The constitutions as literature

But Nou. Val. 23 is interesting not only from historical and juridical points of view. Like many unabridged laws (or ‘constitutions’) from Late Antiquity, Nou. Val. 23 is introduced by an eloquent rhetorical preamble. The introductory sections of late antique constitutions were omitted in the Theodosian and Justinianic Codes; when both the original and the abridgement are extant, the remarkable difference in length suggests that the Codes’ editors were obliged to make extensive cuts. These preambles represent important evidence for top-down communication between the emperor and his subjects and between the court and the populace, whether in the capitals or in the provinces. They narrate the events leading to the promulgation of the new law (often an individual petition) and explain the reasons behind the imperial pronouncements. Furthermore, they often convey elements of popular philosophy and theology. Accordingly, the constitutions deserve recognition both as neglected instruments of public rhetoric and political communication and as popular outputs of late antique intellectual life.Footnote ⁵ Thus, rather than discussing historical or juridical problems, this article will take Nou. Val. 23 as a case-study for literary appraisal of a late antique constitution: an intertextual discussion of a selected passage—just a few lines in length—will reveal that the drafter of this constitution has a multifaceted poetic background and an intimate acquaintance with typically late antique techniques of literary allusion. This analysis will also yield, as a by-product, a new dating argument for one of the intertexts to be discussed—namely, Pomponius’ Virgilian cento Tityrus (or uersus ad gratiam Domini).

Poets and bureaucrats in the fourth and fifth centuries

It has long been recognized that the talents of poets and rhetors could be employed in the drafting of letters and laws. Indeed, the quaestors (the magistrates in charge of writing imperial letters and new laws)Footnote ⁶ and other top-ranking bureaucrats had often acquired more experience in literature than in jurisprudence by the time they reached these positions. John Lydus, writing at a century’s distance, mocked Cyrus of Panopolis—simultaneously prefect of Constantinople and praetorian prefect, and eventually, immediately preceding his sudden fall from grace in 441, consul—for ‘knowing nothing but poetry’ (μηδὲν παρὰ τὴν ποίησιν ἐπισταμϵ́νου).Footnote ⁷ Yet it was far from infrequent that famous poets and rhetors held important administrative functions.

To name only the best-attested ones, Ausonius (quaestor from 375 to 377), despite frequently being regarded as a lukewarm Christian, employs a fascinating religious layering in some of his poems: his Cupido cruciatus may well be influenced by early Christian conceptions of martyrdom, not just in the very instrument of Cupid’s torture (a cross) but also in the image of the classical heroines exhibiting symbols of their deaths.Footnote ⁸ With his verse panegyrics, the Greek-born Claudian secured Stilicho’s patronage and became famously tribunus et notarius—and he was just one Latin offshoot of a whole Greek school of ‘wandering poets’ who climbed the ladder of imperial administration with their excellence in verse composition.Footnote ⁹ But the best-attested poet-bureaucrat of the fifth century is Sidonius Apollinaris: his three verse panegyrics for Avitus, Majorian and Anthemius (Carm. 7, 5 and 2, respectively) won him administrative appointments—culminating in the prefecture of Rome in 468–9—and his literary network secured him pardon in times of trouble, such as after the Gallic rebellion against Majorian in 458 (Epist. 1.11.15).

To sum up, there was a close link between letters and government. Yet administrative prose is seldom read with attention to its literary qualities. Indeed, A.H.M. Jones, commenting on the fact that poets were sometimes chosen for governmental and bureaucratic roles, seemed to disregard their ability to contribute to the legislative process altogether,Footnote ¹⁰ and there have thus far been only timid attempts at establishing a link between poetry and legislation.Footnote ¹¹ In fact, the unabridged constitutions are prime examples of art prose in public action: a deeper appreciation of their intertextual relations with poetry has much to contribute to our understanding of their political communication.Footnote ¹²

The law’s preamble and the immortality of THE soul

The preamble of the law of Valentinian III against tomb violators displays a ‘pocket-sized’ argument for the immortality of the soul. The idea that we possess an innate notion that the human soul is immortal is a tenet of both ancient wisdom and the Christian faith, and is also indicated by the very fact that human beings put money and effort into erecting sepulchral monuments—an argument once made by Prudentius in Cath. 10.45–64.Footnote ¹³ It is on this preamble (Nou. Val. 23.0) that this article will focus: this brief text displays a subtle and multilayered web of intertextual references which in turn reveal a surprising literary awareness in this apparently dry legal admonition.

Artistic pathos marks this passage, such as in the anaphora hoc … hoc, with the chiasmus of ablative nouns and their related genitives libris ueteris sapientiae/religionis … arcanis. Every concept is expanded and solemnly duplicated. Thus, the souls of the dead not only feel some lingering affection for the resting place of their bodies, but they also ‘rejoice in the honour of their sepulchre’ (sepulchri honore laetantur)—an idea already discussed by Augustine in his De cura pro mortuis gerenda (7.9).

The ‘excessive expense … to the detriment of one’s wealth’ (sumptu nimio, censu laborante: perhaps a faint memory of the old Roman distrust of sumptuary extravagance?) invested in the construction of funerary monuments is also expressed in a vivid image: the precious metals, which are mined from mountains, contribute to erecting ‘elaborate constructions’ (operosasque moles, forming a chiasm with the noun–participial adjective pair censu laborante). These few lines exemplify the late Roman genus grande.Footnote ¹⁵

Prose rhythm

New constitutions were read publicly in crowded civic gatherings: some sources emphasize the eager expectation and loud reactions of the populace as it listened to the imperial pronouncements.Footnote ¹⁶ As works of highbrow rhetoric intended for public delivery, the constitutions follow the rules of prose rhythm. Recognizable rhythmic patterns (clausulae) mark the ending of each clause, thus providing a structure to the flow of rhetorical speech and serving as a form of punctuation. The predominant rhythmic form of late antique cultivated prose is commonly referred to as cursus mixtus because it combines two overlapping systems of clausulae. The first, which derived from the Classical period and persisted in rhetorical teaching, is based purely on prosody: among the most frequent prosodical clausulae there are the following: cretic–trochee (–⏑– –×), cretic–ditrochee (–⏑– –⏑–×), double cretic (–⏑– –⏑×), cretic–tribrach (–⏑– ⏑⏑×) and first paeon–trochee (–⏑⏑⏑ –×). The second system of clausulae is based on patterns of stressed syllables: later in the Middle Ages, it would be formalized as cursus. The three most common rhythmical clausulae are the cursus planus (ó∼∼ó∼), cursus tardus (ó∼∼ó∼∼) and cursus uelox (ó∼∼∼∼ó∼), while the cursus trispondaicus (ó∼∼∼ó∼) usually features less frequently.Footnote ¹⁷ The old and the new coexist, and attention should be paid to both stress patterns and the distribution of quantities.

Francesco Di Capua has provided an excellent rhythmical analysis of this constitution, to which I refer the reader for a comprehensive overview.Footnote ¹⁸ To his discussion, I would add that, even though clausulae are most conspicuous at the end of clauses, they also occur at the beginning or in the middle of sentences. Thus, the passage under observation starts with the solemn poeticism fī́nīs mălṓrūm (planus/spondee–bacchee).Footnote ¹⁹ Amongst the mid-sentence clausulae, ratiṓnĭs ōccū́ltāe constitutes a planus/cretic–spondee, as does pḗrmănēt cū́nctīs. In short, prose rhythm pervades this constitution and is an essential feature of its rhetorical quality.

An epic modulation

This system of clausulae dictates that phrases should end with two or four (or, rarely, three) unstressed syllables falling between the final two stressed syllables. Yet there is one sentence that does not scan according to these rules. The phrase scīmŭs ĕnīm nēc uānă fĭdēs looks like the beginning of a hexameter, with caesura of the second and the fourth feet (–⏑⏑ –|– –⏑⏑ –|). To borrow a term from musical theory, an extra-metric grouping coming from poetry infiltrates the rhythm of prose. This sudden appearance of epic rhythm recalls the stylistic habit of some writers, especially historians, of inserting quasi-hexametrical or fully hexametrical phrases in key passages, such as incipits or when an epic colouring suits some characterizations.Footnote ²⁰ In some instances, hexameter-like rhythms underpin allusions to epic poetry.Footnote ²¹ Is this also the case with this phrase?

Nec vana fides: from Virgil …

While a search for the hexameter opening scimus enim yields no significant results (besides confirming once again that this constitution is deeply imbued with epicizing language),Footnote ²² the phrase nec uana fides has a fascinating history, starting with Virgil. The whole preamble of Nou. Val. 23 is pervaded by Virgilian echoes. After all, Virgil was a cornerstone in the education of the learned elite from which late antique bureaucrats were recruited. Since Virgil was often learned by heart, it comes as no surprise that Virgilian phrases resurface ubiquitously in late antique prose and poetry. Finally, Virgil was regarded as an authority in many disciplines, not least in law.

Brunella Moroni has provided a learned and persuasive assessment of the engagement of the Theodosian legislators with Virgil, and includes Nou. Val. 23 in her study.Footnote ²³ As Moroni notes, the phrase nec uana fides features in Dido’s speech as she confesses her infatuation for Aeneas (Aen. 4.12 credo equidem, nec uana fides, genus esse deorum ‘I believe it well—nor is my faith vain—that he is of the race of the gods’).Footnote ²⁴ By the end of the first century, this Virgilian tag had been echoed by poets such as Statius (Theb. 11.215) and Valerius Flaccus (5.75). Yet, in our constitution, it is difficult to detect further layers of meaning in this Virgilian tag: is it therefore a learned yet merely verbal echo?Footnote ²⁵ Dissatisfied with this conclusion, I hope to look beyond Virgil and discuss further intertexts.

… to Prudentius

The third hymn (ante cibum) of Prudentius’ Cathemerinon (composed before 404–5) affords a crucial parallel. The hymn culminates in an exposition of the immortality of the soul and of the bodily resurrection (Cath. 3.191–205):

While by no means the only Virgilian allusion in the passage, line 196 stands out because it quotes Aen. 4.12 almost verbatim, to the point of qualifying as a quasi-quotation (which Aaron Pelttari defines as ‘apposed allusion’).Footnote ²⁷ At the same time, as noted by Maria Becker and Gerard O’Daly, Prudentius uses the Virgilian tag nec uana fides as a vehicle to express Paul’s admonishments in the First Letter to the Corinthians about Christ’s resurrection as a guarantee of the universal resurrection (Vulg. 1 Cor. 15:13–14, 16–17):Footnote ²⁸

Prudentius’ point is precisely that Christ’s victory over death gives faith both in the immortality of the soul and in the resurrection of the flesh on the last day. In other words, Prudentius takes Virgil’s phrase nec uana fides out of its original context and uses it to give new voice to Paul’s teaching about the resurrection, thereby making a doctrinal point about the nature of the human soul. In addition, Virgil’s phrase genus esse deorum (referring originally to Aeneas’ divine lineage) might have contributed to this allusion, which redeploys Virgilian language to signify that the human soul is of divine origin. Richard Thomas has called this mode of intertextuality ‘window reference’: an intertext (in this case, Verg. Aen. 4.12) acts as intermediary to a third intertext that bestows the ultimate meaning (Paul in 1 Cor. 15:13–17).Footnote ³⁰ This technique of literary allusion well befits Christian poetry, which redeploys memorable phrases of classical poets to express concepts rooted in Scripture, thus bridging the gap between two cultures that initially might have seemed antithetical. Reinhart Herzog defined it as ‘secondary imitation of the classics’ (sekundäre Klassikerimitation) and applied this reading to prose authors such as Minucius Felix and Lactantius.Footnote ³¹ This same principle may hold true of Nou. Val. 23.

In the preamble of Nou. Val. 23, the Virgilian tag nec uana fides features in a context that is much closer to Prudentius than to Virgil. As in Nou. Val. 23, Prudentius’ focus is on the contrast between care for the bodies of the dead and the immortality of human souls which will eventually be resurrected with their corporeal vessels. Far from being a mere verbal echo, Virgil’s nec uana fides encapsulates faith in a key eschatological notion which is shared by both Prudentius (incidentally, a former high-ranking bureaucrat himself: praef. 16–21)Footnote ³² and the legislator of Nou. Val. 23.

Excursus: the Christian cento TityrVs or VersVs ad gratiam Domini AND ITS DATE

Prudentius was not the only poet to use Virgil’s nec uana fides in a Christian context: it also occurs in a Virgilian cento, usually called uersus ad gratiam Domini (Anth. Lat. 719a Riese), which is the title it bears in its only known manuscript (BAV, Pal. lat. 1753, fols. 69r–70v). However, Isidore (Etym. 1.39.25–6) calls it Tityrus (after one of the protagonists), in addition to informing us that it was composed by a certain Pomponius. I will therefore refer to the poem henceforth as Tityrus, as this appears to be its ancient title. The name immediately recalls Virgil’s first eclogue. Indeed, the cento stages a dialogue between two shepherds called Tityrus and Meliboeus, in which the former instructs the latter on Christian dogma and salvation history. Thus, Tityrus combines a bucolic setting with a didactic stance.

In the first half of the poem (lines 32–53), Tityrus explains that the human soul is of divine origin, immortal and destined to rejoin its body at the end of time (Tityrus 51–4):

Virgil’s phrase credo equidem, nec uana fides gives voice to Meliboeus’ enthusiastic answer as he embraces his new Christian faith. It is striking that, as in Prudentius’ Cathemerinon 3, the Virgilian line occurs in an eschatological context. Indeed, it is plausible that, like Prudentius, the author of Tityrus uses the Virgilian phrase nec uana fides to express Paul’s notion of universal resurrection in 1 Cor. 15:13–17. Thus, both Prudentius and the Tityrus cento as well as Nou. Val. 23 redeploy Virgil’s nec uana fides when discussing the ultimate fate of souls.

This coincidence—thus far unnoticed, yet too striking to be accidentalFootnote ³⁴ —raises the tangential question of the chronological relation between the cento Tityrus and Prudentius. The cento is commonly dated to the period between the middle and the end of the fourth century. Isidore provides the terminus ante quem by supplying the only biographical testimony available to us about the author of Tityrus, whereas Proba’s cento may give a plausible terminus post quem, considering that Tityrus seems to follow Proba in its arrangement of Virgilian material.Footnote ³⁵ Accordingly, the composition of Tityrus must fall at least after the 360s (according to the traditional dating of Proba),Footnote ³⁶ or possibly after 387.Footnote ³⁷ In addition, Endelechius’ Christian bucolic De mortibus boum (late fourth/beginning of fifth century) also combines the bucolic genre with didactic content, although the chronological relation between the two works might warrant a separate study.Footnote ³⁸ Regardless of the engagement of Tityrus with Proba and Endelechius, a discussion of the intertextual relation between Tityrus and Prudentius’ Cathemerinon 3 may yield interesting consequences for the cento’s dating.

Since Prudentius’ Cathemerinon dates from before 405, there are two possibilities: either Tityrus shortly predates Cathemerinon 3, or else Cathemerinon 3 came first and influenced the Virgilian intertextuality of Tityrus. While not a fixed principle, between an obscure centonist and an influential poet such as Prudentius, it is usually more likely that the former read the latter than the other way around. Moreover, further parallels show that nec uana fides (Cath. 3.196 ∼ Tit. 54 = Aen. 4.12) is not the only line of Virgil that becomes more meaningful when compared to Prudentius.

See, for example, Tit. 38 igneus est ollis uigor (‘They have a fiery force’ = Aen. 6.730)Footnote ³⁹ ∼ Cath. 3.186 uigor igneolus. Both Tityrus and Prudentius use Virgil’s phrase to indicate the divine origin of the human soul: but, while Virgil echoed the Stoic conception that the human soul is a fragment of the cosmic logos, made of fire, Prudentius suggests that the human soul is created by God, who is often conceptualized as light and fire (cf., for instance, Prudent. Apoth. 72–5).Footnote ⁴⁰ Unless, by sheer coincidence, Tityrus happens to use the same Virgilian line with the same meaning in a similar context to Prudentius, its author is probably influenced by Prudentius.

Compare, also, Tit. 43 sed reuocare gradum superasque euadere ad auras (‘to turn back your course and emerge to the airs above’ = Aen. 6.128)Footnote ⁴¹ with Cath. 3.199–200 gradu facili | ad superos remeasse Deum ‘with easy step God returned to the world above’.Footnote ⁴² Virgil’s line comes from the voice of the Sibyl warning Aeneas that visiting the Underworld is easy, but coming back will take toil and courage. By contrast, Prudentius emphasizes Christ’s resurrection as an easy (facili) return to heaven. This, says Prudentius, will be the eventual fate of the souls that will resurrect with their human bodies (Cath. 3.201–5). This is the same idea expressed by the author of Tityrus, who redeploys the same line of Virgil while expounding the bodily resurrection in the end-time (cf., shortly below, lines 47–8 iterumque ad tarda reuerti | corpora ‘and come back to their sluggish bodies’ = Aen. 6.720–1Footnote ⁴³ ). Again, the Virgilian intertextuality of Tityrus is illumined by Prudentius’ use of Virgil.

To sum up, Prudentius’ technique of juxtaposing Virgilian allusions in the concluding stanzas of Cathemerinon 3 comes close to a cento, as verbal echoes and phrases are taken out of their original context and are reinterpreted in a Christian sense.Footnote ⁴⁴ Prudentius’ influence on Tityrus can be seen not only in the redeployment of phrases referring to the nature of the soul or to Aeneas’ visit to the Underworld but also in the key phrase nec uana fides, which in both Virgil and Prudentius encapsulates the faith in the doctrine of universal resurrection. Perhaps the phrase prudentia maior (line 54 = Verg. G. 1.416) may even hint at Prudentius’ role as intertextual referent, by means of a metapoetic pun.Footnote ⁴⁵ Thus far, only Wolfgang Schmid has dated Tityrus to the beginning of the fifth century, arguing that the strong presence of didactic elements suggests a somewhat later development in comparison to both Endelechius and Proba.Footnote ⁴⁶ The above intertextual arguments support the thesis that Tityrus was written after 405, as its author appears to select his Virgilian material following Prudentius’ lead.

On the other hand, some doctrinal peculiarities of Tityrus militate against dating it much later than the first quarter of the fifth century. Let us consider lines 49–50 has omnis, ubi mille rotam uoluere per annos | tempora dinumerans Deus euocat agmine magno ‘God, counting up the times, summons all these [viz. souls] in a great multitude after they have turned their cycle for a thousand years’ (conflating Verg. Aen. 6.749–50 and 6.691). The reference to a thousand years before the end-time shows that the author of Tityrus was a millenarianist, who believed (on the basis of a literal reading of Rev. 20:1–5) that the resurrected souls of the blessed would enjoy a thousand-year-long reign of material prosperity before the end-time. Millenarianism enjoyed some following in the third and fourth centuries. Victorinus of Poetovio’s commentary on Revelation was overtly millenarian, and hints of millenarianism emerge in authors such as Commodian (Instr. 1.44.6–13), Lactantius (Diu. inst. 7.22.8) and Julius Hilarianus (Curs. temp. 18.14 Conduché = 172.24 Flick). Among the last millenarianists, in the first decade of the fifth century, was Sulpicius Severus (Dial. 2.14.1–4), whose views were ridiculed by Jerome (In Ezech. 11.36). From the early fifth century onwards, the Church increasingly tended towards a spiritualizing exegesis of Revelation.Footnote ⁴⁷ Therefore, Tityrus must date to the period between Prudentius (who proves to be a meaningful intertext) and the first quarter of the fifth century, after which millenarianist views lost currency.

Poetic allusions and cultural Authority

The phrase nec uana fides is not the sole poeticism in the preamble to Nou. Val. 23. In addition to the Virgilian echoes detected by Moroni,Footnote ⁴⁸ the phrase finis malorum also finds parallels in poetry. For instance, Lucretius uses similar expressions (3.1020–1 terminus … malorum, poenarum … finis) to refer to the mythical punishments of the damned in the Underworld (which he treats as an allegory of the fears and griefs tormenting those who are not enlightened by Epicureanism). The philosophizing Disticha Catonis reassure their reader against the fear of death, which, ‘although it is no boon, is however an end to evils’ (22.2 quae bona si non est, finis tamen illa malorum est). Prudentius’ martyrs welcome death as the end to their earthly sufferings (Perist. 5.527, 10.1097). In all the above instances, finis malorum connotes death as a release from worldly suffering—which the drafter of Nou. Val. 23 laments is denied to the deceased.

Another marked poetic echo is found in the expression mens diuina, which appears in Virgil’s Georgics with reference to the pantheistic idea that bees participate in the cosmic soul that animates the world (Verg. G. 4.219–21, 4.225–7):

The drafter of Nou. Val. 23 employs similar imagery when expressing the principle that souls are immortal (cf. Verg. G. 4.225 huc reddi ∼ in originem suam spiritum redire coelestem; Verg. G. 4.225 resoluta ∼ solutas membris animas). In other words, he re-evokes the ancient notion that all living beings have a divine spark that will eventually return to its origin: the phrase mens diuina encapsulates faith in the divine origin of human souls. Perhaps, as suggested by Moroni, his use of Virgil is influenced by commentaries: Servius establishes a link between this passage from the Georgics and Anchises’ speech in Aen. 6.724–56 on the post-mortem fate of souls, whereas the Scholia Danielis acknowledge the Pythagorean and Stoic origins of this doctrine and explicitly gloss uitas of G. 4.224 with animas.Footnote ⁵⁰ In other words, the intertextual engagement of Nou. Val. 23 with Virgil may be mediated by readings of the Roman poet found in commentaries. Engagement of this kind with commentaries, whether for educational purposes or pertaining to early Christian exegesis, has been recognized as a wider feature of late antique intertextual practice.Footnote ⁵¹

Early Christian writers are fond of the above passage from the Georgics. Already by the third century, Minucius Felix (Oct. 19.2) quoted it to exemplify that the ancients too had a notion of an all-encompassing rational deity that created everything. Proba incorporated two lines from the same passage while narrating the creation of animals and humankind on the fifth day (lines 107 and 111 diuinae mentis et haustus, terrasque tractusque maris caelumque profundum ∼ Verg. G. 4.420 and 422), thus implying that God created the souls of all living creatures. This notion is expanded in Tityrus when expounding the divine origin of human souls (32–5):

Lines 32–3 and the first half of line 34 reproduce almost entirely Verg. G. 4.219–21—a procedure that goes against the usual rules of centoFootnote ⁵² —with two crucial differences. First, etenim in lieu of Virgil’s quidam generalizes the statement and makes it appear incontrovertible. Second, and more importantly, Virgil’s apibus is replaced with the object animas, which enables Tityrus to rephrase Virgil’s pantheistic suggestions into a statement about the souls as God’s immortal creation.Footnote ⁵³ Minucius Felix, Proba and the author of Tityrus adapted Virgil’s mens diuina to a Christian context: the drafter of Nou. Val. 23 displays a similar use of Virgil. Perhaps this quaestor is more imbued with Christianity than Honoré believed.Footnote ⁵⁴

As was the case with nec uana fides, the drafter of Nou. Val. 23 uses Virgil’s mens diuina as a versatile phrase that can be elegantly redeployed to convey a fundamental notion of theology. In other words, the Virgilian allusions of Nou. Val. 23 are consistent with the late antique tendency to regard Virgil as a repository of sacred knowledge, or even as an inspired prophet who foresaw the coming of Christ.Footnote ⁵⁵ This method of incorporating poetic fragments into a law text owes something to the cento technique of reconfiguring Virgilian material to express a new universal Christian meaning—a way of proceeding that is consistent with the late antique aesthetics of paraphrasing, epitomizing, reassembling ancient models and thus remaking them. In addition, the incorporation of poetic fragments, among which the works of Virgil feature most prominently, appeals to a late antique learned readership for which Virgil was the foundation of any school curriculum and a marker of cultural unity. Finally, the richly poetic diction of the constitutions conforms to the typically late antique ‘breakdown of distinction between prose and verse’.Footnote ⁵⁶ In other words, poeticisms, often deriving from Virgil, are a crucial rhetorical component of the constitutions: they bestow authority on the legal discourse and contribute meaning to their socio-cultural communication.Footnote ⁵⁷