–105; Richter, ‘What’s in a story?’ (cit. n. 99), pp. 237–264. As already noted,
due to the nature of the evidence which in principle is limited to only one monastic commu-
nity, one should avoid drawing any general conclusions.
119
On that, see e.g. Wipszycka, ‘Resources’ (cit. n. 6), pp. 163–172; Papaconstantinou, ‘Dona-
tion and negotiation’ (cit. n. 80), p. 81; Wegner, Monastic Communities (cit. n. 98). What is strik-
ing is the lack in our papyrological corpus of attestations of private endowments and equipping
of the monastery by representatives of the highest, senatorial classes, such as e.g. the Apions.
In the case of the latter, however, we come across texts connected to the numerous and regular
subventions to individual monastic communities that consisted most frequently of wheat, bar-
ley, wine and vinegar, money, oil, and wood.
120
Cf. e.g. Steinwenter, ‘Byzantinische Mönchstestamente’ (cit. n. 9), pp. 55–64; E. Wipszy-
cka, ‘Les aspects économiques de la vie de la communauté de Kellia’, [in:] P. Bridel (ed.), La
site monastique copte des Kellia. Sources historiques et explorations archéologiques, Geneva 1986,
pp. 117–144; J. E. Goehring, ‘Monasticism in Byzantine Egypt: Continuity and memory’, [in:]
R. S. Bagnall (ed.), Egypt in Byzantine World, 300–700, Cambridge 2007, pp. 390–407; Bagnall,
‘Monks and property’ (cit. n. 5), pp. 7–24; Choat, ‘Property ownership’ (cit. n. 82), pp. 129–140.
121
See Wipszycka, Les ressources (cit. n. 80), pp. 36–38; Wipszycka, ‘Resources’ (cit. n. 6), pp.
158 MARZENA WOJTCZAK

We should thus turn our attention to papyri that show the atmosphere
accompanying the pious donations. In most cases, all we learn is that donations
to religious institutions took place, and there is hardly any hint with regard to
the context of such gifts. Some instances, however, indicate that this practice
could spark disputes and lead to lawsuits. Scenarios of this kind were particu-
larly plausible in case of the closest relatives of the deceased when the testator
had reduced the family property beyond the common practice or managed it
in such a way that the heirs were left mainly, or even only, with debts to pay.
Already in the case of Flavius Phoibammon discussed above, we find stan-
dard provisions that were given in the testament in order to avoid the risk of
future disputes.122 We can also see a clear indication of these concerns in the
testament of Aurelius Panchab (P. Cair. Masp. III 67324) drawn up before 525–
526. The testator encourages the representatives of monastic community to
proceed with a claim against his heirs:

P. Cair. Masp. III 67324, ll. 2–8: βούλοµαι δὲ καὶ το(ῦ)το, ὡς εἰ συµβαίη τῇ
ῥᾳθυµ.[ίᾳ τὰς κληρο(νόµους) µου] θυγατέρας οὔσας µὴ κατ. αβα̣[λ]εῖ[ν] ε. ὐ. -
[γνω]µόνως, ἢ τοὺς κληρονόµο(υ)ς αὐτῶν, τὴν προορισθεῖσαν παρʼ ἐµο(ῦ)
προσφ. [ο]ρὰν τῷ ἁγίῳ µοναστηρίῳ σίτου τε καὶ οἴν. [ο(υ)] τ. [. .]χ[. .]τ. ο. (υ) τρυ-
γηθέντος, κελεύω τ. ὸν εὐλαβέστατον πρεσβύτερον το(ῦ) αὐτο(ῦ) µοναστη-
ρίο(υ) καὶ τοὺς ἐν αὐτῷ `εὐλαβ(εστάτους)´ µονάζον. τας ἀπαιτῆσαι τατας
(l. τα(ῦ)τα) ἑκόντας καὶ ἄ. κοντας διὰ παντὸς, πρὸς τῷ ἀκαταγνώστως προβῆ-
ναι τὰ τῆς ἁγίας προσφορᾶς εἰς ἀ. ε[ὶ] τοὺς ἀποθανόντας προσδοκεῖν.

I also want the following: if it happens that by negligence my heirs, that is my

daughters, or their heirs, will not pay gratefully to the holy monastery the
prosphora of wheat and wine determined by me, gathered ... I order that the
most pious presbyter of this monastery and the most pious monks belonging
to this monastery demand them by all means – no matter whether willingly
or not – in order to prepare the things pertaining to the holy prosphora, unex-
123
ceptionably for ever, for the commemoration of the deceased.

163–172, 199–212. However, instances of acquiring land through purchase or in execution of debt
were not seldom; cf. P. Oxy. LXIII 4397 (545); P. Lond. V 1686 (565); P. Mon. Apollo 24 (8th cent.).
122
See P. Cair. Masp. II 67151, ll. 57–62; 74–101. These passages belong to the standard testa-
mentary clauses regarding the institution of an heir and disinheritance, see Nowak, Wills
(cit. n. 18), pp. 129–146; 153–159.
123
Tr. after Nowak, Wills (cit. n. 18), p. 410.
 BETWEEN HEAVEN AND EARTH 159

Also in documentary practice there are traces of the parties trying to

protect themselves from a possible conflict that had not yet come to pass.
Security clauses in many of the surviving documents are not only rhetorical;
they constitute a response to the real contestations encountered in practice.
It seems, moreover, that these clauses developed gradually and in parallel to
the tendency to keep such documents safe in the archives in case of a dis-
pute.124 Some of the late donation documents coming from Jeme contain
a clause stating that whoever takes action to have the deed annulled will be
subject to a pre-established penalty.125 One should note, however, that some
papyri also demonstrate that monks tried to avoid conflict with donor’s
family, and acknowledged the return of the prosphora.126
A direct attestation of a dispute is recorded in P. Cair. Masp. I 67003 (567) –
a petition of the monks of the monastery of Pharaous to Flavius Theodoros,
dux et Augustalis of the Thebaid. The text concerns a dispute that arose in
response to the pious donation of land by an anonymous widow after the death
of her children. The validity of this deed was questioned by a certain Iezekiel.

P. Cair. Masp. I 67003, ll. 15–17: διδάσκωµεν οὖν τὸ φιλάνπρωπον ὕψος ὑµῶν
ὡς ὀλίγας ἀρούρας, ἕως ἓξ καὶ µόνων, σπορίµης γῆς, συννηµµένας τοῖς ἡµε-
τέροις γῃδίοις ἤτοι το(ῦ) ἁγίο(υ) τόπο(υ) τῆς διακονίας, ἐδωρήσατο ἡµῶν κατʼ
ἔγγραφον δωρεὰν µία τις γυνὴ χήρα.
For we inform your benevolent highness that a small number of arourae, no
more than six and only, adjacent to our parcels, that is (those of) the holy
topos of the diakonia, were donated to us through a written deed of donation
by a widowed woman.127
124
For the explicit passages, see e.g. P. KRU 96, ll. 64–70; P. KRU 100, ll. 50–53. More on that,
Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), p. 81.
125
Cf. Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), p. 92. The relevant question
would be whether these penalties were effective and could be executed. An attempt to enforce
them in practice likely carried with it problems both concerning the solvency, as well as those
connected to the effectiveness of the state administration of justice and the eventual difficulties
with the law enforcement. On challenges of the administration of justice in late antiquity, see
B. Palme, ‘Law and courts in late antique Egypt’ [in:] B. Sirks (ed.) Aspects of Law in Late Antiq-
uity. Dedicated to A. M. Honoré on the Occasion of the Sixtieth Year of His Teaching in Oxford,
Oxford 2008, pp. 55–76, at pp. 71–72.
126
Cf. e.g. P. CLT 1 and P. CLT 2.
127
Tr. Wegner, Monastic Communities (cit. n. 98).
160 MARZENA WOJTCZAK

As discussed above, restrictions on donations and testamentary bequests

made by widowed women were revoked much earlier. However, the back-
ground of this conflict appears to be entirely different. The monks claim that
Iezekiel was unrelated to the donor and her family.128 The grounds for pro-
ceeding with a claim seem to result from Iezekiel’s prior arrangements with
previous owners of the land which granted him the title to the land (perhaps
in connection to a loan secured with a mortgage). Naturally, our document
shows the perspective of only one party, rendering a reconstruction of the
entire case impossible.129
Families were not the only entities who could oppose the transfer of
property to monastic communities. Traces of a controversy concerning
a donation to the monastery can be found in a late P. Ryl. Copt. 294 from
Wadi Sarga. It is a fragmentary Coptic letter written probably to the head
of the monastery of Apa Thomas, i.e. ‘the pious and esteemed Apa Amoun’,
by an unknown individual that concerns a donation of a garden (ϣⲛⲏ) to
the monastery.130 Apparently the people of the village of Tjaser questioned
the gift; the writer intervened on behalf of the monastery by sending a let-
ter and officially announcing the dorea.131 Details of the controversy are

128
P. Cair. Masp. I 67003, l. 24.
129
Ewa Wipszycka suggests, however, that the decision to approach a high-ranking official
in order to get the problem solved may indicate that Iezekiel’s claims were not as groundless
as the text would make us believe. See E. Wipszycka, ‘Le monastère d’Apa Apollôs: un cas
typique ou un cas exceptionnel?’, [in:] Fournet & Madgeleine, Les archives de Dioscore (cit.
n. 102), pp. 261–273, at p. 267.
130
P. Ryl. Copt. 294, ll. 2–3. Cf. J. Cromwell, ‘The Rylands contribution to the history of the
monastery of Apa Thomas’, Bulletin of the John Rylands Library, forthcoming.
131
‘ⳁ I have received the letter from your piety and, look, I have written to Tjaser as I had
ordered them [...] so that they will not come because of this matter. I have announced the
gift of the garden [...] give it to you, into the Rock. And believe me, that everything which
I will be able to do for you, I will not conceal from you. Farewell in the Lord. ⳁ [ⳁ Give] it to
the pious and esteemed Apa Amoun, Father of the Rock of Apa Thoma[s ⳁ].’ Tr. after Crom-
well, ‘The Rylands contribution’ (cit. n. 130). The sender of the letter does not include his
name in the address on the verso. Jennifer Cromwell is, however, doubtful whether the
author of the letter could be identified as a monk. As she duly points out, the writer appears
to be a senior figure. This could be further supported by the fact that he is in a position of
power enabling him to impose a decision concerning the property rights of the garden onto
the village community. This could perhaps point to some sort of administrative functions.
 BETWEEN HEAVEN AND EARTH 161

unfortunately too obscure to allow any authoritative statements as to the

nature of the donation (i.e. whether it was inter vivos or a testamentary
bequest).
It seems that the disputes over landed property could also be reflected in
some of the entries of the Aphrodito cadastre. SB XX 14669 lists a number
of individuals and entities (including monasteries) whose land was assigned
to somebody else after a revision of the ownership titles carried out during
a land survey.132 More specifically, in the majority of cases where we observe
expropriation of the monastery of Apa Sourous, the land parcel was co-
owned by the monastery along with other individuals. Such situations of co-
ownership could be a result of testamentary dispositions through which the
testator divided his or her property between the family members and the
monastery.133 It is reasonable to assume that in those cases when the expro-
priation was carried out against the individuals referred to as ‘heirs’, the
cadastral adjustment was probably a consequence of a revision of earlier
donations and testamentary bequests. In this light it is clear that the
landowning patterns in which monastic communities were engaged were
complex and dynamic. Monasteries were not given any immunity against
property claims, and such disputes occurred both between monasteries and

Wegner, Monastic Communities (cit. n. 98), suggests that it is also possible that the author
was the donor himself, or (at least) a person connected to the donor (e.g. his descendant).
Although this is possible, it is far from certain. The document seems to indicate that the rural
community was in charge of some part of the land. A legal perspective makes this observa-
tion all the more interesting (meaning the recurring problem of the existence of the legal per-
sons as such in late antiquity). This also begs the question whether this document is a prod-
uct of a region-specific or period-specific phenomenon, or a situation more common and
perhaps earlier than the Arab conquest (this would be missing in the earlier papyrological
evidence). What also requires noting is the engagement of other entities in the dispute on the
side of the monasteries. This may prove the position of the monastery in the local commu-
nity and show how the monastery was embedded in the local landscape.
132
See Gascou, ‘Le cadastre’ (cit. n. 94), pp. 247–305. Observations on that matter also made
by Wegner, Monastic Communities (cit. n. 98).
133
This, however, can serve only as one of the plausible reasons behind the patterns of co-
ownership as observed in the entries. See Gascou, ‘Le cadastre’ (cit. n. 94), p. 255. In the
papyri we come across the examples of co-ownership regarding movables as well as work-
shops, which also could be an effect of earlier testamentary dispositions, cf. e.g. P. Cair. Masp.
I 67110; P. KRU 13 and P. KRU 12.
162 MARZENA WOJTCZAK

individuals as well as between monasteries and other religious institu-

tions.134
If the interpretation that I have presented is correct, then we may also see
the frequent practice – discussed on several occasions by Ewa Wipszycka –
of giving land belonging to religious institutions in emphyteusis as a strategy
for avoiding, or a least limiting, conflict.135 Such a guarantee would certainly

134
Cf. e.g. SB XX 14669 col. v, ll. 144–145 (where the monastery of Shenoute is said to regis-
ter four arourae of arable land acquired through expropriation of the xenon of Apa Dios).
When conflicts occurred, it was sometimes inevitable for the monasteries to admit their
defeat and withdraw from disputed land. We come across attestations showing that religious
institutions of recognisable social position turned to high-ranking officials or esteemed indi-
viduals that could settle their case. Naturally, monks and monasteries did their best to assure
a positive outcome of the confrontation. Still, the negative outcome was sometimes unavoid-
able. The cases of expropriation may indicate that the position of a religious institution was
not enough to guarantee immunity. In the same vein, see Wegner, Monastic Communities
(cit. n. 98). However, a nice example for the efficient use of the social capital by the monas-
teries is a case outlined in P. Oxy. LXIII 4397. The text tells us of the monastery of Apa Hierax
engaged in a financial business. The story ends with a settlement of claims, with the
monastery gaining the upper hand. What makes this case particularly interesting is the fact
that monastery manages to press their case against all legal odds, relying in the final phase
mostly on its social influence. See Urbanik, ‘P. Oxy. LXIII 4397’ (cit. n. 13).
135
Ewa Wipszycka gives two possible explanations for the recurrence of emphyteusis in case
of the land belonging to religious institutions: either (i) the testaments with the land bequests
must have included provisions enabling the family in some way to remain on the land, or (ii)
the emphyteutic lease was the only way to attract tenants to the land given to Church enti-
ties. See Wipszycka, Les ressources (cit. n. 80), pp. 35–37. Papaconstantinou opposes the first
hypothesis stating that: ‘If the second of these hypotheses in indeed plausible, there is noth-
ing in surviving documents, admittedly few in number, to substantiate the first one’; see
Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), p. 77. However, Jakub Urbanik
has persuasively shown that emphyteusis was used by the ecclesiastical institutions as a con-
venient mechanism of land management and a way of by-passing the prohibitions on alien-
ation of ecclesiastical property (approximately eighty per cent of documentary attestations
dealing with emphyteusis regard the ecclesiastical persons; J. Urbanik, ‘“It is easier for
a camel…” Emphyteusis and the economy of Heaven and Earth’, a paper given during the
27th International Congress of Papyrology, Warsaw 2013). Moreover, Wegner suggests in her
doctoral dissertation that monasteries tended to maintain contacts with local residents of the
donated land (tenants of the previous owners, or donors’ descendants), both through lease
agreements and emphyteusis (even despite the lack of direct provisions in the testaments);
see Monastic Communities (cit. n. 98). In regard to that – contra Papaconstantinou – I think
we should look for direct attestation of such practice not so much in the testaments but
rather in the provisions of emphyteutic leases and the wider context of their conclusion (both
 BETWEEN HEAVEN AND EARTH 163

make it easier for family members to give up the land in question. The man-
agement of land parcels, in particular the ones scattered between various
locations, would require from the monastic communities significant input of
labour and other measures.136 Therefore, the most efficient and easiest solu-
tion could be relying by the monasteries on the pre-existent relations and
renewing lease contracts with tenants of the previous owners, or leasing the
land to the donors’ descendants. In addition, with regard to the numerous
emphyteutic lease agreements drawn by the monasteries as land owners, one
could argue for the simultaneous use of such solution as a strategy in favour
of monastic communities acting as tenants (when, e.g., the land could not be
transferred to their benefit due to the introduced legal limitations).137 Consid-
ering the effectiveness of imperial legislation, it is also important to note that
in the entries of the cadastre SB XX 14669, we often find the representatives
of Aphrodito’s elite as the lay co-owners of the monastic land. This may not
seem surprising at first, since people acting as donors in the papyri cover
a broad social scope, as discussed above. In the cadastre, however, we find
direct confirmation that some of these people were members of the curial
class, as for instance Panolbios curialis, a prominent Antaiopolite figure
known from other papyri.138 We cannot be sure whether the land referred to
in the document was subject to the statutory exclusion of alienation, how the
process of its acquisition looked, or what the reason for the co-ownership

social and economic). See also: T. S. Richter, ‘The cultivation of monastic estates in late
antique and early Islamic Egypt: Some evidence from Coptic land leases and related docu-
ments’, [in:] Boud’hors et al., Monastic Estates (cit. n. 13), pp. 205–215; MacCoull, ‘Monastic
and church landholding’ (cit. n. 94).
136
For the examples of emphyteutic leases, see e.g. P. Lond. II 483; P. Dub. 33; P. Cair. Masp. III
67299. It is worth of note that monastic communities had also control over holdings that were
not so much dispersed between various locations, but rather formed a busy patchwork of arable
land, which the monks could not or would not work on their own for different reasons (also
religious, depending on given community). However, in our corpus we also come across papyri
attesting the practice of leasing land by monasteries to their monks, as well as examples of
monks and clergymen privately involved in leases, cf. Richter, ‘The cultivation’ (cit. n. 135).
137
Most of all, cf. limitations regarding the alienation of curial land burdened with munera
(discussed above).
138
See e.g. P. Flor. III 281; P. Cair. Masp. I 67113; P. Lond. V 1689. Cf. R. P. Salomons, ‘Testa-
mentaria’, ZPE 156 (2006), pp. 217–241.
164 MARZENA WOJTCZAK

was. Papyri fail to offer any direct proof that the limitations imposed on the
dispositions of curial land were in fact enforced. It is, however, also impossi-
ble to conclude that these laws were never put into practice.139 Wipszycka
considers the possibility of a certain modus vivendi: it might have been pos-
sible for the representatives of the curial class to make pious donations or to
enter a monastery as long as the greater part of their property was left to the
family members who could assume the responsibility for munera.140 It is true
that imperial laws indirectly equipped the municipal curiae with instruments
of pressure against decurions that attempted to avoid public duties and
undertake monastic life.141 Whether curiae used those tools remain an open
question. When verifying Wipszycka’s hypothesis one also has to keep in
mind the laws – and their potential (non-)effectiveness – which limited the
possibility to leave the curial class through alienation of land or transfer of
the duties onto other people.142

5. Tensions between family ownership

and rights of monastic communities in the Codex Theodosianus?
Toward a conclusion

It may appear a paradox that the legal restrictions with regard to the alien-
ation of property for pious reasons and the possibility of ‘renouncing the

139
See Laniado, ‘Early Byzantine state’ (cit. n. 8), pp. 31–35.
140
See Wipszycka, ‘Resources’ (cit. n. 6), p. 165.
141
See e.g. CTh 12.1.49; 12.1.59; 12.1.63; 12.1.104; 12.1.115; 12.1.121; 12.1.123; 12.1.163; 12.1.172.
In similar vein: CTh 8.4.7 and CJ 1.3.4.
142
See e.g. CTh 12.3.1 (=CJ 10.34.1); CJ 10.34.2; Nov. Val. 32.5; Nov. Maj. 7.9; CJ 10.34.3; for the
decurions entering the ranks of the clergy, see e.g. CJ 1.3.12 in relation to CTh 12.1.121; CJ
1.3.52. During Justinian’s reign leaving the curial class became a personal privilege granted
by the emperor, see CJ 10.32.67. We do not know how the execution of these laws was carried
out, but the rising number of constitutions and their restrictiveness could suggest that the
problem was (still) existing, and that the earlier provisions were infringed. For more on these
laws, see e.g. W. Schubert, ‘Die rechtliche Sonderstellung der Dekurionen (Kurialen) in der
Kaisergesetzgebung des 4.–6. Jahrhunderts’, Zeitschrift der Savigny-Stiftung für Rechtsgeschich-
te. Romanistische Abteilung 86 (1969), pp. 287–333.
 BETWEEN HEAVEN AND EARTH 165

world’ were introduced during the reign of ‘Christian emperors’. However,

in the light of the analysis above it seems that provisions of the Theodosian
Code concerning the economic rights of Church institutions tended in
a direction that is not as surprising as one could expect. In numerous mat-
ters the imperial legislation is favourable to Christianity even when the fun-
damental tenets of this religion were not always followed by the secular
authorities. In certain situations the emperors aimed at finding ad hoc reme-
dies and solutions for crises, conflicts, and particular problems of legal prac-
tice. In the case of provisions concerning widows, female wards, and dea-
conesses, constitutions could be a reaction to clearly deviant cases of the
extortion of testamentary bequests by ecclesiastics. Moreover, limitations
introduced during the reign of Theodosius I seem to fit with the general
political context that included his conflict with Ambrose. As concerns the
restrictions regarding the alienation of curial land, here of importance is
guaranteeing the administrative and financial interest of the state, which
not only does not deteriorate with the rising power of the Church, but
becomes even stronger in times of Justinian.143
Such controversial dispositions must have been sufficiently common in
order to justify the new laws. Unfortunately, the character of the available
documentation of legal practice – its frequent scarcity and opacity – makes
it difficult to assess the precise impact of the imperial restrictions concern-
ing the transfer of curial property to monasteries.144 A similar situation is
particularly visible in case of the papyri that post-date the abrogation of
part of the restrictions on donations made by widows or young women.145

143
See n. 71.
144
The papyri which refer to material assistance provided by aristocratic landowners to
monasteries record most of all gifts of commodities. We do not come across any records of
landed endowments to the benefit of monastic communities in the Apion archive or the
dossier of Ammonios. As noted by Joanna Wegner, this phenomenon could be an Egyptian
particularity, since on other territories the landowners presented monasteries with land, and
the great monastic properties derived mostly from this type of donations. See Wegner, Monas-
tic Communities (cit. n. 98).
145
See CTh 16.2.20; 16.2.27–28 and Nov. Marc. 5. We cannot exactly tell how the said legisla-
tion was effective in practice, yet as later laws indicate (at times explicite), the controversies
regarding the validity of such bequests (cf. Nov. Marc. 5; CJ 1.2.13) existed for a long time.
This, of course, begs the question whether the claims raised in legal practice should be linked
166 MARZENA WOJTCZAK

These sources clearly show that donations of both immovable and mov-
able property were one of the principal means through which monasteries
accumulated land and acquired revenue sources. Acquisition of land by the
monastic communities was likely a long-term process, and what we know
from the sixth-century sources must have had its origins years before the
above outlined documents were drafted.
Individuals must have felt the actual pressure to make donations to
monasteries and churches. Hagiographical and biblical accounts of ‘rich sin-
ners’ and ‘pious donors’ formed a very persuasive and easily internalized
discourse, which was probably known among even average Christians.146 It
is not hard to imagine that imperial legislation could partially be the answer
to the most radical pressure exerted on widows and young women.
In this light, the alleged paradoxical nature of the solutions adopted by
the Christian emperors and found in the Theodosian Code appears to be
false. The ascetic discourse could indeed display ‘antifamilial tendencies’,
but it must be remembered that in many cases the activities it entailed could
well have been in accordance with the structures and principles of Roman
law.147 The limitations concerning the donations made to the monasteries
and Church institutions are in fact quite meagre. Hence the priority given

to the knowledge of the former restrictive laws, or are they rather an example of a typical
family reaction to being omitted in the testamentary dispositions (or both).
146
See Papaconstantinou, ‘Donation and negotiation’ (cit. n. 80), p. 89. It was even suggested
that the Church should be considered by the faithful in a similar manner as their children when
it comes to the testamentary dispositions; see E. A. Meyer, Literacy, Literate Practice, and the
Law in the Roman Empire, ad 100–600, PhD dissertation, Yale University 1988, p. 193.
147
It does not come as a surprise that Roman law allowed inheritances to pass outside the
family and designed an array of instruments that enabled testators to pursue a variety of
goals through their last-will dispositions. The late antique practice of pious donations func-
tioned in a pre-existing and well embedded legal framework, which was used effectively both
by donors as well as beneficiaries. The reign of Justinian brings – as already noted – further
concession with regard to acquiring pious gifts by the ecclesiastical institutions. Also then,
however, the adopted policy is hardly one-dimensional (see n. 84). For examples of late
antique testaments and their relation to the Roman provisions, see e.g. M. Nowak & E. Garel,
‘Monastic wills: The continuation of late Roman legal tradition?’, [in:] M. Choat & M. Gior-
da (eds.), Writing and Communication in Early Egyptian Monasticism [= TSEC 9], Leiden –
Boston 2017, pp. 108–128. Cf. Clark, ‘Antifamilial tendencies’ (cit. n. 41) and Harries, ‘“Trea-
sure in Heaven”’ (cit. n. 41)
 BETWEEN HEAVEN AND EARTH 167

to the claims of the family in general seems to reach only slightly beyond
the protection already guaranteed by the Roman inheritance law. Thus, the
tension between the family’s ownership and rights of the monastic commu-
nities and Church institutions – as argued by Barone-Adesi – appears to be
similar to those between the family’s ownership and the rights of any extra-
neous heir or beneficiary of a donation made contrary to the interests of the
family. In this aspect, imperial constitutions demonstrate a careful and far
from trivial weighing of interests: the family’s on the one hand, and that of
the extraneous heirs, including monasteries and other Church institutions,
on the other.148 The classical Roman law created enough possibilities to
transfer large parts of the property to subjects from outside of the family.
We can, admittedly, observe – especially for the reign of Justinian – a grow-
ing conceding approach towards the pious donations (e.g. by easing the for-
mal requirements of such deeds, as well as exempting them from certain
legal charges).149 One should keep in mind, however, that already the clas-
sical guarantees for the closest relatives in terms of inheritance law con-
cerned only the possibility to recognize the will as inofficiosum if it unjustly
deprived sui heredes of the minimal compulsory portion of their inheritance
(i.e. pars legitima). This tendency appears to intensify in the post-classical
period, when the protection of the family rights becomes stronger through
careful and detailed regulation of cases in which the disinheritance (that is
the deprivation of pars legitima) could take place.150 The testator could,
however, dispose of the remaining part of the property at his or her discre-
tion. Also, the abrogation of part of the imperial restrictions concerning the
pious gifts – as outlined in Nov. Marc. 5 and later partially repeated in CJ
1.2.13 – does not seem to change the atmosphere accompanying the legal
practice of such donations present among the closest relatives. As demon-

148
See Humfress, ‘Gift-giving’ (cit. n. 13), p. 17.
149
For the laws easing the formal requirements of such deeds, see e.g. CJ 1.2.19 and 25; for
the laws exempting them from certain legal charges, see e.g. CJ 1.2.22–23; CJ 1.3.24; 28; 48. It
does not appear plausible to me that querela inofficiosi testamenti was ever denied to the ‘undu-
tifully’ overlooked relatives in cases where significant part of testator’s estate was assigned to
ecclesiastical institutions for pious reasons. In such cases I would except a verbatim state-
ment as e.g. in CJ 1.3.49. Cf. also Nov. 1 and 131, esp. chapter 12.
150
See e.g. Nov. 115.3–4.
168 MARZENA WOJTCZAK

strated by later papyrological sources, opposition on the side of the family

is not infrequent and concerns the property dispositions by both men and
women. Naturally, the claiming parties were not necessarily in their right
according to the law and could not always enjoy the perspectives to win the
trial. Thus, it seems that in case of pious donations we could be rather deal-
ing with the tension between the hagiographical discourse and mundane
reality.

Marzena Wojtczak
ORCID: 0000–0002–6796–4424
Chair of Roman Law and the Law of Antiquity
University of Warsaw
[email protected]
 BETWEEN HEAVEN AND EARTH 169

Between heaven and earth: family ownership versus rights of monastic com-
munities. The Theodosian Code and late antique legal practice

Abstract
This article investigates the relationship between the legislation introduced in the
field of proprietary rights assigned to various Church entities and the practice of
accumulation of wealth by the monastic communities in late antique Egypt. On the
one hand, among the literary sources the predominant theme concerning Egyptian
monasticism is the idea of voluntary poverty and renunciation of worldly posses-
sions aimed at the pursuance of a contemplative life. On the other hand, the papyri
offer insight into monastic life that does not seem to have been entirely detached
from the outside world. In this vein, the laws of Valentinian I and Theodosius II
clearly indicate that monks and nuns continued to own property without distur-
bance after undertaking religious life. In addition, Theodosius the Great and later
emperors restricted the freedom of certain groups of citizens to disown their prop-
erty, rendering the Christian ideal of voluntary poverty not always feasible. It is
only with Justinian that the rules regarding monastic poverty are shaped and set by
the secular power. The incentive for this study is to check for any conflict between
the principles of classical Roman law in the field of private ownership and imperial
legislation included in the Codex Theodosianus. Giorgio Barone-Adesi observed the
tension that took place between the Christian communities and their corporations
that were allotted ever broader privileges and the Roman principle of preservation
of the property within the family unit. There is, however, still some room left for
discussion since not all the data easily adds up to an unequivocal conclusion. In this
analysis, the Code is treated as a measure for taking a stand by the legislator in the
dispute between the will of the owner, recognition of the rights of the heirs and
family members, and finally the privileges granted to the religious consortia.

Keywords: monks, monasticism, Late Antiquity, Roman law, legal practice, Theodo-
sian Code, legal capacity, Church, family, proprietary rights, donations, piae causae,
voluntary poverty
170 MARZENA WOJTCZAK

Między niebem a ziemią: majątek rodzinny a prawa wspólnot monastycznych.

Kodeks Teodozjusza i praktyka prawna późnego antyku

Abstrakt
Artykuł przedstawia analizę relacji zachodzących między ustawodawstwem przyzna-
jącym prawa majątkowe różnym podmiotom kościelnym, a praktyką gromadzenia
majątków przez wspólnoty monastyczne w późnoantycznym Egipcie. Tematem prze-
wodnim źródeł literackich dotyczących egipskiego monastycyzmu jest idea dobro-
wolnego ubóstwa oraz rezygnacja ze wszelkich dóbr doczesnych w imię poświęcenia
się religijnej kontemplacji. Jednak papirusy ukazują życie monastyczne, w którym nie
brakuje kontaktów ze światem zewnętrznym. W tym kontekście konstytucje wpro-
wadzone przez Walentyniana I i Teodozjusza II jasno wskazują na fakt, że mnisi dys-
ponowali własnością prywatną nawet po podjęciu życia religijnego. Teodozjusz Wiel-
ki i późniejsi cesarze sukcesywnie ograniczali możliwość wyzbycia się przez określone
grupy poddanych należącego do nich majątku, czyniąc w ten sposób chrześcijański
ideał dobrowolnego ubóstwa nie zawsze osiągalnym. Dopiero panowanie Justyniana
przynosi świeckie regulacje dotyczące mniszego ubóstwa. Artykuł stawia sobie za cel
weryfikację tezy o potencjalnym konflikcie zachodzącym między postanowieniami
klasycznego prawa rzymskiego w zakresie dysponowania własnością prywatną oraz
ustawodawstwem cesarskim zawartym w Kodeksie Teodozjusza. Giorgio Barone-
Adesi zaobserwował napięcie występujące między rzymską zasadą zachowania ma-
jątku wewnątrz rodziny, a wspólnotą chrześcijan i ich korporacjami, którym to przy-
znawane są coraz szersze uprawienia majątkowe. Wydaje się jednak, że posiadane
dane nie zezwalają na jednoznaczną konkluzję. W niniejszej analizie Kodeks trakto-
wany jest jako manifestacja stanowiska zajętego przez prawodawcę w kwestii granic
woli właściciela, praw przysługujących spadkobiercom i członkom rodziny, a także
przywilejów przyznanym religijnym consortia.

Słowa kluczowe: mnisi, monastycyzm, późny antyk, prawo rzymskie, praktyka praw-
na, Kodeks Teodozjusza, zdolność prawna, Kościół, rodzina, prawo własności, daro-
wizny, piae causae, dobrowolne ubóstwo