15 2hillner

Monastic Imprisonment in Justinian's Novels
Hillner, Julia.
Journal of Early Christian Studies, Volume 15, Number 2, Summer

2007, pp. 205-237 (Article)
Published by The Johns Hopkins University Press

DOI: 10.1353/earl.2007.0033
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Monastic Imprisonment
in Justinian’s Novels
JULIA HILLNER
In the period between 542 and 556 c.e. Justinian issued a number of laws
that prescribed monastic imprisonment as punishment for both higher clergy
and members of the lay elite. Through this legislation, the emperor introduced
into Roman law the unprecedented concept of corrective imprisonment as a
penalty. Starting from a detailed analysis of the laws, this article demonstrates
how the emperor’s innovations built upon both traditional legal practices and
on more recent ecclesiastical and monastic ideals. With monastic imprison-
ment, Justinian adapted the Roman custom of domestic internment as a
substitute for the penalty of exile for elite criminals. The reason for using
monasteries, rather than private households, to provide this public service of
prisoner internment may, on the one hand, have been practical. Ideals of hos-
pitality within a Christian monastic context and imperial influence especially
over Constantinopolitan monasteries may have encouraged Justinian to believe
that monasteries were far less likely to avoid an obligation to host an exile
convict than private households. On the other hand, the emperor also saw mo-
nastic imprisonment as offering additional, historically unprecedented benefits
over traditional domestic internment. As the emperor tried to make sure in his
own legislation on monastic life, monasteries ideally provided an institutional
and architectural framework, as well as a guiding penitential ideology based
on an ideal of correction, which not only offered the opportunity for enhanced
supervision, but also for spiritual correction of the criminal. Justinian’s innova-
tions may have been inspired by the established use of monasteries as peniten-
tial space for failing clerics in ecclesiastical legislation. However, his specific
aim in using monasteries as places of penance, for which an ecclesiastical
precedent does not exist, seems to have been to police the sexual promiscuity
which he discerned among the married laity at his own court.
I would like to thank Gillian Clark (Bristol), Kate Cooper (Manchester), Christy
Constantakopolou (Birkbeck), Paul Fouracre (Manchester), Philip Rousseau (The
Catholic University of America), Martin Ryan (Manchester), Jamie Wood (Manches-
ter), and the anonymous reader of JECS for their comments and advice. I am espe-
cially grateful to the editor of this volume, Kristina Sessa (Ohio State University) for
her outstanding help and encouragement. All remaining errors are mine. Translations
are my own, unless otherwise stated.
Journal of Early Christian Studies 15:2, 205–237 © 2007 The Johns Hopkins University Press
206 JOURNAL OF EARLY CHRISTIAN STUDIES
The reign of the Roman emperor Justinian (527–565 c.e.) witnessed

significant changes to Roman penal practice. In the period between 542
and 556 c.e. Justinian issued a number of laws that prescribed monastic
imprisonment as a short-term or life-long sentence for both lay people
and clergy. Through this legislation the emperor introduced into Roman
law the unprecedented concept of corrective imprisonment as a penalty,
both building on former legal practices and on ecclesiastical and monas-
tic ideals.
Until this time, the Roman range of legal punishments had excluded
the prison sentence.1 The punitive options available to the Roman judge
were execution, exile, forced labor, property confiscation, and corporal
punishment. Since the development of the “dual penalty” system in the
second century c.e., not all of these were equally applied across the social
strata.2 Imperial Roman law before Justinian of course knew of imprison-
ment, but only either as a coercive measure of a magistrate with imperium
to detain a suspect (for example for torture), or as a custodial measure,
to ensure the appearance of the accused at trial or of the convicted at his
execution.3 Justinian’s decision to use monasteries as prisons thus intro-
1. Th. Mommsen, Römisches Strafrecht (Leipzig: Duncker und Humblot, 1899),

299; P. Garnsey, Social Status and Legal Privilege in the Roman Empire (Oxford: Clar-
endon, 1970), 148–49. This presumption has not gone unchallenged, see e.g., W. Eisen-
hut, “Die römische Gefängnisstrafe,” ANRW I.2 (1972): 268–82, who discusses the
case of Caesar, who suggested punitive imprisonment for the participants in the Catili-
narian conspiracy. However, from the horrified reaction of his fellow senators it can
be argued that the proposal was utterly alien to Roman mentality. See also Y. Rivière,
“Carcer et vincula: la détention publique à Rome (sous la République et le Haut-
Empire),” Mélanges de l’École française de Rome/Antiquité 106 (1994): 579–652.
2. Garnsey, Social Status, 153–72.
3. This does not mean that prisons were not used for punishment. With the disap-
pearance of the jury-courts since the time of Augustus and the rise of a new accusa-
torial procedure, the cognitio extra ordinem, magistrates with judicial power, such as
provincial governors, felt increasingly less bound to statutory, often impractical puni-
tive measures and became more creative in inventing new types of punishments. This
is acknowledged by the jurist Ulpian in the early third century, when he complains:
“Governors are accustomed to cast people into prison or bind them in chains; but
doing so is improper, for to punish in this way is forbidden: the prison should be used
for detention, not punishment” (Dig. 48.19.8.9 [ed. Th. Mommsen and P. Krueger,
trans. A. Watson, The Digest of Justinian 4 (Pittsburgh: University of Pennsylvania
Press, 1985), 847]: solent praesides in carcere continendos damnare aut ut in vinculis
contineantur: sed id eos facere non oportet. nam huiusmodi poenae interdictae sunt:
carcer enim ad continendos homines, non ad puniendos haberi debet). On the cogni-
tio extra ordinem see Garnsey, Social Status, 5–6, and M. Balzarini, “Peine détentive
e ‘cognitio extra ordinem’ criminale,” in V. Giuffre, ed., Sodalitas: Scritti in onore
di Antonio Guarino 6 (Naples: Jovene, 1984), 2865–90; for a detailed discussion of
Ulpian’s statement and the competences of the judges in the cognitio extra ordinem
HILLNER/MONASTIC IMPRISONMENT 207
duced a novel penalty, but, more importantly, also the idea of reform as
a goal of this penalty.
In a now classic 1974 study, Francesco Goria explored the forced monas-
ticism of people who were principally alien to the monastic lifestyle dur-
ing the reign of Justinian. He investigated the problem of their integration
into the monastic routine and concluded that Justinian did not intend the
guilty party to dwell in a special environment within the monastery,4 but
was required to enter the monastic status properly, probably after a period
comparable to the novitiate.5
While Goria considered monastic imprisonment and its implications
from the prisoner’s point of view, I shall explore the topic from a differ-
ent angle: the perspective of the lawgiver himself, Justinian, with particu-
lar attention given to how monastic imprisonment potentially related to
the emperor’s broader interests in ordering late Roman Christian society.
Throughout Roman imperial history, private houses were frequently used
to host prisoners as a substitute for the penalty of exile. This article will
establish to what extent Justinian viewed monastic imprisonment as con-
tinuing this service provided by households owned by lay individuals,6
and to what extent he saw it as offering additional, historically unprec-
edented benefits, namely the reform of certain types of elite criminals. It
will reconstruct Justinian’s rationale behind this legislation on the basis
of an analysis of the legislation itself, with some use of literary texts, most
notably Procopius of Caesarea’s Buildings and Secret History.7
see now A. Lovato, Il carcere nel diritto penale romano dai Severi a Giustiniano
(Bari: Cacucci, 1994), 77–168.
4. As some scholars have believed, see, for example, P. Bonfante, Corso di diritto
romano 1 (Rome: Sampaolesi, 1925), 262–63.
5. F. Goria, “La Nov. 134,10; 12 di Giustiniano e l’assunzione coattiva dell’abito
monastico,” in Studi in onore di Giuseppe Grosso 6 (Torino: G. Giappichelli, 1974),
55–76. As stated in his title, Goria focussed almost exclusively on one particular Jus-
tinianic law, Nov 134.10 (556 c.e.) (ed. R. Schoell and G. Kroll, CIC 3 [Berlin: Weid
mann, 1972], 685–86], which lays out the punishments for an adulterous woman.
6. The differentiation of “monastic” and “lay” households is somewhat difficult,
as, at least in the fourth century, the lay household was the site for many forms of
asceticism, especially those practiced by the aristocratic elite; see P. Rousseau, “The
Pious Household and the Virgin Chorus: Reflections on Gregory of Nyssa’s Life of
Macrina,” JECS 13 (2005): 166, 186 and passim. Yet by the sixth century, we can
presume that the concept of the ascetic household of the pious elite, especially in the
east, had been largely supplanted by that of the ordered monastic community. See
P. Rousseau, “Monasticism,” Cambridge Ancient History 14 (Cambridge: Cambridge
University Press, 2000), 756.
7. While of course it can be problematic to try to use Roman legal sources as evi-
dence for sociological reality, we can certainly use them to understand how lawmakers
After an introduction to the legislation in question, I will compare the

two phenomena of domestic and monastic imprisonment, and will argue
that in both cases the Roman government imposed the hosting of prisoners
on the community in question as a public service, which took advantage of
their shared commitment to the cultural ideal and practice of hospitality.
In this context, it also exploited the monastery’s ideological commitment
to a fuller and more expansive understanding of hospitality than was pre-
viously envisioned. A comparison between the two phenomena will also
enable us to chart the differences between traditional domestic imprison-
ment and Justinian’s model of monastic imprisonment. It will be argued
that Justinian recognized monastic space as space where society, specifically
elite urban society, could be engineered better than in traditional spaces of
punishment, like the lay household. Sixth-century monasteries provided
an institutional framework and a guiding penitential ideology based on
an ideal of correction, which could be harnessed for the reformation of
Christian prisoners.
THE LEGISLATION
Justinian’s legislative work is probably one of the best known achieve-

ments of his reign. His CIC, an authoritative collection of the mass of
legal literature of the empire, was published in 534. It includes the Codex
Justianianus, a collection of imperial rescripts and constitutions from the
second century up to Justinian’s own reign. The Codex reveals the emperor
not only as a guardian of previous law, but also as a zealous legislator
himself. This did not stop with the publication of the Corpus. Until his
death, Justinian continued to issue numerous Novels (Nov).
All of Justinian’s laws on monastic imprisonment are Novels, as they
were promulgated between 542 and 556. All but one prescribe imprison-
ment as a sentence. The exception is Nov 134.9.1 (556) (CIC 3.684), which
prohibited the incarceration of women awaiting trial in public prisons and
instead ordered them to be held in monasteries or in private houses to
protect them from their male guards. The use of monasteries for coercion
or custody was not a novelty, but seems to have been a common feature
in government policies already before Justinian. For example, during the
Monophysite persecution in Amida in Mesopotamia under his predecessor
like Justinian ideally conceived sociological reality; on similar methodological problems

when using late Roman laws as historical sources see M. Salzman, “The Evidence for
the Conversion of the Roman Empire,” Hist 42 (1993): 362–78.
Justin, the holy man Sergius was imprisoned in a Chalcedonian monastery

in Armenia.8 While in Sergius’s case the monastic imprisonment probably
was an ad hoc coercive measure by the responsible magistrate, Justinian
in Nov 134.9.1 wanted to insure that in case of women held in custody
magistrates were bound to prescribe this form of private internment.
The Novels delineating monastic imprisonment as a sentence, rather
than as a coercive or custodial measure, can be roughly divided into two
groups. The first group includes constitutions dealing with marriage law,
while the second is concerned with constitutions on the moral conduct of
clerics. In the first group, Justinian prescribed life-long imprisonment in a
monastery for three groups of people: for women and men who instigated
divorce unilaterally without good reason (Nov 117.13 (542 c.e.) [CIC
3.562–54]; 127.4 (546 c.e.) [CIC 3.635–66]); for both spouses in case
of divorce by mutual consent (Nov 134.11 (556 c.e.) [CIC 3.686–87]);9
and for adulterous women. The stay of an adulterous woman in a mon-
astery, however, was not intended to be permanent. According to the law,
her husband, if he wished, could receive her back after two years. If he
did not receive her, or if he died before taking her back, she was required
to stay in the monastery for the remainder of her life. Another law from
the same year, Nov 134.12 (CIC 3.687–88), declared that a woman who
married her partner in adultery was to be sent into a monastery for life
straight away. In all these cases, the monastery in question was to receive
part of the convict’s property (usually one-third), while the rest was to be
distributed to children, or parents.
With a single exception, the constitutions introducing the prison sen-
tence in a monastery as a sentence for clerics form part of the same period
of legislation in the year 546 c.e. (i.e., Nov 123). In this law, Justinian
ordered life-long imprisonment for deaconesses who continued to cohabit
with men even after being admonished by the bishop (Nov 123.30 [CIC
3.616]). Nov 123 also deals with the problem of clerics gambling (123.10.1
[CIC 3.602–3]), and clerics giving false testimony (Nov 123.20 [CIC
3.609]). In both cases, Justinian ordered the cleric’s suspension, monastic
8. John of Ephesus, Lives of the Eastern Saints, 17 (PO 17:104–5); J. A. S. Evans,

The Age of Justinian: The Circumstances of Imperial Power (London/New York:
Routledge, 1996), 110. Sergius managed to escape through a third-floor window. For
other cases during the persecution occurring in Constantinople, see John of Ephesus,
Historia ecclesiastica, frag. 3.6–8 (CSCO 106:4).
9. Justinian had already prohibited divorce by mutual consent in Nov 117.10
of the year 542 c.e. (CIC 3.560–61), but the prescribed punishment had then not
become clear.
imprisonment, and return to ministry after a certain period of time. Jus-

tinian also legislated on deposed bishops who had returned to their sees.
He ordered that the bishop was to be sent to a monastery (Nov 123.11.2
[CIC 3.603–4]). Finally, Nov 131.14 (545 c.e.) (CIC 3.662–63) dealt with
the sale of church property to heretics by clerical administrators.10 If they
sold the property, the administrators were to be excommunicated for a
year and sent to a monastery.
Regarding Justinian’s legislation on monastic imprisonment, Karl Noeth-
lichs concludes that the emperor’s motivation must have been the gender
of the criminals given Justinian’s self-stated interest in the well-being of
women.11 Noethlichs argues that the introduction of the prison sentence
was a measure favorable to women, since it was perceived to be a lighter
punishment than others. In this Noethlichs is clearly influenced by Nov
134.9.1 (CIC 3.684), which, as we have seen, prescribed monastic or
domestic imprisonment, rather than public prison, for women awaiting
trial.12
However, as the range of his legislation shows, Justinian prescribed
monastic imprisonment not only for women, but also for lay men, and for
high ranking clerics. I would, therefore, propose that it was less the gender
of the criminals that determined the choice of the monastery as a place of
imprisonment than their membership in two elite institutions which were
in Justinian’s mind essential to the integrity of Christian society: the aris-
tocratic family and the upper echelons of the clergy.
10. The administrators in question were the so-called oikonomoi, which the Coun-
cil of Chalcedon in 451 c.e. had prescribed each bishop’s church to have. The oiko-
nomos was to be selected from the clergy of the bishop’s church, Chalcedon can. 26
(NPNF 14:285).
11. K. Noethlichs, “Das Kloster als ‚Strafanstalt‘ im kirchlichen und weltlichen
Recht der Spätantike,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, kan. Abt.,
80 (1994): 39, citing for example Nov 97.3 (539 c.e.) (CIC 3.472–73). Justinian’s
interest in the legal status of women has often been noted by his biographers as one
of the most striking features of his legislation; see R. Browning, Justinian and Theo-
dora (London: Weidenfeld and Nicolson, 1971), 61; J. Moorhead, Justinian (London:
Longman, 1994), 36–37; Evans, Age of Justinian, 209–10.
12. The reluctance to imprison women is apparent throughout the history of Roman
law; see J.-U. Krause, Gefängnisse im Römischen Reich, Heidelberger Althistorische
Beiträge und Epigraphische Studien 23 (Stuttgart: F. Steiner, 1996), 171–78.
DOMESTIC IMPRISONMENT AS AN
ALTERNATIVE TO EXILE
To show that Justinian’s interest, in this respect, was in elite behavior

(rather than in female behavior only) we must first understand the rela-
tionship of monastic imprisonment to the very traditional Roman penalty
of exile, which was targeted specifically at the elite.
Roman law recognized two forms of exile. The penalty could come
either without loss of citizenship (relegatio), or with loss of citizenship
(deportatio).13 Deportatio was always a lifelong sentence, and hence
entailed lifelong stay in the assigned domicile, while relegatio could also
be for a limited time.14 Where relegatio was lifelong, it usually included
some loss of property.15
An analysis of Justinian’s laws shows that, in some respect, the emperor
must have been working from this penal precedent. The Justinianic law on
adultery, which sent an adulterous woman to a monastery and assigned
a portion of her property to the monastery if her husband did not take
her back after a two-year period, of course, followed up the Lex Iulia de
adulteriis of 18 b.c.e. Here relegatio and partial loss of property had been
the penalties set for the woman.16 Moreover, the preamble of Justinian’s
law clearly stated its dependence on earlier Constantinian legislation,
wherein the punishment for adultery most probably had been a form of
exile, deportatio with loss of citizenship.17 As far as divorce was concerned,
Constantine had prescribed the loss of her dowry and relegatio for a wife
guilty of divorce in a law that prohibited unilateral divorce unless one
13. Mommsen, Strafrecht, 967–69.

14. For example for ten years (Tac. ann. 3.17; 6.49 [LCL 249:550; 312:240]).
15. Mommsen, Strafrecht, 976.
16. For the penalties of the lex Iulia de adulteriis see J. Evans Grubbs, Law and
Family in Late Antiquity: The Emperor Constantine’s Marriage Legislation (Oxford:
Clarendon, 1995), 204; A. Arjava, Women and Law in Late Antiquity (Oxford:
Clarendon, 1996), 195.
17. It is sometimes assumed that Constantine might have introduced the death
penalty, instead of the penalties of the original lex Iulia de adulteriis of relegatio and
partial loss of property, as a Constantinian law of 313/5 c.e. lists adultery among
the most serious crimes which received a capital penalty. Adultery was punished with
death (by drowning in a sack or being burned alive) under his son Constans (CTh
11.36.4 (339 c.e.) [ed. Th. Mommsen and P. Meyer, 2nd ed. (Berlin: Weidmann,
1954), 648]). Yet, a capital penalty could also mean deportatio with loss of citizen-
ship, and, in any case, the death penalty was not universally applied and emperors
continued to lay down penalties other than death, such as Majorian, who prescribed
deportatio (NMaj. 9 (459 c.e.) [ed. Th. Mommsen, P. Meyer (Berlin: Weidmann,
1895), 175–76]).
partner in the marriage was charged with or convicted of certain crimes.18

In the Justinianic laws, the emperor assigned a new penalty for unilateral
divorce (first for women and later also for men): the guilty party was sen-
tenced to lifelong monastic imprisonment, and a portion of his property
was to be handed over to the monastery for his care.
Where Justinian’s laws on clerical misbehavior are concerned, previous
imperial legislation had dealt only with the case of deposed bishops trying
to return to their sees. Yet a law issued by Arcadius and Honorius in 400
c.e. ordered a deposed bishop who was unwilling to give up his ministry
to spend his life a hundred miles away from the city.19 In Justinian’s leg-
islation, this same bishop was to be sent to a monastery. Again, Justin-
ian converted the penalty of exile into monastic confinement. We could,
therefore, argue that Justinian regarded lifelong monastic imprisonment
as a substitute for the penalty of relegatio without loss of citizenship, but
with loss of property. Short-term monastic imprisonment, as in the case
of adulterous women whose husbands took them back after a two-year
period, did not entail loss of property, and therefore probably substituted
the penalty of relegatio without loss of property.
In certain respects, Justinian’s use of a monastery for the substitution of
the penalty of exile is also consistent with the actions of previous emperors,
for punitive internment in a household community had long been used as
an alternative to exile. The early third-century jurist Ulpian mentioned
that under the cognitio extra ordinem procedure governors were allowed
to substitute domestic internment for exile, as long as, the jurist Marci
anus added, this substitution did not unduly strain public expenditure.20
We know of one case of domestic internment in 32 c.e., when, according
to Tacitus, the emperor Tiberius initially exiled the senator (and famous
declamator) Iunius Gallio to the island of Lesbos. Yet Tiberius eventu-
ally ordered Gallio to be returned to Rome, where he was confined in
the house of magistrates (custoditurque domibus magistratuum).21 From
a related incident, reported by Cassius Dio, we know that Tiberius pre-
ferred this kind of domestic imprisonment also to the death penalty. On
18. The wife of adultery, magic, or procuring, the husband of manslaughter, magic,
or tomb-robbing: CTh 3.16.1 (331 c.e.) (Mommsen and Meyer, 155–56).
19. CTh 16.2.35 (400/405 c.e.) (Mommsen and Meyer, 846–87).
20. Dig 48.22.9 (Ulpian) and Dig 48.22.10 (Marcianus) (The Digest of Justin-
ian 4.861).
21. Iunius Gallio had rewarded the praetorian guard with special seats in the the-
atre without consulting the emperor: Tac. ann. 6.3 (LCL 312:156–58); Cass. Dio
58.18.4 (LCL 175:232), who tells us that Iunius Gallio was interned even before he
left for Lesbos.
Tiberius’s initiative the senate pronounced a death sentence for Asinius

Gallus, the husband of Tiberius’s ex-wife Vipsania Agrippina, who had
criticized his regime and befriended Tiberius’s rival, the praetorian prefect
Seianus. Tiberius, however, transformed the death penalty into imprison-
ment in the houses of the current consuls, or, whenever Tiberius himself
was consul, a praetor.22
This substitution of exile with domestic internment, Theodor Momm
sen argued, built on the well-established legal feature of custodia, the use
of private houses for detention of prisoners, while either awaiting their
trial or the execution of their sentence.23 Although this house arrest was
not intended to be a punishment, it could become regarded as just that.
This was mainly the case if the actual punishment became delayed.24 We
know of this again from an incident reported to have occurred during the
reign of Tiberius. The emperor, Cassius Dio tells us, interned several of
his friends in private houses while they were waiting for the implementa-
tion of their sentences. In one case, the duration of domestic imprison-
ment was very long, as Tiberius kept postponing the implementation.25
Two hundred years later, house arrest as punishment seems to have been
common, at least in the context of imperial jurisdiction. The consularis
Iulius Paulus, whom Septimius Severus regarded as a little too daring in
his free speech, was put into fulakª éd°smƒ, apparently as a punishment
for an unspecified time.26
The penalty of exile and the substitution of exile with domestic intern-
ment, of course, usually were applied only to members of the honestiores
class.27 It is, therefore, reasonable to assume that also Justinian’s laws on
22. Cass. Dio 58.3.4–5 (LCL 175:192); see Krause, Gefängnisse, 187; P. Pavón
Torrejón, La cárcel y el encarcelamiento en el mundo romano, Anejos de archivo
español de arqueología 27 (Madrid: CSIC, 2003), 204.
23. Mommsen, Strafrecht, 973 n. 3.
24. In the same way, imprisonment in public prisons could become associated
with punishment in the public discourse even if not officially expressed in a sentence,
as, due to slow legal procedures, many defendants and convicts never did experi-
ence their trials or executions, but lingered in the prison for long times: see Krause,
Gefängnisse, 83–91.
25. Cass. Dio 58.3.4 (LCL 175:192).
26. Cass. Dio 78.11.1a (LCL 177:300).
27. Mommsen, Strafrecht, 968–69; see, for example, CTh 1.5.3 (331 c.e.) (Momm
sen and Meyer, 35–36): if a criminal patrimonio circumfluit, he should be relegated
to an island for two years; quod si agrestis vitae sit aut etiam egentis he should be
sent to the mines for two years. For the penalty of forced labor as an equivalent
of exile at the lower end of the social scale see F. Millar, “Condemnation to Hard
Labour in the Roman Empire, from the Julio-Claudians to Constantine,” BSR 52
(1984): 128–47.
monastic imprisonment were meant to manipulate the behavior of upper

class people. In fact, his laws on clerical misbehavior clearly indicate this
interest. It was only the clerical elite, bishops, presbyters, and deacons or
deaconesses who came to enjoy monastic imprisonment. As Nov 123.20
(CIC 3.609) that penalized clerics giving false testimony pointed out, clergy
of lower ecclesiastical rank were not to be sent to a monastery, but only
received corporal punishment.
As far as the groups of lay people for whom he envisaged monastic
imprisonment are concerned, these may have been even members of Jus-
tinian’s own court. To begin with, Roman laws on adultery and divorce,
such as the lex Iulia de adulteriis, traditionally focused on elite families
and their sexual values.28 Up to the third century, in fact, relegatio was
almost always the only penalty for adultery discussed in legal sources. It
is only from the fourth century that more brutal penalties, most notably
the death penalty, begin to feature in the punishment of elites.29 It has been
argued that this late antique shift reflects late Roman lawgivers’ increased
attention to the behavior of exponents of the middle and lower classes, to
whom such penalties usually were applied in the courts of provincial gov-
ernors, which, being extra ordinem, were not tied to the statutory penalty
of relegatio laid down in the lex Iulia de adulteriis.30 Significantly, Justinian
himself in the earlier period of his rule had prescribed the death penalty
for adulterers.31 He only returned to imposing a form of exile, monastic
imprisonment, with Nov 134.10 (556 c.e.) (CIC 3.685–86). What this may
mean, of course, is that this particular law was inspired by and designed
to manipulate elite behavior.
A desire to promote elite morality was certainly behind the promulgation
of the laws that prescribed monastic imprisonment for divorcees. From
the preamble of Nov 117.13 (542 c.e.) (CIC 3.562–64) that dealt with
unilateral divorce without just cause, we learn that Justinian had issued
this law because he was inspired by real-life cases of “certain women who
desire to live debauched lives [and] hasten to dissolve their marriages.”32
28. S. Dixon, The Roman Family (Baltimore/London: Johns Hopkins University

Press, 1992), 79–80.
29. CTh 9.40.1 (314 c.e.?); 11.36.1 (314/15 c.e.) (Mommsen and Meyer, 500–501
and 646–47); Arjava, Women and Law, 195–96.
30. Arjava, Women and Law, 201–2. On the power of imperial Roman governors
to prescribe other penalties than those laid down in the leges that had been designed
for the standing courts in Rome (ordines), see above n. 3.
31. J. Beaucamp, Le statut de la femme à Byzance, vol. 1 (Paris: De Boccard, 1990),
165–69; Arjava, Women and Law, 200–201.
32. ÉEpeidØ d° tinew guna›kew µ êndrew és°mnvw boulÒmenoi z∞n spoudãzousi toÁw
fid¤ouw dialÊein gãmouw, (…).
The preamble of Nov 134.11 (556 c.e.) (CIC 3.686–87), on divorce by

mutual consent, similarly mentions those who “deliberately violate our
laws.”33 A curious incident reported by the historian Procopius of Caesarea
in his Secret History, written presumably around 550 c.e., reveals that such
real-life cases may have been known to Justinian first hand. Regarding the
female circle around the empress Theodora the historian reports:
The ladies of the court at this time were nearly all of abandoned morals.
They ran no risk in being faithless to their husbands, as the sin brought no
penalty: even if caught in the act, they were unpunished, for all they had to
do was to go to the Empress, claim the charge was not proven, and start
a countersuit against their husbands. The latter, defeated without a trial,
had to pay a fine of twice the dowry, and were usually whipped and sent to
prison; and the next time they saw their adulterous wives again, the ladies
would be daintily entertaining their lovers more openly than ever.34
The story is very clearly an allusion to Nov 117.9.4 (542 c.e.) (CIC 3.559),
a law from the same series of legislation as Nov 117.13 on unilateral
divorce. Among the few legitimate reasons for divorce, Nov 117.9.4 stated
that a wife may divorce her husband were he to accuse her of adultery
without sufficient proof. The wife would receive financial compensation
and, in addition, could initiate a counter-suit for false accusation. The hus-
band would be punished in the same way that the wife would have been
if the offense had been proven. At the time of the issue of the Novel in
542 c.e., the penalty for adulterous women was death, although it is not
certain how often this extreme penalty was applied at elite level.
Nov 117.9, therefore, represents part of the wider attempt of the impe-
rial couple to monitor and manipulate the moral behavior of their mar-
ried entourage that is also known from other contexts.35 While Procopius
33. ÉEpeidØ d° tinew tÚn ≤m°teron nÒmon paraba¤nen spoudãzousin (…).

34. Procopius, Secret History 17.24–25 (LCL 290:204): TÒte ka‹ ta›w gunaij‹ sxedÒn
ti èpãsaiw tÚn trÒpon diefyãryai jun°bh. §jÆmarton går §w toÁw êndraw §jous¤& tª
pãs˙, oÈ f°rontow aÈta›w k¤ndunÒn tina µ blãbhn toË ¶rgou, §pe‹ ˜sai moixe¤aw èlo›en,
atai kak«n épaye›w ¶menon, parå d¢ tØn basil¤da aÈt¤ka fioËsai ént¤strofo¤ te genÒ-
menai ka‹ d¤khn oÈ gegonÒtvn §gklhmãtvn éntilaxoËsai toÁw êndraw Íp∞gon. peri∞n te
aÈto›w énejel°gktoiw oÔsi tØn m¢n pro›ka §n diplas¤ƒ épotinnÊnai, memastigvm°noiw
d¢ §k toË §p‹ ple›ston §w tÚ desmvtÆrion épaxy∞nai, ka‹ aÔ pãlin tåw moixeutr¤aw
§pide›n kekomceum°naw te ka‹ prÚw t«n moix«n éde°steron lagneuom°naw.
35. E. Fisher, “Theodora and Antonina in the Historia Arcana: History and/or
Fiction?,” in Women and the Ancient World: The Arethusa Papers, ed. J. Peradotto
and J. P. Sullivan (Albany: State University of New York Press, 1984), 305; Moor-
head, Justinian, 21; J. A. S. Evans, The Empress Theodora: Partner of Justinian
(Austin: University of Texas Press, 2002), 33, 111. Procopius often portrays Theo-
dora as a prominent lobbyist for the institution of marriage and the moral conduct
claimed that the aim of the law was Theodora’s wish to cover up the
immoral behavior of her matrons, it is more probable that what Justin-
ian and Theodora were after was equality of men and women before the
law, without, of course, condoning adultery. Procopius’s passage simply
reveals the historian’s traditional Roman fear of female assertiveness aris-
ing from this.36 His story about the behavior of women and men at the
imperial court in any case provides a context for the promulgation of Nov
117.9, and, we may suspect, an analogy also for the contemporary law
Nov 117.13 on monastic confinement of women who divorced unilater-
ally “to live debauched lives.” It is not surprising, therefore, that Justinian
in this law laid down a penalty that took into account the elite status of
delinquents, monastic confinement as a substitution for exile.
During the early and high empire, the government’s reasons for substitut-
ing exile with house arrest may have been practical. Although a sentence
of exile could be issued simply as an order to vacate the city or the prov-
ince (depending on a magistrate’s area of jurisdiction37), it was typically
linked to forced domicile on an island (relegatio/deportatio in insulam).38
of the married couples among the aristocratic families of Constantinople: Procopius,

Secret History 17.7–15; 17.28–37 (LCL 290:200–202 and 206–8); Procopius, Wars,
7.31.1–16 (173:414–18). Due to the nature of Procopius’s complex and contradic-
tory portrait of the empress recent scholarship has shifted the focus away from recon-
structing the “real” Theodora to an analysis of the representation of her character
to understand sixth-century audiences’ attitude to female power and influence. As a
consequence, Theodora’s actions as described by Procopius should not necessarily be
interpreted as products of an authoritarian regime of the empress, but are in fact also
a window into the imperial policy of Justinian; see Fisher, “Theodora”; H. Leppin,
“Kaiserliche Kohabitation: Von der Normalität Theodoras,” in Grenzen der Macht:
Zur Rolle der römischen Kaiserfrauen, ed. C. Kunst and U. Riemer (Stuttgart: Franz
Steiner, 2000), 75–85.
36. On this see A. Cameron, Procopius and the Sixth Century (London: Duck-
worth, 1985), 72–73, 81. The historian conveniently omits the fact that the law to
some extent repeated earlier legislation. Even before Justinian wives had had the right
to recover their dowry and to regard the marriage as dissolved if false accusation of
adultery had been brought against them. It was only the punishment of husbands
who brought false accusations that became harsher under Justinian; see A. Rousselle,
Porneia: On Desire and the Body in Antiquity (Oxford: Blackwell, 1988), 87–88.
37. Mommsen, Strafrecht, 969–71.
38. This seems to have been an innovation by Augustus and Tiberius; see Mom-
msen, Strafrecht, 974. Even where relegatio extended just to exclusion from the civic
community and not to internment, Augustus seems to have restricted the choice of
domicile to islands (Cass. Dio 56.27 [LCL 175:60]). The most famous cases of forced
island residence certainly concern members of the Julio-Claudian family (Tac. ann.
1.3; 1.53; 4.71 [LCL 249:246, 332; 312:126]; Cass. Dio 55.10.14 [LCL 83:410–12]);
but islands (or also desert oases, see Mommsen, Strafrecht, 973) remained the most
The administration of exile in insulam certainly presented difficulties. For

example, Augustus had ordered that exiles should not be sent to islands
closer than fifty miles to the mainland (except for Cos, Rhodes, Samos, and
Lesbos).39 This stipulation was rarely observed in practice, as it obviously
restricted the number of available islands. In fact, we hear from Ulpian
that the emperor often had to come to the rescue of governors who did not
have an island in their province with which to enforce this sentence.40
Yet our imperial sources also indicate that house imprisonment was
considered a harsher punishment than other penalties. In the case of the
senator Asinius Gallus, Tiberius allegedly rejected the original death pen-
alty because he considered it to be too light. The internment in a private
house on the contrary was, in Cassius Dio’s words, regarded as a form of
“terror” (fÒbow). Gallus, we are told, was not allowed to have his slaves
with him, or indeed to speak to or see anyone, except when he was brought
some barely sufficient food.41 Domestic internment, therefore, in this case
seems to have been a humiliating punishment. As at least the early imperial
elite Roman house was usually structured around central courtyards (the
atrium, or, in imperial times, the peristyle), and therefore was based on an
open nature of domestic space,42 it has been argued that social hierarchy in
the Roman house was linked to the extent to which the various members
of the household were able to control their visibility.43 For those who had
the power to control access to them the use of separate rooms may have
common place of exile throughout the empire; see, e.g., Dig 48.22.7 (Ulpian) (The
Digest of Justinian 4, 859–61), CTh 1.5.3 (331) (Mommsen and Meyer, 35–36); and
F. Lätsch, Insularität und Gesellschaft in der Antike (Stuttgart: Franz Steiner, 2005),
218–21. Plutarch, in his On Exile dedicated a large part to exile on islands in his
discussion of actual places of exile, although the exiled addressee of the work, com-
monly identified with Menemachus of Sardis, could travel freely: Mor. 602b–604a
(LCL 405:534–48), see C. Constantakopolou, “The Dance of the Islands: Perceptions
of Insularity in Classical Greece” (PhD diss., Oxford University, 2002), 139.
39. Cass. Dio 56.27.2–3 (LCL 175:60); Garnsey, Social Status, 112 n. 5.
40. Dig 48.22.7.1 (Ulpian) (The Digest of Justinian 4, 859–60); Krause, Gefäng
nisse, 254.
41. Cass. Dio 58.3.5 (LCL 175:192).
42. A. Wallace-Hadrill, “The Social Structure of the Roman House,” BSR 56
(1988): 81, and Houses and Society in Pompeii and Herculaneum (Princeton: Prince
ton University Press, 1994), 44–45; S. Ellis, Roman Housing (London: Duckworth,
2000), 169.
43. See K. Cooper, “Behind Closed Doors: Visibility, Exposure, and Power in the
Roman Household” (forthcoming, Past and Present); R. Laurence, “Space and Text,”
in R. Laurence and A. Wallace-Hadrill, ed., Domestic Space in the Roman World:
Pompei and Beyond (Portsmouth, RI: Journal of Roman Archaeology, 1997), 7–14.
been a privilege.44 In Gallus’s case, in turn, who did not have any power
over his, or anybody else’s, movements, the use of a separate room meant
humiliation. Furthermore, in the characteristic material outline of the
Roman house separate rooms opened onto the central courtyard, which
allowed for panoptic surveillance at least of those users of separate rooms
who did not have control over their visibility.45
Domestic imprisonment had been a viable substitution for exile long
before Justinian introduced monastic internment. However, the question
of why Justinian made yet another substitution—monasteries for private
households—demands further exploration and explanation. Indeed, this
is an especially interesting substitution given the fact that Justinian some-
times used private households for governmental purposes other than for the
administration of punishment. His law Nov 134.9.1 (CIC 3.684), which
ordered to hold women awaiting trial in monasteries, that is, for the pur-
pose of detention, also offered the option to have them guarded in female
households instead.46 The reasons for the substitution of the monastery
for the lay household where punishment, rather than simple detention,
was concerned, I argue, were twofold. First, certain features of domestic
imprisonment could be significantly enhanced in a monastic community,
notably the facts that it was an easier penalty to administer than exile and
that the household’s material organization provided a well-defined system
of control and surveillance. Second, and more importantly, monasteries
enabled Justinian to incorporate an added dimension to the punishment,
the possibility of the convict’s correction. It is doubtful, therefore, that
Justinian’s laws were solely intended to relieve his elite criminals from the
burden of a harsh punishment.
44. See Vitruvius’s point on the control of access to the more private rooms in a
Roman house in On Architecture, 6.5.1: Namque ex his quae propria [loca patribus
familiarum] sunt, in ea non est potestas omnibus intro eundi nisi invitatis (“nobody
has the power to enter the rooms that belong to the father of the house unless they
have been invited”).
45. A. Riggsby, “‘Public’ and ‘Private’ in Roman Culture: The Case of the Cubicu-
lum,” JRA 10 (1997): 51.
46. Nov 134.9.1 (CIC 3.684): efi d¢ barÊtaton eÍreye¤h tÚ ¶gkxlhma §fÉ⁄
kathgore›tai, efiw monastÆrion µ efiw éskhtÆrion §mbãllesyai, µ gunaij‹ parad¤dosyai
aÈtÆn diÉœn dunatÚn svfrÒnvw ka‹ §leuyer¤vw aÈtØn fulaky∞nai, (…).
Monastic Imprisonment:
Power, Punishment, and Penance
Monastic Imprisonment as Enforced Hospitality

While conventional house arrest might have been considered a way to
facilitate the administration of exile, monasteries offered a far greater scope
for this kind of government intervention. The use of private houses as a
substitution for exile probably drew on the ancient household’s commit-
ment to the institution of hospitality.47 Ancient mentality saw hospitality
to foreigners as a sacred duty.48 Yet in its classical Roman form, hospitality
was offered on a voluntary basis and was usually not applied to complete
strangers.49 Engagement in hospitality was expected to be mutually ben-
eficial for both host and guest, which included the host’s gain of prestige,50
to the extent that the relationship between host and guest was considered
as a kind of legal contract.51
The substitution of exile with domestic imprisonment can be seen as
a convenient exploitation of the institution of hospitality by the Roman
government, which can be compared to the duty of quartering members
of the military and the imperial administration, a kind of indirect tax on
propertied households.52 The penalty of exile turned the convict into a
47. It is usually assumed that visitors were a common feature in the ancient house-
hold, so much so that scholars estimating household size have come to distinguish
between household (actual family and slaves) and housefuls (family, slaves, visitors,
lodgers, etc.); see Wallace-Hadrill, Houses and Society, 100–117.
48. For religious sanctions for the rejection of hospitality in Roman mentality, see
L. J. Bolchazy, Hospitality in Early Rome: Livy’s Concept of Its Humanizing Force
(Chicago: Ares, 1977), 26.
49. Even where there was a hierarchical distinction, guests usually came from
communities subject to Roman rule, see J. Nicols, “Hospitium and Political Friend-
ship in the Late Republic,” in Aspects of Friendship in the Graeco-Roman World,
ed. M. Peachin (Portsmouth: Journal of Roman Archaeology, 2001), 101. For the
institution of Roman hospitality see also Th. Mommsen, “Das römische Gastrecht,”
in Römische Forschungen 1 (Berlin: Weidmann, 1864), 326–54.
50. Cicero considered the reception of distinguished and politically influential guests
as valde decorum (Cic. off. 2.18.64 [LCL 30:236]; for the aspect of social prestige
and mutual benefit see also Bolchazy, Hospitality, 33–34; O. Hiltbrunner, Gastfreund-
schaft in der Antike und im frühen Christentum (Darmstadt: Wissenschaftliche Buch-
gesellschaft, 2005), 157.
51. Nicols, “Hospitium,” 107.
52. At all times, Roman government requested its subjects to house Roman officials
and military people, see O. Hiltbrunner, D. Gorce, and H. Wehr, “Gastfreundschaft,”
RAC 8 (1972): 1100–1101; Hiltbrunner, Gastfreundschaft, 101–3. In late antiquity,
we know of this enforced hospitality from a number of laws, from which emerges a
“foreigner,”53 who could expect to be welcomed in a private household.

Yet for a traditional Roman household, this munus of enforced hospital-
ity—in the context of quartering or in the context of exile—must have
represented a burden, given that the concept of hospitality was based on
reciprocity and was widely perceived as voluntary. A prospective host
certainly would have wished to select his visitors carefully. In the late
republic, indeed, heads of private households sometimes would reject
a prisoner as guest, as happened in the case of Catiline, if playing host
brought with it too many disadvantages.54 The incidents from the reign
of Tiberius and beyond discussed above show that, in the face of imperial
coercion, such initiative may have become increasingly difficult under the
empire. Although we do not know of any concrete examples, the alloca-
tion of prisoners may have therefore been one of the many obligations
late Romans are reported to have tried to avoid.55
With the rise of Christianity, the institution of hospitality was redefined.
Lactantius, for example, postulated a new understanding of hospitality by
rejecting the idea of hospitality as mutual benefit. Alternatively, he claimed
that Christian hospitality was inspired by altruism, and ought to be ide-
ally aimed at the poor who could not supply material services.56 Chris-
tian concepts of hospitality saw the guest as the embodiment of Christ.57
Christianity’s innovation to the ideology of hospitality, therefore, was the
introduction of a concept of hospitality that included all people without
regulated system of quartering in private households, called the metatorum praeben-

dorum onus or hospitalitatis munus: CTh 13.3.3 (333 c.e.), CTh 16.2.8 (343 c.e.);
CTh 7.8.3, 5, 7, 10 (384 c.e.) (Mommsen and Meyer, 741, 837, 328–30); NTheod
II 25 (444 c.e.) (Mommsen and Meyer 64–66). The Roman legislation on quarter-
ing as enforced hospitality is also often believed to be at the basis of long-term land-
redistribution for barbarian settlers in the late Roman empire. This view, if accepted,
may allow us to witness the long-term integration of foreigners into an existing com-
munity due to enforced hospitality, which might very well have had a parallel in the
long-term integration of Justinian’s prisoners into a monastic community; but see the
debate by W. Goffart, Barbarians and Romans, a.d. 418–584: The Techniques of
Accommodation (Princeton, NJ: Princeton University Press, 1980).
53. Mommsen, Strafrecht, 964.
54. Cicero, Catiline 1.19 (LCL 324:52).
55. On civic obligations and the increasing problem of their evasion during the
high and late empire see F. Millar, “Empire and City, Augustus to Julian: Obligations,
Excuses and Status,” JRS 73 (1983): 76–96, particularly 89 on senatorial exemption
from the munus of receiving official travellers.
56. Lactantius, Divine insitutions 6.12 (CSEL 19:524–25).
57. This was mainly based on Matt 25.35; see also Matt 18.5; Matt 25.46; John
13.20; Rom 12.13; Heb 13.2, Hiltbrunner, Gorce, Wehr, “Gastfreundschaft,” 1103–4;
Hiltbrunner, Gastfreundschaft, 161–63.
distinction of class, citizenship, or gender, and that placed a particular

emphasis on the stranger’s poverty.58 Hospitality, therefore, began to be
seen as a “free gift” to the poor, with no expectations on the part of the
host for any kind of recompense.59
While this concept of pure hospitality theoretically applied to lay
Christian households,60 it became associated chiefly with monasteries.61
The value of hospitality was emphasized in the fundamental texts that
inspired ancient monasticism.62 Basil of Caesarea, for example, declared
that monasticism should not just be concerned with aiming for the spiritual
salvation of the community’s ascetic members. Instead, it was a monastic
duty to reach outwards as a center of hospitality and welfare for a wider
community.63
Given this understanding of hospitality as a service that extended to all
people, it may have been hard for monasteries to justify a resistance to
Justinian’s order to receive criminals, either in custody, or as a punitive
measure. Yet Scripture also taught that the practice of hospitality and other
acts of philanthropy were not to be the result of coercion, but the fruit
of free will.64 Furthermore, Christian authorities did not clarify whether
58. D. J. Constantelos, Byzantine Philantrophy and Social Welfare (New Brunswick,

NJ: Rutgers University Press, 1968), 12–16; see also F. R. Stasolla, “A proposito delle
strutture assistenziali ecclesiastiche: gli xenodochi,” Archivio della società romana di
storia patria 121 (1998): 43.
59. See D. Caner, “Towards a Miraculous Economy: Christian Gifts and Material
‘Blessings’ in Late Antiquity,”JECS 14 (2006): 334, on the emergence of a Christian
concept of the gift that made no demands on its receiver, and therefore contrasted
with the traditional gift-giving practices in late Roman society. On a Christian “gift-
economy” see also S. Holman, The Hungry Are Dying: Beggars and Bishops in Roman
Cappadocia (New York: Oxford University Press, 2001), 21–25.
60. See, for example, John Chrysostom, In Acta Apostolorum Homilia 45 (PG
60:319–20), who exhorts his flock to set aside rooms in their own houses and receive
the poor, as to offer hospitality to a stranger was to offer it to Christ. Gerontius,
the author of the Vita Melaniae, notes with satisfaction that the house of the noble
Roman couple Melania and Pinianus was always open for poor people and strang-
ers, Vita Mel. graec. 9 (SC 90).
61. Hiltbrunner, Gorce, Wehr, “Gastfreundschaft,” 1115.
62. Th. Lefort, Les vies coptes de S. Pachôme (Louvain 1943), 3, 14–15, Life of
Antony 17 (PG 26:869B); see also Rule of the Master 65.72.79 (SC 106:290–92;
304–6; 322–28), Rule of Benedict 53 (SC 181:610–17), which claims that hospitality
was an original part of monasticism and served for the perfection of monks.
63. See Constantelos, Byzantine Philanthropy, 89–90, and P. Rousseau, Basil of
Caesarea (Berkeley and Los Angeles: University of California Press, 1994), 202 on
Basil’s ideology of hospitality. See also Rousseau, “Monasticism,” 759–60.
64. 2 Cor 9.7; Rom 12.8; Acts 5.1; Ambrose, ep. 62.2 (CSEL 82:10, 2); see Con-
stantelos, Byzantine Philanthropy, 12–16; Hiltbrunner, Gastfreundschaft, 178.
hospitality was really supposed to be applied to any stranger, let alone a

clear sinner. It is true that some Christian writers advised against a host’s
discrimination of people to receive.65 However, not everybody was as
generous. In the third century, the Didascalia apostolorum advised Chris-
tians that strangers moving from city to city were to be asked about their
right belief before hospitality was granted and convicted criminals were
to be avoided.66 In the fourth century, Jerome taught to reject heretics as
guests.67 Like lay households, therefore, monastic communities may have
had their own ideas about which visitors to receive, especially on a per-
manent basis. Justinian, however, seemed to have not foreseen problems
with the monasteries themselves. To be sure, unlike private households,
the monasteries were supposed to receive compensation for the reception
of enforced visitors, in the form of part of the convicts’ property, which
in earlier laws prescribing exile would have gone to the imperial fisc.68
With this Justinian may have created a financial incentive for a monastery
to accept a criminal.
However, Justinian also assumed the monastic movement to be, as it
were, at a general service to imperial demands.69 There is a tendency in
Justinian’s thought to view monasteries as having a role in the government
of the empire. For example, he expected monks to pray for the well-being
of the state, which made their life choice not only useful for themselves,
but for society as a whole.70 Furthermore, it can be argued that Justinian
65. John Chrys. In Heliam et viduam 9 (PG 51:346); Augustine preached to grant
hospitality to opponents, such as the Donatist delegation who came to Carthage in
411: Aug. sermo 357.5 (PL 39:1585–86).
66. Didascalia apostolorum, versio Latina 5.2–4 (ed. F. X. Funk [Paderborn: Schoe-
ningh, 1905], 238–42).
67. Jerome, Against Rufinus 3.17 (SC 303:258–60): solos haereticos non recipimus,
quos vos solos recipitis; ep. 130.14 (to Demetrias) (CSEL 56:193).
68. For confiscation of property in connection with exile see Mommsen, Strafrecht,
1009–11.
69. Noethlichs, “Kloster als ‘Strafanstalt’,” 21–22 and n. 7.
70. Nov 133 pr. (CIC 3.666): OÄ monÆrhw b¤ow kai ≤ katÉaÈtÚn yevr¤a prçgmã
§stin flerÚn ka‹ énãgon aÈtÒyen taw cuxåw efiw yeÒn, ka‹ oÈ mÒnon »feloËn aÈtouw toÁw
efiw toËto pariÒntaw, éllå ka‹ to›w êlloiw ëpasi dia t∞w aÈtoË kayarÒthtow ka‹ t∞w
prow yeon flkete¤aw parexÒmenon tØn pr°pousan »f°leian; Nov 133.5 (CIC 3.674): efi
går §ke›noi kayara›w ta›w xers‹ ka‹ gumna›w ta›w cuxa›w tåw Íp¢r toË politeÊmatow
eÈxåw prosãgoien t“ ye“, prÒdhlon …w ka‹ tå strateÊmata ßj ei kal«w ka‹ afl pÒleiw
eÈstayÆsousi (…) ka‹ ≤ g∞ te ≤m›n o‡sei karpoÁw ka‹ ≤ yãlatta tå ofike›a d≈sei, t∞w
§ke¤nvn eÈx∞w tØn eÈm°neian toË yeoË prÚw ëpasan tØn polite¤an sunagoÊshw; on this
understanding of the purpose of monasteries see also Moorhead, Justinian, 118–19;
C. Humfress, “Law and Legal Practice in the Age of Justinian,” in The Cambridge
believed that monasteries’ legal status in the sixth century left them little
room to express any concerns about imperial expectations to host crimi-
nals. Under Justinian, monasteries, at least officially, were legally dependent
on the bishop’s church and the bishop was seen almost as a government
official, who, consequently, would enforce imperial demands of mon-
asteries.71 The dependency of monasteries on the bishop had originally
been laid down—on the instigation of emperor Marcian—by the council
of Chalcedon in 451 c.e.,72 and the canons were reiterated and expanded
by Justinian himself in 535 c.e. and 539 c.e. (Nov 5 and 133 respectively
[CIC 3.28–35; 666–76]).73 In these laws, Justinian stressed the authority
of the bishop in numerous monastic activities: foundation, building (of the
monastery itself?), alienation of property, confirmation of abbot election,
and most importantly, exercise of secular and ecclesiastical legal rules. The
bishop, in this respect, was seen as a mediator between monasteries and
secular authorities.74 Justinian’s laws calling for monastic imprisonment
accordingly stressed collaboration between the monastery, the secular
authority, and the local bishop. For example, Nov 117.13 (CIC 3.563)
orders an illegally divorced woman to be handed over to the local bishop,
who was to place her in the appropriate monastery. We can imagine that
this protocol involving the bishop was also assumed in the subsequent laws
which extended this punishment to illegally divorced men and to couples
divorcing by mutual consent (Nov 127.4; 134.11 [CIC 3.635–36; 686–87]).
In the case of clerical misconduct, the bishop had to check on the behavior
of clerics who had gambled and had been sent to the monastery in order
to restore them to their ministry (Nov 123.20 [CIC 3.609]).
Yet it may be the case that Justinian, in his belief in the smooth collabo-
ration between emperor, bishop, and monastery, was influenced mostly by
the situation in his imperial capital. Outside Constantinople, and especially
in ecclesiastical areas loyal to the Monophysite cause, imperial authority on
Companion to the Age of Justinian, ed. M. Maas (Cambridge: Cambridge University

Press, 2005), 179.
71. C. Humfress, “Law and Legal Practice,” 179.
72. Chalc. can. 4.8.23 (NPNF 14:270, 273, 283–84); see A. H. M. Jones, The Later
Roman Empire (Oxford: Blackwell, 1964), 933; P. Rousseau, The Early Christian
Centuries (London: Longman, 2002), 300.
73. B. Granic;, “Die rechtliche Stellung und Organisation der griechischen Klöster
nach dem justinianischen Recht,” ByzZ 29 (1929): 8–9. For a detailed discussion of
these two Novels see also C. A. Franzee, “Late Roman and Byzantine Legislation on the
Monastic Life from the Fourth to the Eighth Centuries,” CH 51 (1982): 272–74.
74. Granic;, “Rechtliche Stellung,” 10–16.
monastic matters was often only theoretical.75 In Constantinople, in turn,

Justinian’s Novels dealing with monastic reform may provide evidence of
a tight communication between emperor and bishop where monasteries
were concerned. Both Novels were addressed to the respective patriarch of
Constantinople, to Epiphanius in the case of Nov 5 (CIC 3.28–35), and to
Mennas in that of Nov 133 (CIC 3.666–76). Although it is supposed that
the entire ecclesiastical hierarchy in the provinces (metropolitans, bishops,
abbots) were to be notified by the decision, Nov 133 specifically seems to
have been tailored for the situation in Constantinople. In this Novel there
are two references to monasteries in Constantinople. First, it stated that
the patriarch should ensure that all monasteries in Constantinople or its
environs were to have only one building. In cases where there were more,
even where these had been erected by the emperor himself, the additional
buildings were to be demolished (133.1). Second, the Novel required that
the patriarch examine all the monasteries situated in Constantinople and
appoint ecclesiastical defenders for their supervision (133.4).
The first order retains a clue regarding Justinian’s confidence in the suc-
cess of imperial intervention in monastic affairs. In Constantinople the
emperor was probably seen, at least in Chalcedonian monasteries, as the
ultimate patron, not the least because he materially provided for monas-
teries. In Justinian’s time, there existed around 80 monasteries in Constan-
tinople.76 A number of these were restored by Justinian, most famously
the female monastery in the southern porticus of the church of S. Sophia
founded by John Chysostom’s patron Olympias, which had burnt down
during the Nika revolt in 532 c.e.77
Justinian and his wife Theodora also founded monasteries themselves
in Constantinople. In his panegyric on Justinian’s building program pub-
75. Rousseau, “Monasticism,” 758.

76. R. Janin, La géographie ecclésiastique de l’empire Byzantine 3, 2nd ed. (Paris:
Institut français d’études Byzantines, 1969), xiii. From the subscriptions of their abbots
recorded in the council acts of 518 c.e. and 536 c.e., we know of sixty-eight. All of
these were of course male communities. The number of known female communities in
sixth-century Constantinople is very small. The most famous one, and the one about
which our knowledge is most detailed, is the monastery founded by Matrona from
Perge in the second half of the fifth century, with the help of two aristocratic ladies;
see Janin, Géographie, 329.
77. Life of Olympias, Analecta Bollandiana 15 (1896): 409–23; see Janin, Géog-
raphie, 381. According to Procopius, Justinian also restored the churches of the mon-
astery t∞w YeotÒkou t∞w Phg∞w in 559/60 c.e. (Procopius, Buildings 1.3 [LCL 343:40],
see Janin, Géographie, 223–28) and of the monastery of SS. Kosmas and Damianus
(Procopius, Buildings 1.6 [LCL 343:62]; see Janin, Géographie, 286–87).
lished in 555 c.e., Procopius reported a curious incident which sheds light
on the imperial couple’s influence on the monastic landscape of Constan-
tinople. Procopius related their attempt to rescue the prostitutes of their
imperial city of Constantinople by sending them into a monastery that had
been purposely founded to reform them.78 This passage records a remark-
able involvement of the imperial couple in the founding and, it seems, in
the running of monasteries, which could be used for the rulers’ political
or social agenda. We can assume that such imperial monasteries had less
choice of refusing to comply with imperial wishes than other monaster-
ies. In fact, most occurrences of monastic confinement in later Byzantine
history took place in monasteries that were either imperially founded or
enjoyed imperial patronage.79
Monastic Imprisonment and the Ideal of Correction

Thus, both the ideals of hospitality within a Christian monastic context
and imperial influence especially over Constantinopolitan monasteries
through foundation and financial support may have encouraged Justinian
to believe that monasteries were far less likely to avoid an obligation to
host an exile convict than private households. However, from Justinian’s
understanding of monastic life as revealed in his Novels, it becomes clear
that he must have perceived the function of monastic imprisonment as
qualitatively different from the function of imprisonment in a private, lay
household. Specifically, the monastery, unlike the household, provided an
ideological structure for the reform or correction of the convict.
Justinian had tried to regulate monastic life in his two Novels mentioned
above, Nov 5 and Nov 133, which pre-date the legislation described above
78. Procopius, Buildings 1.9.1–10 (LCL 343:74).

79. The wife and daughters of the emperor Maurice were confined by the emperor
Phocas in 602 c.e. in the Monastery t∞w N°aw Metano¤aw, which according to Theo-
phanes Confessor (chron. [ed. C. de Boor, vol. 1 (Leipzig 1883), 298]) was an impe-
rial monastery; see Janin, Géographie, 332; in 706 the patriarch Callinicus was con-
fined in the Monastery toË XristoË t∞w X≈raw, which probably had been founded by
Justinian and Theodora after 536 c.e.; see Janin, Géographie, 531–39; the patricius
Constantinus Helladicos was confined in the Monastery of Dalmatos in 913, as was
the empress Mary, in 1182 c.e. This monastery was possibly the oldest in Constan-
tinople, a pillar of orthodoxy with a long history of imperial patronage; see Janin,
Géographie, 82. In Merovingian history, monastic confinement of royal rivals and
enemies also usually took place in royal monasteries; see M. De Jong, “What Was
Public about Public Penance? Paenitentia Publica and Justice in the Carolingian
World,” La giustizia nell’alto medioevo (secoli IX–XI), Settimane di studio 44 (Spo-
leto: Centro italiano di studi sull’alto medioevo, 1997), 863–902.
on adultery and divorce. It is reasonable to assume that, for the execution

of the imprisonment penalty, Justinian envisioned a monastery that com-
plied with the standards he set out in these Novels. As for the concrete
organization of the daily monastic life, Justinian strongly adhered to the
ideals of a coenobitic lifestyle when laying down rules for sleeping and
eating behavior. Most importantly, monks should work and eat together
without being assigned private space (Nov 5.3; 133.1 [CIC 3.31–32;
667–68]). Unfortunately, we have almost no archaeological trace of the
layout of monasteries in the imperial capital of Constantinople at the time
of Justinian or monasteries that the emperor founded outside the capital.80
However, we know from John of Ephesus that, when Theodora founded
a monastery for persecuted Monophysite monks and clergy in an annex
to the imperial palace—the so-called palace of Hormisdas—the empress
turned a large hall into the living space for the monks, while only the old
and honored received their own cells.81 Theodora, to some extent, seems
to have respected the monastic ideals of her husband.
To Justinian, therefore, the monastery was the quintessentially ordered
space, where ideally all aspects of one’s daily practices were policed through
constant “togetherness,” although in practice even imperial monasteries
may have had some kind of expectation for privacy, as the outline of the
so-called palace of Hormisdas shows.82 Contrary to the domestic intern-
ment that we have come to know in the case of Asinius Gallus, which
aimed at humiliation of the prisoner through isolation and control from
the outside, the constant togetherness of prisoners with the rest of the
community during monastic internment offered a different dimension of
surveillance. As the emperor himself pointed out, constant “togetherness”
in a monastic community was not about humiliation, but was a way to
ensure that the members of the community “witness one another’s honor
80. While one of the purposes of Justinian’s most famous foundation outside Con-
stantinople, the monastery on Mount Sinai later dedicated to St. Catherine, seems to
have been to turn a loose congregation of hermits into a spatially ordered commu-
nity, only the original walls and the church survive, which does not allow any conclu-
sions about the layout of the monastery; see G. H. Forsyth, “The Monastery of St.
Catherine at Mount Sinai: The Church and Fortress of Justinian,” DOP 22 (1968):
1–19. Y. Hirschfeld, The Judean Desert Monasteries in the Byzantine Period (Lon-
don/New Haven: Yale University Press, 1992), 33 and n. 31 suggests that Justinian’s
prescription may have influenced the architectural design of some monasteries in
sixth-century Palestine and Syria, which feature communal dormitories, refectories,
and work spaces.
81. John of Ephesus, Lives of the Eastern Saints, 47 (PO 18:678).
82. See Kristina Sessa’s contribution to this volume.
and chastity, (…) and [that they] may only reflect upon what is good.”83
For Justinian the constant visibility of members in a monastic commu-
nity to each other therefore offered the option for penance and correction
beyond simply control and deterrence. This reason for life in constant
company recalls Basil of Caesarea’s view of the coenobium. The spiritual
development of any monk in Basil’s eyes was assured by his correction
and guidance by the wider monastic community. In his Shorter Rule 20,
for example, Basil suggested that those brethren who have sinned or are in
danger of sinning ought to be closely watched and cared for.84 His defense
of the coenobitic lifestyle (as opposed to a solitary life) in Longer Rule
7 is based on the advantage that monks could correct each other when
needed.85 In fact, it has been argued that for Basil the very function of
the ascetic community was its program of consultation, encouragement,
advice, and correction.86
In Justinian’s own words the monastic life in this way ultimately puri-
fied a person and removed all human blemishes from him or her.87 That
Justinian was guided by this belief also where criminals sent to monaster-
ies were concerned becomes apparent in Procopius’s anecdote about his
and Theodora’s monastery for rescued prostitutes. In Buildings, Procopius
reported that the monastery was called “Repentance” (Metãnoia), and
that the prostitutes were sent there “so that there through the occupation
which their minds would have with the worship of God and with religion
they might be able to cleanse away the sins of their lives in the brothel.”88
Thus Procopius described the intention of the imperial couple to force a
monastic lifestyle onto these women as their desire to give them an oppor-
tunity to repent and to reform their lives.
83. Nov 5.3 (CIC 3.31): Àste mãrturaw t∞w éllÆlvn g¤nesyai kosmiÒthtÒw te ka‹
svfrosÊnhw, ka‹ mhd¢ tÚn Ïpnon aÈtÚn =ñyumon ßxein, éllå melet«nta tØn eÈkosm¤an
diå tØn t«n Ùcom°nvn §pit¤mhsin.
84. Basil, Shorter Rule 20 (PG 31:1096): “those who are known to be in sin must
be more closely watched” (ToÁw d¢ §n émart¤aiw §jetasy°ntaw ka‹ pl°on ékribeÊesyai
xrÆ). See also Shorter Rule 19 (PG 31:1096).
85. Basil, Longer Rule 7 (PG 31:929).
86. Rousseau, Basil, 219.
87. Nov 5 pr. (CIC 3.28): ÑO §n éskÆsei monaxikª B¤ow oÏtvw §st‹ semnÒw, oÏtvw
ofikeioËn o‰de ye“ tÚn efiw toËto §rxÒmenon ênyrvpon, Àste pãnta m¢n ényr≈pinon aÈtoË
sp›lon épojÊein, kayarÚn d¢ épofa¤nein ka‹ t∞ logik∞ pr°ponta fÊsei ka‹ tå pollå
katå noËn §nergoËnta ka‹ t«n ényrvp¤nvn front¤dvn Íp°rteron.
88. Procopius, Buildings, 1.9.8 (LCL 343:76): §fÉ⁄ tª §ntaËya per¤ te tÚn yeÚn
ka‹ tØn eÈs°beian ésxol¤a genhsom°n˙ perikay∞rai tåw èmartãdaw dunata‹ e‰en t∞w
§n mastrope¤ƒ dia¤thw.
The perception of the monastery as a place of penance, which clearly

shaped Justinian’s legislation, was firmly rooted in sixth-century eastern
monasticism. In Basil of Caesarea’s eyes, to embrace the ascetic lifestyle
was an act of metanoia, of conversion from a previous life and of the
repentance of ongoing sin.89 We can trace this idea of ascetic conversion,
the radical turning away from an imperfect life, and of repentance as a
process of spiritual growth back to Antony of Egypt.90 Many hagiographi-
cal accounts drew on the conversion from a sinful life of their heroes and
heroines, not the least the stories of the redeemed harlots, who embarked
on a life of ascetic self-mortification, such as the Life of Pelagia the Harlot
or the Life of Mary of Egypt that circulated in sixth-century Constanti-
nople.91 For a monastic audience these stories forcefully drove home the
concept of perpetual sinful state of the ascetic, which required perpetual
penance.92 Consequently, in Byzantine monastic discourse monks and nuns
were considered to be in perpetual metanoia.93 The Council of Trullo in
692 c.e. underlines this understanding of monasticism by literally stating
that the monastic life was one §n metano¤&.94 The idea has also influenced
89. D. Amand, L’ascèse monastique de Saint Basile: Essai historique (Denée:

Éditions de Maredsous, 1949), 176–77; Rousseau, Basil, 200–201, 218; see, for
example his Shorter Rule 10 (PG 31:1088): “First [the soul] should hate its repre-
hensible former life, and find disgusting and detest its memory” (Pr«ton m¢n Ùfe¤lei
mis∞sai tÚn kategnvsm°non •aut∞w prÒteron b¤on ka‹ tØn mnÆmhn aÈtØn sikxa¤nousa
ka‹ bdelussom°nh); see also Shorter Rules 5.11, 12, 289, 297 (PG 31:1086, 1089,
1285, 1292).
90. See the story of Antony’s conversion upon hearing the passage from Acts 4.35
read in church: Athanasius, Life of Antony 2 (PG 26:841–844) and the treatise on
repentance apparently dedicated to monastic novices in Epistula Antonii 1 (tr. D.
Chitty, The Letters of Antony [Oxford: S.L.G. Press, 1975], 1–5), which may have
been his own; on this see S. Rubenson, The Letters of St. Antony: Origenist Theol-
ogy, Monastic Tradition and the Making of a Saint (Lund: Lund University Press,
1990), 85–86.
91. See B. Ward, Harlots of the Desert (London and Oxford: Mowbray, 1987),
26–75.
92. Ward, Harlots, 33; E. Patlagean, “L’histoire de la femme déguisée en moine
et l’évolution de la sainteté féminine à Byzance,” in E. Patlagean, Structure sociale,
famille, chrétienté à Byzance (London: Variorum Reprints, 1981), 622–23.
93. J. Hörmann, Untersuchungen zur griechischen Laienbeichte (Donauwörth: L.
Auer, 1913), 77–79; B. Ward, The Sayings of the Desert Fathers (London: Mowbrays,
1975), xvi–xvii; Goria, “La Nov. 134,10; 12,” 64 n. 23.
94. Council in Trullo, can. 43 (ed. and trans. G. Nedungatt and M. Featherstone,
The Council in Trullo Revisited [Rome: Pontificio Istituto Orientale, 1995], 125); see
also Thesaurus Graecae Linguae 5 (Paris: Ambrosius Firmin Didot, 1842–46), 881,
for later attestations of this term, e.g., Symeon of Thessalonica (d. 1429) counts the
monks simply as “penitents” (metanoountes).
(probably via the Rufinus translation of Basil’s rules) the rule of Benedict
in the sixth-century west.95 In certain respects, therefore, Justinian’s and
Theodora’s choice of metanoia as a name for a monastery could even be
called conventional.96
Less conventional, perhaps, was their belief that criminals could benefit
from their involuntary membership in a monastic community. To be sure,
late antique Christian authorities, especially when discussing the death
penalty, pointed at the reformatory function of punishment. Ambrose, for
example, stated that the death penalty should be discarded as it foreclosed
upon any hope of repentance and improvement.97 In two of the laws pre-
scribing monastic imprisonment for clerics, it is clearly spelled out that
Justinian took on board this idea of punishment as reform. In the case of
gambling clerics, the period in the monastery is explicitly described as a
period of penance (metãnoia). The bishop was to check on the success of
this penance and after three years, or even earlier, the cleric was to return
to his office.98 In the case of deposed bishops trying to return to their sees,
they were placed in monasteries in order to “correct” (dioryÒein) their
crimes committed while holding office.99
In the case of clerics, there is evidence that Justinian was not the first to
apply monastic imprisonment as a form of penance. Only a few decades
before Justinian’s legislation, the council of Agde in 506 c.e. declared that if
a bishop, priest, or deacon committed a capital crime, forged a document,
or gave false testimony, he should be deposed and sent to a monastery.
The council of Epaone in 517 c.e. classed the giving of false testimony as
a capital crime and declared that presbyters and deacons who committed
a capital crime should be sent to a monastery for life. In fact, the use of
95. Rule of Benedict 49 (SC 181:605): omni tempore vita monachi quadragesimae
debet observationem habere.
96. In fact, we know of another eastern monastery which featured this name. As
early as the beginning of the fifth century, Jerome reported a monastery called Meta-
noia in Alexandria, which continued to exist in the sixth. Jerome, Reg. S. Pachomii,
praef. (PL 23:65); the monastery is also mentioned in sixth-century papyri (P. Cair.
Maspero 67.286; P. Flor. 298.54).
97. Ambrose, ep. 25.8 (CSEL 82/1:176); see also Aug. serm. 13.8 (CC 41:182);
ep. 100.1 (CSEL 34/2:535); on Christian ideas of punishment and their influence on
secular legislation in late antiquity see J. Harries, Law and Empire in Late Antiquity
(Cambridge: Cambridge University Press, 1999), 146.
98. Nov 123.10.1 (CIC 3.603): efi d¢ §n t“ m°sƒ xrÒnƒ de¤jei éj¤an toË fid¤ou
pta¤smatow metãnoian, êdeian e‰nai t“ flere› ÍfÉ˘n t°taktai ka‹ §lattoËn tÚn xrÒnon
ka‹ toËton pãlin tª fid¤& épodidÒnai Íphres¤&.
99. Nov 123.11.2 (546) (CIC 3.604): (…) ·na ëper §n tª flervsÊn˙ ¥marte diãgvn
§n t“ monasthr¤ƒ diory≈shtai.
monasteries for imprisonment of failing clerics and monks seems to have

been an established practice.100 Thus it is also the case that in ecclesiastical
legislation the monastery was considered the perfect place of penance.101
In certain respects, therefore, Justinian’s choice of the monastery as a
place of punitive imprisonment for clerics has a clear precedent in eccle-
siastical law, although it is uncertain to what extent Justinian would have
known about this legislation, given that it originated primarily from Gaul
and thus from outside Justinian’s empire.102 This is not the case for the
groups of lay people for whom Justinian envisaged monastic imprisonment.
To be precise, some Christian writers as early as the fifth century recom-
mended the replacement of lay public penance with leading a religious life
within a monastery. However, before Justinian this never entered ecclesi-
astical legislation.103 It is therefore in his laws on the monastic imprison-
ment of lay people where Justinian was truly innovative.
Contrary to the laws on clerical behavior, the laws that prescribe
monastic imprisonment for lay people do not directly speak about pen-
ance. Yet we know from Procopius and his intriguing counter-narrative
of the Justinianic Age, the Secret History, that Theodora was particularly
interested in devising punishments “for sins against the body” committed
by lay people.104 The first example he gives for the imperial view of “sins
against the body” is prostitution, for which Theodora prescribed monastic
penance. He then goes on to tell us how Theodora persecuted two aris-
100. Agde (506 c.e.) can. 50 (CCL 148); Epaone (517 c.e.) can. 22 (SC 353:112).
The vita of Innocent in the Liber pontificalis mentions that this Roman bishop sent
heretics to monasteries, see R. Davis, The Book of Pontiffs (Liverpool: Liverpool Uni-
versity Press, 1989), 31; and see Jerome, ep. 147 (CSEL 56:312–28), where Jerome
advises a failing deacon to do penance in a monastery.
101. For the equation of monastic state and penitential status in sixth-century
western canonical legislation see M. De Jong, “Power and Humility in Carolingian
Society: The Public Penance of Lois the Pious,” Early Medieval Europe 1 (1992): 43,
and De Jong, “What Was Public,” 871.
102. There is also a considerable difference between the ecclesiastical and Justinian’s
view on the function of this penance: in the canons, clerics were deposed and sent to
the monastery for life, while Justinian envisaged their return to the ministry. On the
features of ecclesiastical penance see B. Poschmann, Die abendländische Kirchenbusse
im Ausgang des christlichen Altertums (Munich: Kösel und Pustet, 1928), 172–203;
R. Mortimer, The Origins of Private Penance in the Western Church, (Oxford: Clar-
endon 1939), 155; J. Gaudemet, L’Eglise dans l’empire romain (IV–V siècle) (Paris:
Sirey, 1958), 85, 679–81; De Jong, “What Was Public,” 873.
103. Gennadius of Marseille, On Ecclesiastical Doctrine 53 (PL 58:994); see Mor-
timer, The Origins, 167; De Jong, “What Was Public,” 871.
104. Procopius, Secret History 17.5 (LCL 290:199): ÉAllå ka‹ Íp¢r èmartãdvn §w
tÚ s«ma kolãseiw tª Yeod≈ra §pinoe›n §pimel¢w ∑n (…)
tocratic widows for refusing to remarry and for living “unchaste lives.”
Theodora ultimately forced them to marry although they had fled to the
Church of St. Sophia.105 This anxiety about sexually immoral behavior
after marriage recalls the preamble of Nov 117.13 (542) (CIC 3.562–64)
on monastic imprisonment for divorcees, which linked the legislation to
certain women who were pursuing divorce in order to live “debauched
lives.”106 There is reason to believe, therefore, that the imperial couple’s
interest in policing prostitution, as well as unchaste behavior within and
after marriage, with the prescription of monastic penance reflects their
belief that all were expressions of sexual promiscuity.
This catalogue of adultery, divorce, and prostitution, for which Justinian
envisaged monastic penance, suggests that, for the emperor, sexual promis-
cuity encompassed a broader spectrum of sins than contemporary church
legislation envisaged. Adultery, of course, was among the most notorious
Christian sins against the body, for which church authorities, at least from
the fourth century on, had regularly prescribed penance.107 Yet, although
adultery and prostitution had long been associated with one another in
Roman public discourse, as both shared the same stigma of sexual prom
iscuity,108 prostitution does not seem to have constituted a specific sin
against the body in early ecclesiastical legislation, and consequently there
are no specific periods of penance prescribed in the early church canons
for prostitution.109 This perhaps recalls the principle of Roman law that a
(registered) prostitute, while being sexually promiscuous, nonetheless did
105. Secret History 17.5–15 (LCL 290:198–202).

106. See above n. 32.
107. On ecclesiastical prescriptions on penance, which differed in length and pro-
cedure from region to region, to redeem adultery see Evans Grubbs, Law and Fam-
ily, 221–25.
108. T. McGinn, “The Legal Definition of the Prostitute in Late Antiquity,” Mem-
oirs of the American Academy in Rome 42 (1997): 114–15; T. McGinn, Prostitution,
Sexuality, and the Law in Ancient Rome (New York, Oxford: Oxford University Press,
1998), 156–71. Nov 134.10 (556 c.e.) (CIC 3.685–86) also prescribed poinai that
were to precede the monastic imprisonment, which may refer to the clothing of the
adulteress in the prostitute’s toga, which the lex Iulia de adulteriis had prescribed as
an act of public humiliation; see Goria, “La Nov. 134,10; 12,” 74; McGinn, Pros-
titution, 171.
109. For a summary of the early church’s attitude towards prostitution see V. L.
Bullough, “The Prostitute in the Middle Ages,” Studies in Medieval Culture 10 (1977):
9–17. See also J. Glancy, Slavery in Early Christianity (Oxford: Oxford University
Press, 2002), 64–65, for the Pauline view on prostitution in 1 Cor 6.12–20, which
displays a lack of interest in the salvation of the prostitute.
not commit a crime.110 To be sure, stories like the above-mentioned Life

of Pelagia the Harlot or the Life of Mary of Egypt thrived on the image
of the repentant prostitute. However, as we have seen, rather than being a
promise of salvation specifically for prostitutes, this image may have had a
symbolic function to remind ascetics of their status as perpetual sinners.111
Arguably, the church accepted prostitution as a social phenomenon, or,
as Augustine would put it, a necessary evil.112 Likewise, the church did
not, as apparently Justinian did, see the act of divorce as a sin of the body
for which one should perform penance. The church, of course, in prin-
ciple rejected divorce, but periods of penance were not prescribed for the
act of divorce, only for remarriage after divorce, as this was equated to
adultery.113 For Justinian, however, it was already at the time of divorce
when a sin was committed, as the preamble of Nov 117.13 (542) shows.
Divorce was prohibited and monastic penance prescribed according to the
logic that the act of divorce reflected and facilitated a desire to be sexually
promiscuous. With his classification of divorce and prostitution as sins
similar to adultery, which could be redeemed through a similar penance,
the emperor arguably displayed a more nuanced understanding of pen-
ance as a tool for social change than contemporary church legislation.114
110. A relationship with a married woman could be legally charged (as adulterium),
while intercourse with a prostitute could not: Rousselle, Porneia, 84–85.
111. For a different reading of these stories that, nonetheless, also rejects their
relevance for the social context of late Roman prostitution, see P. Cox Miller, “Is
There a Harlot in This Text? Hagiography and the Grotesque,” Journal of Medieval
and Early Modern Studies 33 (2003): 419–35, who argues that the texts even fail to
construct true sanctity of Pelagia and Mary, as ultimately they cannot rid themselves
of the stigma of female sexuality.
112. Augustine, De ordine 2.4.12 (PL 32:1000).
113. G. H. Joyce, Christian Marriage: An Historical and Doctrinal Study (Lon-
don and New York: Sheed and Ward, 1933), 309–328; Evans Grubbs, Law and
Family, 242–53. The prohibition of divorce, and the equation of remarriage after
divorce with adultery, was laid down in Scripture, see Paul 1 Cor 7; Mark 10.2–12;
Luke 16.18. For prescriptions of penance after remarriage see, e.g., Elvira (306 c.e.)
can. 8–11 (J. Vives, Concilios Visigóticos e Hispano-Romanos [Barcelona, Madrid:
Consejo Superior de Investigaciones Cientificas, Instituto Eurique Flórez, 1963], 4);
H. Crouzel, L’Église primitive face au divorce: du premier au cinquième siècle (Paris:
Beauchesne, 1971), 116–21.
114. However, there was in Justinian’s thinking, although he was probably the
most advanced secular legislator on Christian marriage, still no assertion that mar-
riage was a sacrament that could not be broken; see J. T. Noonan, “Novel 22,” in
The Bond of Marriage, ed. W. W. Bassett (Notre Dame, IN: The University of Notre
Dame Press, 1968), 58, 68, 89. Justinian’s laws on monastic imprisonment for adul-
tery and divorce opened up the possibility for the innocent party to get remarried, as
in earlier legislation (CI 1.3.52.15 (531 c.e.) [CIC 2.36]; Nov 22.5 (536 c.e.) [CIC
Significantly, however, it was only for adulteresses and divorcees that pen-
ance became a legally prescribed punishment, while the penance of pros-
titutes only made it into imperial practice, but not into imperial law. This
shows that, for Justinian, in the same way as it had done for Augustus, it
was the manipulation of the sexual behavior of the aristocratic elite that
mostly mattered from a legal point of view.
There is another, perhaps even more crucial, difference between Justin-
ian’s understanding of the nature and purpose of monastic penance and
traditional penitential practices of the church. The penance Justinian envis-
aged was not a voluntary decision, but a coercive measure established by
a secular court. To be sure, bishops under Justinian retained jurisdiction
over clerics (and lay persons) in purely spiritual matters and in questions
of Christian discipline, but had lost their authority to judge clerics and
ascetics involved in criminal cases to the secular court, although they often
acted as associate judges.115 Some of Justinian’s constitutions established
as public crimes actions which had hitherto been considered only viola-
tions against church discipline, such as gambling by clerics. The emperor
now assigned the authority to decide on their punishment to the secular
court. The punishment that an ecclesiastical court would have prescribed
would probably not have been penance, but excommunication or, in the
case of clerics, deposition, while the possibility to undergo penance would
have been offered on a voluntary basis.116
The uneasiness with which this blurred boundary between penance
and secular punishment was viewed becomes apparent in Procopius’s two
descriptions of Justinian’s and Theodora’s enterprise to rescue prostitutes
3.150]) he had enumerated monastic profession of one party as one of the legitimate
reasons for divorce and remarriage. Ecclesiastical legislation of course was very reluc-
tant to allow remarriage of the innocent party in a divorce, even in the case of adul-
tery (see, for example, Elvira (306 c.e.) can. 9, can. 10 [Vives, Concilios Visigóticos
e Hispano-Romanos, 4]), and condemned remarriage even if one partner had entered
monastic life (Basil, Moralia, Rule 73.1 [PG 31:849–51]).
115. H. Jaeger, “Justinien et l’episcopalis audientia,” Revue d’histoire du droit
française et étranger 38 (1960): 214–62. For the audientia episcopalis in late antiquity
in general see, for example, G. Vismara, “La giurisdizione civile dei vescovi,” in La
giustizia nell’alto medioevo (secoli V–VIII), Settimane di studio 42 (Spoleto: Centro
italiano di studi sull’alto medioevo, 1995), 225–51.
116. For this difference between penance and punishment and their increasingly
blurred boundaries in the early Middle Ages see R. Kottje, “Buße oder Strafe?,” La
giustizia nell’alto medioevo, Settimane di studio 42 (Spoleto: Centro italiano di studi
sull’alto medioevo, 1995), 445–46. For the understanding of penance as a voluntary
measure especially in the Byzantine east see J. Meyendorff, Byzantine Theology: His-
torical Trends and Doctrinal Themes (London: Mowbrays, 1975), 196.
through monastic imprisonment in Buildings and in the Secret History.117

In the Secret History, the monastery set up for the former prostitutes is
transformed from the place of refuge described in Buildings into a prison,
their inmates from voluntary penitents into jailbirds longing for freedom,
and the reason for their stay from a way to gain salvation through penance
to punishment for an immoral lifestyle. The contradictions between the
two passages in the Buildings and in the Secret History about the success
of this penance perhaps indicates Procopius’s deliberate exploitation of
a general confusion, in view of the rising interference of the secular gov-
ernment in church legislation, about the nature of penance as a voluntary
measure or a secular punishment.
Conclusion
There are a number of reasons for the absence of the prison sentence from
the catalogue of penalties in Roman criminal law. Scholars have pointed at
the Roman understanding of the functions of punishment. Prime motives
seem to have been retribution and deterrence, and as such, punishment
had to be of a highly public and dramatic nature for it to effect the loss of
honor.118 This concept of punishment as humiliating terror that ensured
obedience continued into late antiquity and was to some extent shared
by Christian authorities.119
Yet there might have also been more practical considerations at play than
simply a lack of understanding punishment as an opportunity to reform.
There is no denial—a fact sometimes painfully felt by modern govern-
ments—that the administration of the prison sentence is a time- and cost-
117. Procopius, Secret History 17.5–6 (LCL 290:198): pÒrnaw ém°lei pl°on µ
pentakos¤aw ége¤rasa §n égorò m°s˙ §w tri≈bolon, ˜son époz∞n misyarnoÊsaw, ßw
te tØn éntip°raw µpeiron ste¤lasa §n t“ kaloum°nƒ Metano¤a monasthr¤ƒ kaye›rje
tÚn b¤on metamfi°sasyai énagkãzousa. œn dÆ tinew §rr¤ptoun aÈtåw éfÉÍchloË nÊk-
tvr, taÊt˙ te t∞w ékous¤ou metabol∞w éphllãssonto. “Harlots, for instance, to the
number of more than five hundred who plied their trade in the midst of the market
place at the rate of three obols—just enough to live on—she gathered together, and
sending them over to the opposite mainland she confined them in the Convent of
Repentance, as it is called, trying there to compel them to adopt a new manner of life.
And some of them threw themselves down from a height at night and thus escaped
the unwelcome transformation.”
118. On this understanding of Roman punishment, see Harries, Law and Empire,
136.
119. See Augustine who teaches that fear can be beneficial, e.g., Enarrationes in
psalmos 118.31.3 (CCL 40:1771) about fear as a positive emotion in the family; Har-
ries, Law and Empire, 144–45.
consuming business. It requires the maintenance of buildings, the provision

of facilities, such as food, water, heat, health services or even education,
to keep the prisoner alive and sane, and the employment of staff, who
not only guards and disciplines (and in the case of life imprisonment, for
a substantial amount of time), but also, in the case of short-term impris-
onment, assesses the prisoner’s improvement. Such an enterprise, which
requires significant active engagement and forward-planning organization
by the government, seems to have been alien to Roman society or even to
pre-industrial society in general.120
This peculiarly pragmatic attitude to the administration of punishment
may have hindered the development of corrective imprisonment. Even
where we witness a penalty such as exile that, at least under the aspect
of restriction of freedom, was conceptually close to a prison sentence, it
was usually organized in a way that exploited pre-existing institutions or
contexts for government purposes, that is islands or private households.
Due to government reliance on existing institutions to perform the admin-
istration of punishment, there was no scope to develop functions of pun-
ishment beyond deterrence and loss of honor.
Justinian’s use of monastic communities for punitive internment to some
extent can be seen as a continuation of this pragmatic attitude, as he clearly
inherited the tradition of using pre-existing institutions for government
purposes. In fact, he may have chosen monasteries for imprisonment in
light of their commitment to a Christian ideal of hospitality and because
of his own imperial control over them. In these respects, he may have seen
them more readily equipped to perform this duty than private households,
to which previous emperors had turned for a substitute to exile.
Yet it has been shown that Justinian chose monasteries for imprison-
ment not just out of a sense of pragmatism. For the emperor, monaster-
ies represented an ideal context for his ideas of punishment as penance
that a lay household could not deliver. We certainly can presume that in
the late antique practice of public penance as it emerges from ecclesias-
tical canons, confessed sinners were supposed to perform their penance
between their enrollment in the official group of penitents and the act of
reconciliation with the community, such as abstinence, prayer, and fast-
ing, at home.121 In fact, this is clearly stated for example in a canon of the
120. M. Foucault, Surveiller et punir: La naissance de la prison (Paris: Gallimard,

1975).
121. On public penance in late antiquity see M. De Jong, “Transformations of
Penance,” in Rituals of Power: From Late Antiquity to the Early Middle Ages, ed.
F. Theuws, J. L. Nelson (Leiden: Brill, 2000), 185–224.
council of Toledo (397/400), which prescribed clerics to guard their adul-

terous wives at home during their penance and force them to fast. Yet the
household was not organized according to a set of codified monastic rules
which structured daily routines. Moreover, the constant company, which
in Justinian’s mind ensured the penitential focus of the community, fur-
ther distinguished even the most pious household from the monastery.122
Because of the monastic community’s inherent feature of control of the
expiation of sin, therefore, the use of this pre-existing institution for the
first time allowed Justinian to introduce the idea of punishment as reform
to imperial legislation.
Ecclesiastical legislation had long recognized the monastery as a con-
venient way to reform wayward clergy, and it is not unthinkable that
Justinian’s legislation built on this precedent. Justinian, however, seems
to have been the first to prescribe formally this form of penance for lay
people. Yet only a few decades later, we also encounter the concept of
using monasteries as a form of “exile” for lay people in the early Medi-
eval west, when in 576 c.e. the Merovingian king Chilperic sent his son
Merovech to St. Calais.123 By the early ninth century, monastic exile for
lay people was regularly described as penance. The Carolingian dynasty
had a very well-developed royal ideology of correction, where the king
was responsible for the morality in the public domain and the model of
monastic penance served as main instrument for cleansing.124
Scholars have typically claimed that this use of penance as a coercive
punishment by secular rulers dates no earlier than the seventh century,
as at first there was nothing intrinsically penitential about the practice of
sending lay people to monasteries as a form of punishment.125 Yet the Jus-
tinianic laws show that the concept of penance as a secular penalty existed
before the seventh century, and, as under the Carolingians, targeted mainly
the lay aristocracy. Although Justinian’s legislation originated from and
was directed at a specific context, the sexual behavior of his urban elite,
in the long term it may have had, therefore, wide-reaching and remark-
able consequences. Yet as with all legal evidence, it is difficult to measure
how influential Justinian’s innovations ultimately were. Even in the later
Byzantine Empire, Justinian’s laws, while widely admired, seem to have
underpinned legal practice only to a certain degree. Discussions of their
122. Rousseau, “The Pious Household,” 166.

123. Gregory of Tours, Decem libri Historiarum 2.41 (MGH, SRM 1.91).
124. De Jong, “What Was Public,” 901–902.
125. De Jong, “What Was Public,” 901–902; S. Hamilton, The Practice of Pen-
ance, 900–1500 (London: Royal Historical Society, 2001), 1–2.
accessibility in Byzantine legal literature show that their practical use was
limited, especially in the provinces.126 However, we do know of frequent
use of monasteries in Constantinople and its suburbs as prisons in Byz-
antine history. In the early seventh century, thus only a few decades after
Justinian’s death, the wife and daughter of the emperor Maurice were
imprisoned by his successor Phokas in a monastery called Nea Metanoia.127
Perhaps under the influence of Justinian’s legislation, therefore, a monas-
tery publicly labelled as a place of penance was used for confinement of
non-monastic people. Further incidents happened in the middle Byzantine
period (eighth to tenth centuries). The prisoners concerned were, almost
without exception, members of the aristocracy or the imperial family.128 If
we accept that these penalties were implemented on the basis of Justinian’s
legislation, we may witness further proof that his laws were designed to
target the urban elite, and not the general public.
Julia Hillner is a British Academy Postdoctoral Research Fellow at

Manchester University
126. R. Morris, “Dispute Settlement in the Byzantine Provinces in the Tenth Cen-
tury,” in The Settlement of Disputes in Early Medieval Europe, ed. W. Davis and P.
Fouracre (Cambridge: Cambridge University Press, 1992), 126–27.
127. T. Preger, Scriptores originum Constantinopolitanarum 3 (Leipzig: Teubner,
1907), 274.
128. J. Hussey, “Byzantine Monasticism,” Cambridge Medieval History 4, 2nd ed.
(Cambridge: Cambridge University Press, 1966), 182. See examples in Goria, “La Nov.
134, 10; 12,” 73; A. M. Talbot, “Late Byzantine Nuns: By Choice or Necessity?,”
Byzantinische Forschungen 9 (1985): 112; C. L. Connor, Women of Byzantium (New
Haven/London: Yale University Press, 2004), 172.

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Monastic Imprisonment in Justinian's Novels

Journal of Early Christian Studies, Volume 15, Number 2, Summer

Published by The Johns Hopkins University Press

For additional information about this article

Access Provided by Universitaetsbibliothek Marburg at 07/24/10 8:06PM GMT

The reign of the Roman emperor Justinian (527–565 c.e.) witnessed

1. Th. Mommsen, Römisches Strafrecht (Leipzig: Duncker und Humblot, 1899),

After an introduction to the legislation in question, I will compare the

Justinian’s legislative work is probably one of the best known achieve-

like Justinian ideally conceived sociological reality; on similar methodological problems

Justin, the holy man Sergius was imprisoned in a Chalcedonian monastery

8. John of Ephesus, Lives of the Eastern Saints, 17 (PO 17:104–5); J. A. S. Evans,

imprisonment, and return to ministry after a certain period of time. Jus-

To show that Justinian’s interest, in this respect, was in elite behavior

13. Mommsen, Strafrecht, 967–69.

partner in the marriage was charged with or convicted of certain crimes.18

Tiberius’s initiative the senate pronounced a death sentence for Asinius

monastic imprisonment were meant to manipulate the behavior of upper

28. S. Dixon, The Roman Family (Baltimore/London: Johns Hopkins University

The preamble of Nov 134.11 (556 c.e.) (CIC 3.686–87), on divorce by

33. ÉEpeidØ d° tinew tÚn ≤m°teron nÒmon paraba¤nen spoudãzousin (…).

of the ­married couples among the aristocratic families of Constantinople: Procopius,

The administration of exile in insulam certainly presented difficulties. For

Monastic Imprisonment as Enforced Hospitality

“foreigner,”53 who could expect to be welcomed in a private household.

regulated system of quartering in private households, called the metatorum praeben-

distinction of class, citizenship, or gender, and that placed a particular

58. D. J. Constantelos, Byzantine Philantrophy and Social Welfare (New Brunswick,

hospitality was really supposed to be applied to any stranger, let alone a

Companion to the Age of Justinian, ed. M. Maas (Cambridge: Cambridge University

monastic matters was often only theoretical.75 In Constantinople, in turn,

75. Rousseau, “Monasticism,” 758.

Monastic Imprisonment and the Ideal of Correction

78. Procopius, Buildings 1.9.1–10 (LCL 343:74).

on adultery and divorce. It is reasonable to assume that, for the execution

The perception of the monastery as a place of penance, which clearly

89. D. Amand, L’ascèse monastique de Saint Basile: Essai historique (Denée:

monasteries for imprisonment of failing clerics and monks seems to have

105. Secret History 17.5–15 (LCL 290:198–202).

not commit a crime.110 To be sure, stories like the above-mentioned Life

through monastic imprisonment in Buildings and in the Secret History.117

consuming business. It requires the maintenance of buildings, the provision

120. M. Foucault, Surveiller et punir: La naissance de la prison (Paris: Gallimard,

council of Toledo (397/400), which prescribed clerics to guard their adul-

122. Rousseau, “The Pious Household,” 166.

Julia Hillner is a British Academy Postdoctoral Research Fellow at

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