Posted by: ken98 | September 1, 2011

Gay Day for Gibbon and More Roman Civil Law

Day 718 – Ken here (Th)(9-1-2011)
(DEF II, v.4, Ch.44, pp.830-840)(pages read: 1890)

Gay Day

No, not this kind Gay Day (at Disneyland), which is a day of smiles and brotherly and sisterly love - but a Gibbonian Gay Day which tends more towards the vomitous hatred side of the spectrum - photo from the "Unofficial" Disneyland (Anahiem) Gay Day Oct 6 2002

Although, judging from his rhetoric, Gibbon had nothing but derision, scorn, and loathing for all things gay, actually his language is on a par with the bitter, constant war Gibbon waged in his Decline and Fall against monks, monasteries, and the people that believed in them. So maybe, its not at all that unusual.

I’ve noticed Gibbon becomes less and less vitriolic the deeper we go into his volumes – maybe concerns about declining subscription revenues forced him to tone it down a bit. Well, until today.

In this section, nevertheless, he twists the knob to 11 and revs up all his cutting, satirical engines for a hard day’s work of gay-bashing. Which, however, is not unexpected, coming from a Gentleman of the English Persuasion in the Late 1700’s. Heaven knows how all this would have played out in BOSTON MA back then – probably (no, assuredly) you would not get Gibbon’s opinions of “Unnatural Lust” even mentioned in colonial print.

Gibbon rants for 3 pages – the most interesting and telling anti-gay sections (tortures and punishments, the 2 bishops from Rhodes and Diospolis) are without references or footnotes, which is not usual for Gibbon (I had to go look them up myself). I can’t help thinking that some “Public School” episode of his youth lies at the heard of all this rabid spewing.

As you will see, I do a little ranting and frothing of my own – my apologies in advance – but I was actually taken aback at the wild righteous indignation permeating his whole discussion of homosexuality – a little like being pounced upon by a puma in the dark – unexpected and injurious.

Anyways… on to the next-to-the-last day of Roman Civil Law – a day of ACTIONS, and CIVIL and CRIMINAL LAW

(by the way – the University of Wyoming – who knew? has an online annotated version of Justinian’s Code here free to use) – for those long fall/winter nights coming up)

The Story
Justinian’s Code-Institutes-Actions-INJURIES
  • We continue with Gibbon’s PERSONAL organization of the Actions available under Roman Law – you’ll never see this organization again – I’m sure its fascinating as a revelation of how Gibbon’s mind works to a historian of the Actual Institutes of Justinian in the CODE, but his reorganization is beyond me (not being an ancient Roman lawyer)
  • Bailment (holding someone else’s property for them), Theft, Malice, Negligence – made whole by penalty – sometimes multiples of the amount lost
  • Personal Injury – made whole by fine
  • Absurdity in later Republic – costs 25 copper pieces (Asses) for a fine of hitting a citizen – no other reparation available, a rich citizen (Veratius – from story of Aelius Gellius – Attic Nights) went around slapping people on the face, and had a servant of his following him, paying the 25 copper coins as he slapped his way through the crowd

    Justinian’s Code-Institutes-Civil,Criminal Law-INTRO
  • IN Roman law, both criminal and civil suits are taken up by the Code – unlike U.S./Engl where civil law is made by judges and juries by PRECEDENT
  • 1st, 12 Tables – ancient law – an eye for an eye- a severe code
  • Death Penalty for all kinds of offenses
  • Bankruptcy (insolvent debtors) meant being put to death or exiled
  • No Penal Laws – ie the state would not prosecute, private citizens had to prosecute – at first

    Justinian’s Code-Institutes-Civil,Criminal Law-HOMOSEXUALITY
  • Gibbon goes into great detail about the law, as do I – see below


    Rabid Spewing in the vegetable kingdom

    What Gibbon and I Are Doing Today


    Gibbons on Homosexuality – Rabid Spewing


    The Episode of Isaiah of Rhodes and Alexander of Diospolis

    Here is Gibbon’s treatment:

    But the same emperor declared himself the implacable enemy of unmanly lust, and the cruelty of his persecution can scarcely be excused by the purity of his motives. In defiance of every principle of justice, he stretched to past as well as future offences the operations of his edicts, with the previous allowance of a short respite for confession and pardon.

    A painful death was inflicted by the amputation of the sinful instrument, or the insertion of sharp reeds into the pores and tubes of most exquisite sensibility; and Justinian defended the propriety of the execution, since the criminals would have lost their hands, had they been convicted of sacrilege.

    In this state of disgrace and agony, two bishops, Isaiah of Rhodes and Alexander of Diospolis, were dragged through the streets of Constantinople, while their brethren were admonished, by the voice of a crier, to observe this awful lesson, and not to pollute the sanctity of their character.

    Perhaps these prelates were innocent. A sentence of death and infamy was often founded on the slight and suspicious evidence of a child or a servant: the guilt of the green faction, of the rich, and of the enemies of Theodora, was presumed by the judges, and paederasty became the crime of those to whom no crime could be imputed.

    A French philosopher {Montesquiue} has dared to remark that whatever is secret must be doubtful, and that our natural horror of vice may be abused as an engine of tyranny. But the favorable persuasion of the same writer, that a legislator may confide in the taste and reason of mankind, is impeached by the unwelcome discovery of the antiquity and extent of the disease.

    (DEF II, Vol.4, Ch.44, p.839)

    You think at first the two bishops were lovers, but the text in Malalas (below) makes it clear that it was pederasty that was the object of the punishments. Isaiah was the chief of the night watch (praefectus vigilum – a kind of policeman), and Alexander was from an important border city in Thrace, Diospolis (modern name of the location – Kabile – ironically the Roman city was to be obliterated permanently by a sack of the invading Avars in the 580’s, just 30 years or so in the future, erasing the bishopric with all the members of the parish). Perhaps this was all politically motivated, and as Gibbon mentions, in his brief pause between incoherent mouth-frothings, that one of the easier political sins to use to remove an unwelcome person was an accusation of pederasty. This was also during the period of Bubonic Plague (1st Great Plague – 540’s), so reasonable examination of the facts and circumstances surrounding a case was probably pretty non-existent and emotions and tension were out of control.

    From John Malalas – a Greek chronicler (491-578) Note: from Wiki (adapted from the 1911 Encyclopedia Britannica)

    The eighteenth book, dealing with Justinian’s reign, is well acquainted with, and colored by, official propaganda.

    From an online text of John Malalas – from his 18th book.

    Book 18: #18

    AD 528

    In that year some of the bishops from various provinces were accused of living immorally in matters of the flesh and of homosexual practices. Amongst them was Isaiah, bishop of Rhodes, an ex praefectus vigilium at Constantinople, and likewaise the bishop from Diospolis, in Thrace named Alexander. In accordance with a sacred ordinance they were brought to Constantinople and were examined and condemned by Victor the city prefect, who punished them: he tortured Isaiah severely and exiled him and he amputated Alexander’s genitals and paraded him around on a litter. The emperor [sc. Justinian I] immediately decreed that those detected in pederasty should have their genitals amputated. At that time many homosexuals were arrested and dies after having their genitals amputated. From then on there was fear amongst those afflicted with homosexual lust.

    (see Fordham)


    The Wrong City - photo of Diospolis of Judaea (in Israel) - one of the many towns named Diospolis (for various reasons) of the Roman Empire, now the modern day City of Lod in Israel - which is also the modern site of Ben Gurion International Airport, pictured above

    A long Aside…
    On the Vicissitudes of Historical Research
    – OR –
    Helpless Reference Tracking

    Diospolis, by the way, is Dios (Zeus, or God) + Polis (city) – the city of Lod (Lydda, Diospolis, later, Georgiopolis – after St George, his birthplace) – a city founded in 5500 BCE, listed in 1465 BCE by the pharoah Thutmose III at Karnak as a Canaanite town, conquered by the Maccabees, part of both the First Jewish War (70 CE – the sacking of the Temple & Titus) and the Second Jewish War (130 CE – a massacre occurring there, memorialized in the Talmudic phrase – “the slain of Lydda”), briefly a capital during the initial Muslim conquests, a fascination for the Latin Crusaders (who made it a See, for St. George), and now the site of Ben Gurion International Airport.

    Diospolis, by the way, is Dios (Zeus, or God) + Polis (city) – the city of Lod (Lydda, Diospolis, later, Georgiopolis – after St George, his birthplace) – a city founded in 5500 BCE, listed in 1465 BCE by the pharoah Thutmose III at Karnak as a Canaanite town, conquered by the Maccabees, part of both the First Jewish War (70 CE – the sacking of the Temple & Titus) and the Second Jewish War (130 CE – a massacre occurring there, memorialized in the Talmudic phrase – “the slain of Lydda”), briefly a capital during the initial Muslim conquests, a fascination for the Latin Crusaders (who made it a See, for St. George), and now the site of Ben Gurion International Airport.

    Then I thought I’d better look up the exact quote, just to be sure.

    Alexander's Diospolis in Thrace

    The Real McCOy - this is Alexander's Diospolis (or near it at least) - Ironically, within a generation of Justinian's humiliation of Bishop Alexander, Diospolis in Thrace was sacked by the Avars, ruined and never rebuilt. Aerial photo by Chavdar Stoichev of Cabyle or Kabile now in Bulgaria, ancient Diospolis of Thrace

    This is NOT the Diospolis that Alexander was from. I started out working from Gibbon’s reference which only said Alexander of Diospolis, (found some cities, threw out the Egyptian ones, and fastened on the Israeli one). Later, finding the quotation from Malalas, I obviously saw it was not in Israel, but Turkey, or another Balkan or near-Balkan site (it turns out its Bulgarian). Back to searching… Then I found an archeological site that associated Diospolis with the town of Cabyle (a corruption of a Thracian translation of Zeus-City)

    The name of the habitat originates from Cybela (according to Velkov 1982: 14). A later toponym of the habitat is Dampolis/Diampolis as a corruption of Diospolis (Velkov 1977: 130-131). Fol, 1994: 219-224 states the hypothesis that Diospolis, i. e., “Zeus’s city”, is a translation-description of the honoring of a supreme male god, most likely Sabasius. Partially, the reason for this hypothesis is the possible etymology Kab-/Sab- in the root of Cabyle’s name.

    Modern day Kabile is a tiny village, near the larger town of Yambol where apparently most people from Kabile work. Once the center of Iron Age Thracian royalty, it later figured in the plans of Alexander the Great’s family from down south in Macedon, and became in Roman times a sizable city for Roman Thrace, with a bishop’s seat. That same bishopric had a bishop in the 540’s, during the Great Plague years in Constantinople who was tortured publicly (castrated and paraded) by Justinian – that’s our Alexander of Diospolis. As I’ve already mentioned, Justinian tortured Alexander during the Bubonic Plague in a fit of some kind of political riotousness, about 30 years later (just after Justinian himself died) the Avars came rolling through like a steam roller and did the final knocking-out-the-stuffing from a bunch of thriving Roman Thracian cities – Diospolis was one of them. It never re-appeared.


    Last Word…


    Justinian's Code

    More of Justinian's Roman Civil Law - the Corpus Iuris Civilis - a photo of a page of the Codex of Justinian - the College of Spain Codex

    Roman Civil Law and Homeosexuality


    Review of Homosexuality – Its All About Being On Top

    Any review of law, especially a review in general of important topics in Roman Law will necessarily have a great deal to say about adultery and marriage, as the state was seen as a gathering of eligible male family leaders, and the family is primarily a vehicle for a man (a father, a husband) to protect his own precious DNA heritage (his legitimate/self-recognized offspring) from inadvertent dilution by another man’s DNA.

    A man’s potency as the active generator of families was important. Marriage and children were signs of potency and strength – anything that decreased that strength (incest, bastards) by definition weakened the man (potentially morally, but certainly physically/health-wise in the Roman view) and so the PASSIVE role in a homosexual relationship harmed a man’s strength and potency and therefor harmed society as a whole. A man stole society’s strength by being passive.

    The most important thing wasn’t the act, it was the position of the actors, passive was bad, active was good. Citizens, members of the state, of course should always be active – that strengthened the state. Under the empire, this equation (individual actions=societal strength) was written into the law over and over again. God blessed a moral society, cursed an immoral one – a direct extension of the old city-state’s contract with its own city-state gods – if we do well, you will bless us, if we do wrong, you will abandon us.

    It would be tedious to recite the long history of man-man sex in the ancient world, and especially the Roman world. However, it’s important to remember that the idea of homosexuality – or being gay – is a 20th century construct. Intense male-male relationships and emotions were not taboo and immensely frightening in the past as they seem to be today, and the lines between heterosexuality, bisexuality, and homosexuality were often so dim as to be non-existent.

    An Old, Hackneyed, But True Example

    One example – Julius Caesar – a rich, but self-made man who rose in the Senatorial hierarchy under the organized chaos that was the last years of the Roman Republic – and a notorious bisexual (our word, not his – he would have just thought himself a normal Roman Senator) (for a brief overview see here – Anna’s Fascinating History Blog from 2005).

    As an example of Caesar’s reputation, here is the quotation from Seutonius (the 40’s BCE) – (Julius Caesar was murdered in 44 BCE)

    Helvius Cinna, tribune of the people, admitted to several persons the fact, that he had a bill ready drawn, which Caesar had ordered him to get enacted in his absence, allowing him, with the hope of leaving issue, to take any wife he chose, and as many of them as he pleased; and to leave no room for doubt of his infamous character for unnatural lewdness and adultery, Curio, the father, says, in one of his speeches, “He was every woman’s man, and every man’s woman.”

    ( Section I-Gaius Julius Caesar, paragraph LII (52))

    Focus wasn’t on the personal development of the individual and the shaping of their own life, but on actions, actions that helped or hurt society, society being the religious relationship of a city/group and the supernatural. Things that seem quaint and charming were life-threatening in the ancient world (forgetting to say the right words in a sacrifice, the population believing the correct Orthodox Christian doctrine) and the gods or God would not allow a sinful nation to prosper. This primitive knee-jerk reaction to God and society is still prevalent today, but in the past the state itself felt it could mean disaster and death – a volatile situation to find yourself in.

    Pagan Emperors and Christian Emperors

    There is a brief review of Homosexuality as it appeared in Justinian’s Roman Civil Law – the Corpus Iuris Civilis – in an article on Justinian’s novels at Fordham University (here).

    The earliest Roman law on homosexuality, the so-called “Lex Scatinia” (Gibbon’s Scatinian Law) is barely known by name alone. The Lex Julia (of ~170 BCE) originally legislated against adultery, then later included boys, then later possibly male homosexual acts – however, it should be noted, THE ROMAN EMPIRE CONTINUED TO COLLECT TAXES FROM MALE PROSTITUTES far into the era of Christian emperors (200 years after Constantine – the emperor Anastasius ~500 CE).

    The Christian emperors continued to collect taxes on male prostitutes until the time of Anastasius (ruled in Constantinople – 491-518). But there are occasional laws which seem to have been directed against homosexuality.


    Roman views of homosexuals were complicated to say the least – and probably not very easily intelligible to the average person living in the 1st few decades of the 21st century.

    A Brief Rundown of the Actual References in the Code and the Institutes (rather than a quick Gibbonian Anecdotal Review)

    Here are the rest of the references found in the Corpus Iuris Civilis (the Institutes – what we are looking at today through Gibbon’s eyes)

    Lex Julia on Adultery – 178 BCE
    Law against adultery – later extended to, by implication, include irregular relations – ie homosexual relations – but not punishable by death.

    Law of 342 – Constantine/Constans – Cod.Theod. IX. Viii. 3: (=Cod. Justin IX.ix.31)
    A very obscure law – I can’t make head or tail of it – it seems to be dis-allowing gay marriage, as if it had been legal before. Just to show you I’m not biased (well, I am biased, being gay) and being purposefully vague, here is the text

    When a man marries in the manner of a woman, a woman about to renounce men {quum vir nubit in feminam viris porrecturam), what does he wish, when sex has lost all its significance; when the crime is one which it is not profitable to know; when Venus is changed to another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment.


    (also – a wonderful Late Antique historian (i.e. a man who studied Late Antiquity) – no longer with us – John Boswell spent his career un-straightening Medieval History (pun intended). You may not agree with all his conclusions, but the extent and depth of his research in breathtaking, and in the final analysis, compelling to say the least).

    Law of 390 – Theodosius – Cod.Theod. IX. Vii. 6:
    Condemns the PASSIVE male partner to flames – in very poetic style typical of Late Antique Imperial Prose

    Justinian – NOVEL 77 [538 CE]
    Condemns lustful acts against nature by men, AND SWEARING (by God’s head, eyes, etc). Both acts have in the past condemned entire cities to destruction (famines, earthquakes, pestilences – they and Justinian will not allow either unsanctioned lustful acts or SWEARING in his dominion – both will result in the most extreme punishments. Most of the law has to do with penance and God’s blessing or cursing the Romans. Remember, civil and “spiritual” law were one and the same in Rome, the emperor was responsible both for the physical/political and spiritual well-being/health of Roman citizens.

    Justinian – NOVEL 141 [544 CE]
    Condemns the “defilement of males – stupro masculorum” – and again associates it directly with God’s blessing or cursing the Romans. Remember the Great Plague (1st Bubonic Plague to hit the modern Mediterranean) ravaged Rome in 542 CE. Procopius says this law was a direct result, a kind of scape-goating to find a reason (other than God being unhappy with the current Ruler of the Universal Christian World – Justinian) for God’s displeasure – one of the sections of humanity chosen to be examples of God’s displeasure: homosexuals (see Tom Lees Catholica Commentary

    Some argue this has much more to do with male homosexual prostitution (just recently outlawed some 40 years earlier – the empire had been collecting taxes from male homosexuals for the whole period of the empire – 500 years) than private male-male sex.

    Asides: On Using Laws to Excavate Historical Fact

    As with most Roman laws, who knows why they were passed, and how they were enforced? (laws against taking bribes occur with clock-like regularity in the Code, emperor after emperor – does that mean there were always bribes going on, the central govt. helpless to stop it? Or legislating against bribery made good political capital? Or the laws were effective and bribery always stopped? or the action of bribery changed in meaning over the centuries, but the legal terminology didn’t? or…) So at best legal history makes for a jumping off point for discussion, rather than a black and white description of society as of a given date. The moral of this story – use laws with care when writing history.

    Another interesting aside is that of all the laws in the Institutes – basically there are just 3 on homosexuality – and the basis of all Roman Law on the Subject was the Lex Julia – regulating marriage and originally having only to do with adultery (from 170’s BCE) later extended to other “irregular” “marital-like” relations such as homosexuality. Swearing was just as important a crime in Eastern Rome. Clearly the “Byzantines” would have seen our Heterosexual Panic over Male Homosexuality as a strange obsession – and would have thought us wildly atheistic NOT TO REGULATE such behavior as swearing, Orthodox religious beliefs, and (for example) belief in astrology, and the casting of horoscopes of national leaders. THAT would have been shocking to them.

    The “campaign” of Christian emperors against “Unnatural Lust” in Gibbon’s text and footnotes is highly debatable. Probably non-existent is a better word. In fact, the whole rant against homosexuality (DEF II, Vol.4, Ch.44, pp.837-839) is much more indicative of Gibbon’s personal views on homosexuality than it is indicative of the development of legislation about homosexuality, or even the history of homosexuality. In fact, it’s only been in the last 30 or so years that historians have been seriously grappling with the subject.

    And, yes, this blog is definitely written with a point of view just like Gibbon’s Decline and Fall was. History is just facts written from a point of view with a particular purpose in mind. So in that sense, Gibbon and I agree perfectly.

    But, enough with the babbling on and on, see you tomorrow.

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