II Problems

The first problem with the consensus position concerns the largely negative results of Barnes’ search for legal enactments involved in the persecution of Christians — just Trajan’s rescript to Pliny, and therefore a simple, unchanging legal position. But this ignores the repeated insistence of Christians in different places, throughout our period, and across genres, that they suffered under multiple laws.Footnote ²¹For example, the Acts of Justin and his Companions, a supposed record of the eponymous apologist’s trial before Junius Rusticus, city prefect in the 160s, speaks of ‘profane ordinances (προστάγματα ἀσεβῆ) posted (ἐξετίθετο) against the pious Christians throughout city and country alike’ (Acta Just. Rec. B 1.1, see too 5.7; Rec. A 1.1, 5.6; Rec. C 1.4, 5.2).Footnote ²²In the Martyrdom of Carpus, Papylus and Agathonice, the proconsul speaks to Carpus of ‘the ordinances of the Augusti (τὰ προστάγματα τῶν Αὐγούστων)’ (Mart. Carp. 4; see too ‘unjust ordinances (ἄδικα προστάγματα)’ in 45).Footnote ²³And the Acts of Apollonius speaks in its Armenian recension of the ‘invincible laws and decree of the emperors’ (Acta Apoll. 1/2; see too 3), and in the Greek equivalent of ‘the decree of the senate (τὸ δόγμα τῆς συγκλήτου)’ (Acta Apoll. 13; see too 14, 23–4) and ‘the decree (τοῦ δόγματος) of the emperor Commodus’ (Acta Apoll. 45; see too Euseb., Hist. eccl. 5.21.4).Footnote ²⁴

Such comments might be more easily dismissed if they were limited to the martyr acta. But a fragment of Melito of Sardis commenting on his contemporary circumstances under Marcus Aurelius also claims that ‘the race of the god-fearing is now persecuted (διώκεται) — that which has never yet at any time happened — being harassed by new decrees (καινοῖς ἐλαυνόμενον δόγμασιν) throughout Asia’ (Euseb., Hist. eccl. 4.26.5; see too 4.26.6).Footnote ²⁵Hippolytus’ early third-century discussion of persecution also speaks of ‘the decree of Caesar (τοῦ δόγματος Καίσαρος)’ (Hippol., Comm. Dan. 1.20.3).Footnote ²⁶And the Historia Augusta suggests that Septimius Severus ‘prohibited (vetuit) people becoming Jews under heavy penalties (sub gravi poena), and even applied the same sanction (idem etiam sanxit) to Christians’ (SHA Sev. 17.1).Footnote ²⁷

It was such passages that fuelled the long scholarly debate over which emperors were ‘persecutors’, and were among those Barnes collected, and — correctly — dismissed as poor evidence of laws targeting Christians. But while some of these sources are of questionable historical value — the Armenian translation of the Acts of Apollonius is both late and fraught, the Historia Augusta famously even more so — others are not, being either contemporary to events or of relatively early date.Footnote ²⁸The persistence of this apparent Christian misapprehension thus remains puzzling. Put another way, the consensus position leaves unanswered why successive generations of Christians insisted that they suffered under multiple laws when we know there were no such laws targeting them.

*

The second problem with the consensus concerns the charge on which Christians were arraigned. The view that Christians were condemned for the nomen is built on, in de Ste Croix’s phrase, ‘what the Christian Apologists say in the second and early third centuries, from several accounts of martyrdoms, and from the technical language used by Pliny and Trajan in their celebrated exchange of letters’.Footnote ²⁹Certainly Pliny’s letter to Trajan, in which he describes the arraigned as ‘those denounced to me as Christians (qui ad me tamquam Christiani deferebantur)’ (Ep. 10.96.2),Footnote ³⁰makes clear that Christians could be charged simply as Christians. But this has been extrapolated into a universal picture by citing the apologists and the martyr acta as corroboratory evidence. That is highly misleading. The apologists and martyr acta do not speak with one voice to persecution ‘for the name’. Rather, they speak of Christians charged with the nomen and with other crimes, including, famously, cannibalism and incest, but also treason, murder, theft and robbery, among others.Footnote ³¹Again, as with the question of legal enactments in the previous section, this confusion is one reason there had historically been such vociferous scholarly debate over the nature of the charge(s) against Christianity.Footnote ³²

Justin, for example, speaks of ‘the name charged against us (τοῦ κατηγορουμένου ἡμῶν ὀνόματος)’ (1 Apol. 4.1; see too 2–6; 2 Apol. 2.7; 24:1–2 uses ἐγκαλεῖν), but also asks that ‘the charges (τὰ κατηγορούμενα) against those of our number be scrutinised, and if they be demonstrated to hold, let them be punished’ (1 Apol. 3.1; see too 4.7).Footnote ³³The charges are in the plural, and that he considers them untrue means they cannot be of Christianity (see too 2 Apol. 12.4). The Greek verb, κατηγορέω, is the same in both phrases. Athenagoras, too, says that ‘the charge stops at our name (μέχρις ὀνόματος ἡ κατηγορία)’ (Leg. 2.1; see too 1.2, 2.2–4, 4.1), and requests that Christians ‘either be discharged if acquitted of the charges (ἀπολυομένους τὰς κατηγορίας) or punished if convicted as wicked (τοὺς ἁλισκομένους πονηρούς)’ (Leg. 2.4; see too 1.3, 2.3), again with identical language.Footnote ³⁴The term ἔγκλημα is also used interchangeably (e.g. Leg. 1.4, 2.5, 3.1, 4.1, 20.1, 31.2, 37.1) as is ἀδίκημα (e.g. Leg. 2.2, 2.4).Footnote ³⁵And Tertullian also claims both that ‘the charge is of the name alone (solius nominis crimen)’ (Apol. 2.20; see too 2.18–19; Ad nat. 1.3) and speaks of plural crimes: ‘we have stood firm, in my view, against all the threatened charges (omnium criminum intentationem)’ (Apol. 46.1).Footnote ³⁶Again, identical language is used.Footnote ³⁷The apologists thus do not unambiguously support the theory of universal charge for the nomen, since they provide equal evidence for multiple, different charges, with no apparent awareness of any tension.Footnote ³⁸

The same is true of the martyr acta. Scholars have pointed to Polycarp’s declaration to the proconsul, ‘I am a Christian (Χριστιανός εἰμι)’ (Mart. Pol. 10.1), and the herald’s affirm- ation (Mart. Pol. 12.2), as proof that the charge was the nomen.Footnote ³⁹But the text never says so, and in fact gives a confused picture, since later we are told that those who sought to per- suade him to save himself said, ‘Where’s the harm in saying “Lord Caesar”, and sacrificing and all that goes with it (ἐπιθῦσαι καὶ τὰ τούτοις ἀκόλουθα) — and surviving?!’ (Mart. Pol. 8.2; see too 9.2–10.1). In the Lyons account, the governor’s question whether the martyrs were Christians (Euseb., Hist. eccl. 5.1.10), their repeated insistence on their Christianity (Hist. eccl. 5.4.10; see too 19–22, 26, 39, 50), the label on the sign paraded with Attalus (Hist. eccl. 5.1.44), and the emperor’s apparent instruction that deniers be freed (Hist. eccl. 5.1.47), all support the nomen model. But the text also speaks of ‘false testimony (κατεψεύσαντο) against us of Thyestean meals and Oedipal intercourse and as many things as it is not right for us either to say or to think about’ (Hist. eccl. 5.1.14; see too 5.1.15, 26, 33, 35 and 52). In the Acts of Justin, the judge asks those arraigned whether they are Christians (Acta Just. Rec. A 3.4–4.8; Rec. B 4.1–9; Rec. C 3.1–6), but his final judgement refers only to a refusal to sacrifice (Acta Just. Rec A 5.6; Rec B 5.7; Rec. B 5.2). Latin texts are equally muddled. In the Acts of the Scillitan Martyrs, scholars have claimed as supporting the nomen theory the proconsul’s question to the arraigned, ‘Do you remain a Christian (Perseueras Christianus)?’ (Acta Mart. Scill. 10), their affirmative answers (Acta Mart. Scill. 10; see too 9, 13), and the sentence pronounced on those ‘who have confessed themselves to live by the Christian rite (ritu Christiano se uiuere confessos)’ (Acta Mart. Scill. 14).Footnote ⁴⁰But this ignores a suggestion that more mundane charges were at stake: ‘I have committed no theft (furtum); on the contrary, if I buy anything I pay back the tax’ (Acta Mart. Scill. 6; see too 2).Footnote ⁴¹

The final text cited as corroboratory evidence is the biblical 1 Peter. But here too the two references to suffering for the Christian nomen are separated by the injunction, ‘let none of you suffer as a murderer or a thief or an ill-doer or as a busy-body (ὡς φονεὺς ἢ κλέπτης ἢ κακοποιὸς ἢ ὡς ἀλλοτριεπίσκοπος)’ (1 Pet. 4.15), seemingly allowing that such charges might be employed.Footnote ⁴²It is only our assumptions about what counts as persecution that mean we focus only on prosecution for the nomen (on which more below). In sum, in almost all the texts traditionally mustered as corroboratory evidence for the consensus that the nomen was always the charge employed against Christians, there is also evidence suggesting multiple charges were employed.Footnote ⁴³Though usually either ignored or dismissed,Footnote ⁴⁴such comments represent a proliferation of cracks in the consensus, and thus deserve more attention.

III Solutions

How might we move forwards? Since we ended the previous section with the charge, let us begin there. Christians clearly could be accused of simply being Christian. But the evidence does not justify the extrapolation that this was the ‘normal’— to use de Ste Croix’s phrase — basis of arraignment, or the further assumption that this was the universal reality. It rather demands that we embrace plurality. If we do so, I suggest, many of the difficulties evaporate.

The most elegant way to combine the conflicting evidence on the charge(s) employed is if the nomen served as a marker of suspected criminal activities. This has been suggested before, most famously by A. N. Sherwin-White in an important article, unjustly oversha- dowed by his later disagreements with de Ste Croix on the topic.Footnote ⁴⁵Sherwin-White, build- ing on the earlier work of Max Conrat and Hugh Last,Footnote ⁴⁶suggested that ‘The nomen then acts as a pointer to the magistrate, indicating a man whom it is proper for him to coerce as a malefactor, if accused’.Footnote ⁴⁷For Sherwin-White, the nomen must have been designated a capital charge ‘by direct magisterial action, that is, by an edictum with or without support of a senatorial decree’.Footnote ⁴⁸But that latter speculation is entirely unnecessary; all we need is that the nomen in practice could flag to a Roman official that the accused were members of a group — and, moreover, one suspected of criminal behaviour.

Close attention to Pliny’s writing confirms this interpretation. Late in his letter he describes his interrogation of Christians; the answers given by the latter reveal the nature of his original suspicions:

Pliny’s initial suspicions were clearly that these Christians gathered at night-time, bound by a criminal oath to nefarious purposes and even to cannibalism. We might recall Pliny’s correspondent Tacitus’ description of Christians as ‘those detested for their shameful acts (quos per flagitia inuisos)’ (Ann. 15.44). So, in this case, Christians were accused for the nomen, but for Pliny that clearly served as a marker for suspicious activities.

This hypothesis makes much better sense, I suggest, of the confused Christian testi- mony that both the nomen and other crimes were charged against them. In fact, Christians often speak to the latter underlying the former. So Tertullian states, ‘you presuppose our crimes from the confession of the name ( praesumatis de sceleribus nostris ex nominis confessione)’ (Apol. 2.11; see too 2.10, 2.16, 2.19, 2.20, 4.11). Athenagoras combines his initial comment on hatred for the name with a plea to the authorities: ‘do not be misled (παρακρουσθῆτε) like the masses based on hearsay (ἐξ ἀκοῆς)’ (Leg. 1.2). In the Lyons account, the governor, when presented with Christians, first just asks whether they are Christians (Euseb., Hist. eccl. 5.1.10), but subsequently slaves of the accused are seized, interrogated and name other unspeakable crimes (Hist. eccl. 5.1.14). The expectation is clearly that those accused of Christianity would be guilty of other illicit activities. In the Acts of Justin too, while the charge may be simply the nomen, the prefect’s first question is loaded with presumptions: ‘What sort of life do you live (Τίνα βίον βιοῖς)?’ (Acta Just. Rec. A 2.1), and his interest is their gatherings (Acta Just. Rec. A 3.1–3; Rec. B 3.1.–4; Rec. C 2.4–5).Footnote ⁴⁹While it is true, then, that their nomen could be charged against Christians — as, in a cognitio concerning crimina extraordinaria, could anything — the best explanation for our contradictory sources is that it served as a marker to officials that those who bore it might be guilty of assorted malpractice.Footnote ⁵⁰

*

If a Roman magistrate would accept the nomen as a charge because it pointed to suspicious deeds, it follows that they would thus also credit accusations of those deeds themselves. Moreover, I suggest, that fits better what we know of the Roman judicial landscape. Recent work on papyrus petitions has shown that provincials engaged with the infrastructure of Roman justice not as a last resort but haphazardly, as one more tactic in the constant judicial manoeuvrings that characterised local life.Footnote ⁵¹This was true of non-elites as well as elites, since half of surviving petitions were by the illiterate.Footnote ⁵²That same litigious culture is reflected in literary testimony to the frequency and eagerness of provincial attempts to co-opt Rome in their internal disputes (Cic., QFr. 1.1.2; Plut., Prae. ger. reip. 814f–815c). Most important, this litigious culture was not finely attuned to the principles or categories of Roman law.Footnote ⁵³Individuals would use multiple charges, often in succession, to try to spark the Roman judicial system to act in their interests against their rivals.Footnote ⁵⁴The way law was actually used on the ground in the empire would thus not lead us to expect clear and consistent use of one charge in the Christian case. Instead, we would anticipate precisely the plurality to which our evidence points.Footnote ⁵⁵

Certain episodes well demonstrate this process in the persecution of early Christians. One neglected nugget lies buried in a letter by a contemporary witness to the suffering of Christians under Decius, Dionysius of Alexandria, preserved in Eusebius’ Ecclesiastical History. Amidst the roster of Christian victims, he records that: ‘A certain Nemesion, also an Egyptian, was falsely accused (ἐσυκοφαντήθη) of associating with robbers (σύνοικος λῃστῶν), but after he had cleared himself of this ill-fitting slander before the centurion, he was informed against as a Christian (καταμηνυθεὶς ὡς Χριστιανὸς) and came before the governor in chains’ (Hist. eccl. 6.41.21). In this double accusation, we see repeated attempts to indict someone, each trying a different charge to see what might stick — very much the modus operandi of local actors searching for means to bring down their rivals (and employing the same language of συκοφαντία used of ‘vexatious litigation’ in the legal sphere).Footnote ⁵⁶In this case the charge that worked was indeed ‘Christian’. But it raises the question whether, if the first accusation had been successful, we would consider this persecution. The charge was different; the antagonism the same.

We may find a similar but inverted situation in a rather jumbled anecdote known from a fragment of the early Christian writer Apollonius, also preserved by Eusebius. This tells of ‘Alexander, the one who calls himself a martyr (τὸν λέγοντα ἑαυτὸν μάρτυρα)’ (Hist. eccl. 5.18.6) and was treated as such by others (see too Hist. eccl. 5.18.7), arraigned in Ephesus, under Commodus, before the proconsul Aemilius Frontinus. Apollonius is keen to assert that Alexander was tried ‘not because of the name (οὐ διὰ τὸ ὄνομα), but because of the robberies he ventured (δι᾿ ἃς ἐτόλμησεν λῃστείας), being already a serial offender (παραβάτης)’ (Hist. eccl. 5.18.9). He then relays how Alexander ‘having falsely appealed to the name of the lord (ἐπιψευσάμενος τῷ ὀνόματι τοῦ κυρίου) was released’ (Hist. eccl. 5.18.9). At the same time, though, Apollonius insists that eventually — but not, it seems, on this occasion — Alexander was convicted for robbery; he speaks of ‘the robberies and other ventures (τὰς λῃστείας καὶ τὰ ἄλλα τολμήματα) for which he has been punished’ (Hist. eccl. 5.18.6; see too 5.18.7). It is difficult to fit this into a coherent sequence, in large part, I suggest, because Apollonius is very keen that Alexander, who he considers a heretic, not be considered a martyr, and so deliberately obfuscates matters. But Alexander clearly suffered multiple arraignments. In one of them he confessed the name of Christ, was ultimately released, and claimed to be, rightly in the eyes of some, a martyr. In another he was accused of robbery and convicted. It is possible, then, to read this in the same vein as Nemesion, but in reverse — Alexander accused first, unsuccessfully, of Christianity, but second, successfully, as a robber. Certainly the charge of ‘Christian’ again seems to be just one of an array of charges that could be mobilised by opportunistic provincials.

A third example may reveal this process in action. We have already encountered the uncertainty as to charges in the case of the Lyons martyrs. A further passage has long been a crux for scholars.Footnote ⁵⁷

The author’s gloating tone pushes an interpretation of events whereby those guilty of apostasy were imprisoned anyway, and punished more violently because of it. Such a providential reading, in which the Roman authorities are tools of divine judgement, was designed to discourage such denial (as becomes clear in Hist. eccl. 5.1.35).Footnote ⁵⁸But historically this makes no sense, even on the traditional reading, where denial of the nomen should have brought immediate release.

An alternative reading is possible, however. The author’s claim that those who accepted the accusation of Christianity suffered ‘no other charge’ suggests that the apostates, on the contrary, did. This is confirmed by the subsequent statement that they ‘bore the charge of being murderers (ἀνδροφόνων … ἐγκλήματα)’ (Hist. eccl. 5.1.35). Moreover, the reference to their ‘first arrest’ suggests they were released and rearrested.Footnote ⁵⁹Read thus, as perhaps with Alexander above, we have individuals charged first with Christianity, and second, when that failed due to their denial, with murder.Footnote ⁶⁰Like Apollonius above, this author works to sharply distinguish two groups of victims in order to avoid characterising some as having been persecuted (Hist. eccl. 5.1.48). But, again, the use of that label is a matter of perspective. The nomen was thus one charge among many that could be charged against Christians in the litigious conflicts ubiquitous to communities in the Roman provinces.Footnote ⁶¹

*

This in turn, I suggest, points towards a solution to the issue of which legal enactments were involved in the persecution of Christians. If we accept such opportunistic accusation as a kind of ‘background radiation’, the question becomes what broader circumstances meant particular charges might be effective at a particular time and place. New legal enactments, I suggest, were a key variable. This can be demonstrated by returning to Nemesion. His accusers, having failed in accusing him as a robber, met success via the Christian nomen. His story is told by Dionysius as one example of the wider mistreatment of Christians in Alexandria in the mid-third century, normally referred to as the persecution of the emperor Decius. But the chronology here is revealing. Dionysius begins his account as follows:

In Alexandria, then, Decius’ edict did not, in fact, instigate violence against Christians. Instead, it came during a period when the community was already riled up against them. That the violence continued after the edict too is evidenced by Dionysius’ subsequent note that ‘many others through cities and villages were torn apart (διεσπάσθησαν) by the unbelievers’ (Hist. eccl. 6.42.1).Footnote ⁶²Dionysius makes clear that many of those who suffered under the edict did so because they ‘were dragged forward by those around them (ὑπὸ τῶν ἀμφ’ αὐτοῖς ἐφείλκοντο)’ (Hist. eccl. 6.41.11; Cyprian, Ep. 8.1.1, 14.1.2, 20.1.2, 59.6.1). This legal enactment, in other words, provided a fresh means by which pre-existing antagonism could be satisfied.

The text of Decius’ edict demanding sacrifice is not extant, so its exact contents cannot be definitively determined. Later Christian authors like Eusebius claim confidently that Decius exclusively targeted Christians: ‘he roused a persecution (διωγμὸν … ἐγείρει) against the churches’ (Hist. eccl. 6.39.1; see too Hist. eccl. 7.11.18; Origen, Homil. Jos. 9.10).Footnote ⁶³But discovery of the edict’s material traces — papyrus libelli documenting petitioners’ requests that their public acts of sacrifice be witnessed, complete with official signatures — make clear that it was in fact universal, rather than directed simply at Christians.Footnote ⁶⁴The long debate on whether the edict was an indirect attack on Christians need not concern us;Footnote ⁶⁵what matters is that it undoubtedly represented a significant innovation.Footnote ⁶⁶This produced a legal context in which an accusation of Christianity was more likely to succeed. Alexandrians ‘grasping at every authority’ had a new way to harness the judicial apparatus of Rome — hence the success of Nemesion’s antagonists at their second attempt.

This should serve as both warning and model. Our Christian sources speak of laws tar- geting Christianity, but the chance survival of contemporary non-Christian evidence shows that this edict did not target Christians specifically, but rather was successfully used against them by their rivals. My hypothesis, inspired by the suggestion of Robinson and the case study of Wendt introduced above, is that the same is true for the other episodes where Christians claim that they suffered due to particular legal enactments, but no such clarificatory non-Christian sources survive. This can explain the disconnect between the insistent Christian memory of suffering under successive laws, and the failure of the scholarly search for any extant legal enactments directly targeting Christians.

This fresh hypothesis makes better sense of our evidence. For example, as noted above, Melito claimed that Christians suffered under ‘new decrees throughout Asia’ (Euseb., Hist. eccl. 4.26.5). There have been numerous attempts to explain these as otherwise unattested pronouncements of either provincial governorsFootnote ⁶⁷or provincial assemblies responsible for the imperial cult.Footnote ⁶⁸In the absence of evidence such theories must remain speculative. But other explanations have tied Melito’s phrase to extant legal enactments. One associates it with two laws of (probably) Marcus Aurelius, one preserved by Modestinus ordering those who terrify people of simpler minds by superstitious means to suffer relegation (Dig. 48.19.30); another from the Pauli Sententiae ordering punishment of soothsayers by beating and either expulsion, deportation or relegation (Paulus, Sent. 5.21.1), and the inventors of new sects by deportation or death (Paulus, Sent. 5.21.2).Footnote ⁶⁹A second linked them to govern- ors being instructed to proactively search out new classes of malefactor, including those guilty of religious offences (Dig. 1.18.13; 48.13.4.2).Footnote ⁷⁰A third tied them to the senatus con- sultum de pretiis gladiatorum minuendis on the use of criminals in the arena.Footnote ⁷¹

All three theories have been dismissed on the primary grounds that none of these laws name Christians, and thus cannot explain Christians being charged with the nomen.Footnote ⁷²But on the model proposed here, it becomes possible that any or all of these legal enactments were mobilised against Christians without having targeted them.Footnote ⁷³It is telling, in that regard, that Melito goes on to describe exactly this kind of opportunistic mobilisation: ‘shameless delatores and those greedy for others’ possessions (ἀναιδεῖς συκοφάνται καὶ τῶν ἀλλοτρίων ἐρασταὶ), taking opportunity from the ordinances (τὴν ἐκ τῶν διαταγμάτων ἔχοντες ἀφορμήν), brazenly carry out robbery (φανερῶς λῃστεύουσι) by night and day, asset-stripping (διαρπάζοντες) those who have done no wrong’ (Hist. eccl. 4.26.5).

One of these mooted laws, the senatus consultum de pretiis gladiatorum minuendis, has also long been connected to the Lyons martyrs.Footnote ⁷⁴An extant inscription claims to record one or more speeches from a meeting of the Senate in 177 at which Marcus Aurelius and Commodus were in attendance which, addressing the festival of the Three Gauls, allowed for priests of the imperial cult to use condemned criminals as cheap arena fodder, rather than paying for costlier gladiators (I 56–58). Some of the martyred Christians certainly died at this festival (Euseb., Hist. eccl. 5.1.47), and the letter describing their martyrdoms comments that they ‘became a spectacle to the world in the place of all the variety in the gladiatorial contests (ἀντὶ πάσης τῆς ἐν τοῖς μονομαχίοις ποικιλίας)’ (Hist. eccl. 5.1.40; see too 5.1.53). Again, this law has been dismissed in our context because it did not directly concern Christians.Footnote ⁷⁵But freed from that requirement, it is telling that those Christians who died in the festival did so at a later time than those who died in the mob violence. If the catalyst for the accusation of the former was the senatus consultum creating an environment ripe for delation, the situation echoes that under Decius — pre-existing local unrest exacerbated by a new legal enactment that neither named nor targeted Christians.Footnote ⁷⁶

Similar in kind is the long-running question whether Christians suffered under a law of Septimius Severus. Explicit claims to this effect by later Christian authors like Eusebius (Hist. eccl. 6.1.1; see too 6.2.2–12.1) have been bolstered by the vaguer testimony of earlier Christian texts and the aforementioned claim of the Historia Augusta that Septimius prohibited conversion to both Judaism and Christianity (SHA, Sev. 17.1).Footnote ⁷⁷A specifically anti-Christian edict cannot be sustained.Footnote ⁷⁸But it is much more plausible that our sources preserve a garbled memory of Christian suffering under other legal enactments opportun- istically mobilised against them, whether that be an attempt to curb proselytism to Judaism (especially given the continuing proximity between the two faiths), or Septimius’ crackdown on magicians, astrologers and prophets (see Paulus, Sent. 5.21.1–4, 5.23.14–19).Footnote ⁷⁹

Another piece of evidence better explained on this hypothesis is a rescript of Hadrian often cited erroneously as affirming Trajan’s rescript. Having received a letter from the governor Serenius Granianus, Hadrian writes to his successor Minucius Fundanus about cases involving Christians. Echoing the language of Melito, he anticipates opportunistic accusation: ‘lest the people be disturbed (ταράττωνται) and delatores be offered a window for slander (τοῖς συκοφάνταις χώρα κακηγορίας παρασχεθῇ)’ (Justin, 1 Apol. 68.7). Moreover, he expects that such attempts will appeal to multiple legal enactments,Footnote ⁸⁰and that each must be considered on its own merits: ‘if, then, someone makes an accusation and shows them doing something against the laws (παρὰ τοὺς νόμους), settle it according to the degree of the wrongdoing (κατὰ τὴν δύναμιν τοῦ ἁμαρτήματος)’ (Justin, 1 Apol. 68.10). If authentic, this fits much better with ad hoc appeal to eclectic legal enactments than with the traditional orthodoxy.Footnote ⁸¹

Hadrian’s missive suggests that the punishment fit the crime. This offers a segue to a piece of evidence thus far conspicuously absent from our discussion — Lactantius’ well- known comment that ‘Domitius, in the seventh book of his De officio proconsulis, collected the wicked imperial rescripts (rescripta principum nefaria) in order to show with which punishments those who confess themselves to be worshippers of God should be afflicted’ (Lactant., Div. inst. 5.11.19).Footnote ⁸²First, what is most striking here — and rarely noted — is that Ulpian speaks of rescripts in the plural. That fits better with the new model here proposed than the traditional position, on which it is difficult to see what disparate rescripts there were for Ulpian to collect. Second, the goal of Ulpian’s collection is apparently to demonstrate the range of punishments to which Christians might be subject. Such a multiplicity of punishments also fits ill with the old view, where, as Barnes asserts, ‘execution was the Christian’s normal punishment’ — again, if that was the case, it is hard to see the point of Ulpian’s collection.Footnote ⁸³This thus points to a better interpretation of Lactantius’ comment — that Ulpian collected not simply specifically anti-Christian rescripts, but those diverse rescripts mobilised at different times in the first two centuries against Christians, though not necessarily either naming them, or used exclusively against them. Such a collection would have produced a predictable diversity of punishment, making Ulpian’s reported goal comprehensible.Footnote ⁸⁴

The above examples include imperial constitutiones, senatusconsulta, and perhaps gubernatorial edicta and local laws as well. That matches the broad basis of imperial-era law, with its wide range of sources of law, the layered accretions of generations of provincial legal systems, the complex interactions between them, and the varied and changing ways they could be and were used.Footnote ⁸⁵The malicious delator had a wide range of possible accusa- tions at his disposal; if one landed, from the Christian perspective it would, to all intents and purposes, be a legal enactment ‘against’ them — hence why the Christian literary tradition memorialised them as such.

*

This fresh model has a further corollary. If Christians suffered under whatever charges and legal enactments might be mobilised against them by an imaginative opponent, there is no de facto requirement that these be criminal.Footnote ⁸⁶Put another way, that Christians certainly sometimes suffered under criminal law need not mean that they always did. The objection that Christians always received the death penalty, which can only have resulted from criminal proceedings, is easy to refute, since we have ample — if neglected — evidence of Christians suffering lesser penalties. And the possibility is only made more likely by the fact that in the imperial period the governor exercised both criminal and civil jurisdictions simultaneously.Footnote ⁸⁷Christians could thus, I suggest, have suffered under civil law.

Such episodes would likely make for less dramatic stories, so it is little wonder that we find limited evidence of them in our Christian sources. But that is not to say that they have left no traces. Amidst his roll-call of so-called ‘heretics’, and the means by which the ‘orthodox’ suppressed them, Eusebius tells of Paul of Samosata, third-century bishop of Antioch, to the correction of whose alleged theological error two councils were dedicated. The second excommunicated him, and his see was given to one Domnus. Paul, however, refused to go gracefully, continuing to act as bishop and — crucially — to occupy property to which his opponents felt he was not entitled:

This should, in my view, be considered an episode of persecution. We have a clear (and successful) attempt to mobilise the infrastructure of the state against a Christian, with the goal of physical ejection and material detriment. That this stems from an internal Christian dispute does not disqualify it, since other ‘traditional’ episodes of persecution had similar origins.Footnote ⁸⁹Likewise the relatively minor degree of loss encountered should not discount it, since we do not customarily judge whether something counts as ‘persecution’ in other cases by the metric of relative suffering. And if the objection were that persecution should be in some sense motivated by the Christian identity of the victim to count as such, one might well imagine Paul considering that to be precisely the case here, given that the disagreement ostensibly originally stemmed from theological differences.

We can reconsider the legal basis of the dispute in this light. The emperor was clearly asked to adjudicate a question of disputed possession.Footnote ⁹⁰Legal ownership of church prop- erty at this time is a thorny issue, and we need not solve it here. Whether one thinks, with traditionalists, that Gallienus’ edict of toleration of 259/260 (Euseb., Hist. eccl. 7.13.1) recognised the right of the church to hold property collectively,Footnote ⁹¹or more cautiously — as do I — that it merely responded to a specific petition by select bishops and that church buildings thus remained the property of private individualsFootnote ⁹²— Paul was either way in possession of a building that rightly belonged to (an)other(s), whether a collective asserting that Paul was no longer of their number,Footnote ⁹³or an individual who had allowed Paul possession but now refused it.Footnote ⁹⁴

In legal terms, the petitioners were probably seeking the return of the building either by proving they were the owners under the vindicatio,Footnote ⁹⁵or that their claim to possession was superior on the basis that Paul had initially acquired it by force, stealth or permission.Footnote ⁹⁶Paul may have denied that the latter criteria applied, or else claimed ownership (dominium) via usucapio — acquiring ownership through possession. In classical Roman law, one had to have been in possession for two years for this to apply (which Paul had been);Footnote ⁹⁷in the later period, what mattered was that possession be in good faith.Footnote ⁹⁸Either way, such cases were common,Footnote ⁹⁹and the onus was on the challenger(s) to prove title, which process Eusebius here records. Here, then, a Christian was persecuted through the law of property.

IV Conclusion

If we return, in closing, to Barnes’ seminal article, it becomes clear that the terms of his project — a search for legal enactments ‘which directly concerned the Christians, or which were directly rendered necessary by them’ (italics mine) — limited the scope of his enter- prise.Footnote ¹⁰⁰Its negative results produced by default a uniform picture of Christian experience that neglected the persistent testimony of the apologists and the martyr acta to Christian suffering on multiple charges and under multiple legal enactments. This repeated insist- ence by early Christians on the apparently flexible and eclectic use of law against them has been ignored by virtually all scholarship of the last half century. But it aligns perfectly with recent revelations about how Roman law was actually used by the denizens of empire. That prompts an alternative hypothesis, that Christians could be impugned with multiple charges as part of the usual opportunistic efforts to find one that would resonate with a particular Roman official at a particular time, whose chances of success could be increased by legal enactments that, while not targeting Christians, might make a particular charge more likely to stick.

I have tried to show above that this model better explains both the extant non-Christian and Christian evidence for the experience of early Christians under the Roman empire. But in closing, it is worth noting too that the current orthodoxy is forced to conclude that ‘Christianity was a crime in a special category’.Footnote ¹⁰¹There is arguably no more prominent or long-standing scholarly consensus to have emerged from and continue to buttress Christian exceptionalism. That is not to say, of course, that we should expect total consistency from the Roman legal ‘system’, especially not in the less systematic field of criminal law. And it is also true that the system worked in part because an in-built degree of arbitrariness kept provincial populations on their toes.Footnote ¹⁰²At the same time, the Roman imperial project was justified in part on the promise of predictability and justice.Footnote ¹⁰³While individuals may well have experienced inconsistency from the judicial system, it would be surprising if an entire category of people could expect consistent injustice. In any case, what should make us wary in the Christian case is that we have more material written about their experiences by them than for any other minority group, that that testimony implies that they were treated differently from any of those other groups, and that that perception of difference has been constantly reaffirmed because they have often been studied by scholars interested in them only in isolation, and often with a pre-existing commitment to their singularity. If, on top of that, the available evidence proffers an alternative reading which does in fact align with the legal treatment of other groups in the empire, then that reading at the least deserves serious consideration.

It is worth noting too that this hypothesis fits better not just with both the surviving evidence for the persecution of Christians, and the general legal landscape of the empire, but with the realities of persecution in other periods. I take as an example fourteenth-century France and the Crown of Aragon, the subject of David Nirenberg’s seminal Communities of Violence.Footnote ¹⁰⁴Close readings in the unusually extensive archive of extant petitions revealed a culture of everyday competition that resulted in a ‘background static of violence’Footnote ¹⁰⁵encompassing ‘[a]ccusations at law, attempts to mobilize the “state” ( judge, torturer, executioner) against an individual’.Footnote ¹⁰⁶The resulting ‘economy of accusation’Footnote ¹⁰⁷was one which local populations became experts at negotiating to their own advantage.

In such conditions, legal enactments issued by the government could serve as a light- ning rod. In 1321, for example, in response to rumours of well-poisoning, King James II of Aragon issued an edict against lepers that ordered the arrest of all suspicious foreigners, the subsequent trial and punishment of lepers and those otherwise guilty, and the ejection of non-lepers and imprisonment of native lepers. As Nirenberg observes,

Accusations of leprosy were already routine, and ‘seem to have been used by communities to expel people perceived as troublemakers’. But in 1321 such accusations increased. In other words, participants in this competitive judicial culture seized on a new opportunity offered by a legal enactment by the state. Nirenberg speaks of ‘the rapidity with which strategies of accusation were adapted to “national” political events by local populations seeking to meet local needs’.Footnote ¹⁰⁹A new edict thus enabled the temporary but widespread success of a particular routine charge: ‘Behind the accusations in France we should see … the formulation and widespread adoption of a rhetoric that momentarily “worked”’.Footnote ¹¹⁰

Moreover, local appropriation meant that this edict could be employed in ways unantici- pated by its authors: ‘It [the edict] creates a category of malefactor that is avowedly impossible to identify with certainty … the edict clearly lent itself to manipulation and (mal?)appropriation’.Footnote ¹¹¹In practice, the edict was used against not just foreigners and lepers, but Jews and Muslims whom it had not mentioned. Persecution of Jews and Muslims in 1321 was thus an unanticipated extension of wider violence against ‘lepers, foreigners, locals with creative enemies’ enabled by a vague edict designed to get at the unidentifiable culprits of contemporary rumours of poisoning.Footnote ¹¹²Finally, it is interesting to see how carefully those seeking to co-opt state agency frame their petitions to appeal to the latter’s interests, usually utilising eye-catching stereotypes concerned either with pollution or illicit sex.Footnote ¹¹³The parallels with the new model here offered for Christians in antiquity are clear.

Finally, this new legal foundation for the persecution of early Christians has a number of wider consequences for the study of the topic as a whole. Here I highlight three. First, it helps explain the episodic nature of persecution. It has increasingly been noted over the last century that in their first 250 years Christians suffered not via universal and systematic persecution, but in scattered, local episodes. But beyond the hypothesised antagonism of individual administrators, there has been no good explanation for why such a pattern emerged. But it is of course exactly what we would expect on a model where ad hoc legal enactments could indirectly serve as lightning rods for clusters of denouncements emerging from an environment where local actors were always on the look-out for a new mechanism to realise their everyday antagonisms.

Second, since each such episode of persecution depended on specific chronological and geographical circumstances, it demonstrates the need for ‘thick’ descriptions of episodes of Christian suffering over and above homogenising chronological narratives of its devel- opment. I attempted such a fine-grained study in my account of Christians arraigned in early second-century Pontus;Footnote ¹¹⁴though we do not always have that level of contextual detail available, other such case studies remain to be written — one might think of late second-century Gaul, or mid-third-century Alexandria.Footnote ¹¹⁵

Third, that this model covers the period up to and including Decius problematises the now-universal tripartite division of the persecutions into the pre-Neronian, pre-Decian, and post-Decian.Footnote ¹¹⁶As we have already seen, it fits the Decian persecution itself. But in closing we can briefly demonstrate its utility at the beginning of the period too. Concerning the much-masticated events under Nero, Tacitus tells how the emperor ‘supplied as culprits, and punished with the most artificial penalties, those detested for their shameful acts (per flagitia) whom the people called Christians’ (Ann. 15.44.3).Footnote ¹¹⁷The link between their identity as Christians and suspected behaviours is key. But the charge in this case must be arson. This is indicated both by the symmetry of the punishment — ‘they were burned to serve as night lights (in usum nocturni luminis urerentur)’ (Ann. 15.44.8) — and by Nero’s motivation in the first place — scapegoating Christians for the fire only works if they are charged with starting it.Footnote ¹¹⁸Moreover, though there is no evidence of any formal constitutio proscribing Christianity, this too is an episode where pre-existing tensions took advantage of a new opportunity in the judicial landscape — in this case, Nero’s apparent need for a distraction from his own misbehaviour. Where previously then the Neronian persecution has been either viewed, erroneously, as involving an imperial constitutio that underpinned subsequent persecution,Footnote ¹¹⁹dismissed, at the other end of the spectrum, as entirely non-historical,Footnote ¹²⁰or positioned uneasily as a kind of earlier outlier,Footnote ¹²¹we can now integrate it into a more holistic understanding of early Christian persecution — as a distinctive manifestation of a persistent phenomenon. We should therefore abandon the artificial division of the persecution of the early Christians into three discrete periods. Throughout the first two-and-a-half centuries of the empire Christians experienced Roman law just like their non-Christian contemporaries — as the means by which diverse local antagonisms might acquire institutional force.

It is with that — the real experience of those who suffered — that we should close. The new model here offered suggests that early Christians’ legal fears were not limited either to being accused of being Christian, or to being formally proscribed as such. Rather, any number of other charges and legal enactments could be the cause of their punishment. Whether or not contemporaries or later generations chose to label such incidents as ‘persecution’ is to my mind less important than the historical fact of the violence these Christians suffered at the hands of state agents.Footnote ¹²²No wonder Roman law loomed so large in their imagination.