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OUT OF ORDER: THE CIRCUMCELLIONS AND

CODEX THEODOSIANUS 16,5,52

The Circumcellions were activists, linked, at least by Optatus and Saint


Augustine, with the Donatists, mainly, if not exclusively, in Numidia, and
attested from about A.D. 340. They were mentioned in an anti-Donatist con-
stitution of A.D. 412. St Augustine in about 420 was pleased to record that
Circumcellions were drifting away from the movement, and settling down to
regular work as farm labourers', but that may have just been wishful thinking,
and there may still have been Circumcellions active after the Vandals won
control of Numidia in 4352. They were marked out for punishment again in a
decree issued by Huneric in February 484, but as the formulation matches that
of the constitution of 412, the clause may be tralatician and may thus not attest
that the Circumcellions were still active3.
They are described as being present on estates in turbae4, which might
suggest that they were migrant agricultural workers, like the harvesters known
from an epitaph from Mactaris, with its reference to a falcifera turmna5.
Augustine, however, says that they were not engaged in useful work, and that
they were not on the land6.
The name came about because they circulated round the cellae rusticanae to
find their food supplies7. The meaning of the term cellae in this context is
disputed: they could be the shrines of martyrs, as Frend argues, or farm
buildings, as Saumagne contested, followed by Brisson. Calderone argues
from the alternative name, Cotopitae (or Catopitae) in Isidore Etymol. 8, 5.53

I Contra Gaudentium i, 33.


2 W. H. C. Frend, 77Te Donatist Church: a Movement of Protest in Roman North Africa
(Oxford 1952) 306 (this book was reissued in 1985 with an expanded bibliography); cf. C. Cour-
tois, Les Vandales et lAfrique (Paris 1955, reprinted Aalen 1964) esp. 285 and n. 5. Praedestina-
tus, writing about A.D. 440, refers to the Circumcellions as though they were still active: de
haeres. 69.
3 The edict is recorded by Victor Vitensis 3, 10 (= 4, 2 in Hurter's edition [1873]); cf. E. Teng-
str6m, Donatisten und Katholiken... (Goteborg 1964) 33-34. Ch. Saumagne, 'Ouvriers agricoles
ou r6deurs de celliers? Les Circoncellions d'Afrique', Annales d'histoire economique et sociale 6,
28 (1934) esp. 355, takes the retention of the penalty on Circumcellions and the formulation of
the law as an indication that there were men who were both Circumcellions and good Catholics
in Huneric's day.
4 In Marcellinus' programma to the Gesta Collationis Carthaginiensis of 411 (PL xi, 1420 A);
cf. Tengstr6m (supra n. 3) p. 27.
5 CIL VIII, 11824 = ILS7457.
6 Ab agris vacans: Aug. contra Gaudentium 1, 32.
7 Aug. contra Gaudentium 1, 32 and enarr. in Psalm. 132, 3. where Augustine suggests that the
name should really be Circelliones; but that is more likely a nickname: cf. S. Calderone,
'Circumcelliones', Parola del Passato 22 (1967) esp. 95.

Historia, Band XLI/4 (1992)


? Franz Steiner Verlag Wiesbaden GmbH, Sitz Stuttgart
Out of Order 489

(Lindsay), that they were mon


stici, the warriors for Christ
own name for themselves, while the tag Circumcellion was one applied to
them by others.
The prevailing image of the Circumcelliones still reflects what their rigorous
opponents, Optatus and Saint Augustine, wrote about them.
Optatus emphasizes two targets of the Circumcellions' revolutionary zeal:
first, they put creditors in fear of their lives and thus effectively destroyed the
validity of acknowledgements of debt; secondly, they terrorised slave owners,
as they would stop waggons and force slave masters to dismount and run
alongside the vehicle while their slaves rode'".
Augustine presents a very similar picture, especially in Letter 185, where he
refers to the Circumcellions as active in freeing slaves, and liberating debtors.
A. H. M. Jones assumes that the targets of Circumcellion wrath were Catholic
landowners and Donatists who had converted to Catholicism", but there is
nothing in the sources to demonstrate that wealthy Donatists were immune
from Circumcellion attacks on their property. The Circumcellions were not
anarchic in their use of force, if we take Optatus as our source, and he
indicates that it was their practice to give creditores written warnings, and that
they only resorted to force if such warnings were ignored'2.
Not surprisingly the movement attracted its share of wild characters who
enjoyed the opportunity of exercising their violent proclivities'.
Optatus was referring to a wave of unrest that began in 340, when the
Circumcellions were led by Fasir and Axido, who are described as duces
sanctorunt More serious trouble developed in 347, when Constans sent out
Macarius and Paul to arbitrate between Donatus and the Catholic, Gratus,
over the bishopric of Carthage. Disturbances in Carthage spread as the impe-

8 Frend (supra n. 2) 173, and in The Church in Town and Countryside; edited by D. Barker
(Oxford 1979) esp. 27; Saumagne (supra n. 3) 144, n. 4; J. P. Brisson, Autonomisme et christianis-
me dans lAfrique romaine (Paris 1958) 332, n. 4; cf. Courtois (supra n. 2) 147; Calderone (supra
n. 7) 102 sq., followed by P. G. G. M. Schulten, De Circumcellionen (Scheveningen 1964) 100.
R. Lorenz, Zeitschrift fur Kirchengeschichte 82 (1971) 54-59 (known to me indirectly) links the
name cotopitae with the form cutzupitani which occurs in Augustine ep. 53, 2 and in de unitate
ecclesiae 6, where Augustine refers to the transmission of their heretical ideas from Africa to
Rome. The readings are disputed, and I gather that Lorenz favours the form cutzoitae, from
which he infers a link with Semitic terms and argues that it is an occupational name, linked with
olive farming. The thread of this argument seems very tenuous.
' Optatus 3, 4 (Ziwsa p. 81); Aug. enarr. in psalm. 132,6. A.D. Dmitriev, VDI 111 (1948) 66-78
(known to me indirectly) distinguished the warrior agonistici from the Circumcelliones, but this
distinction is not borne out by the sources: cf. P. Gacic, Annales 12 (1957) esp. 660.
0 Optatus 3, 4 (Ziwsa p. 82).
1 'Ancient Heresies: National or Social Movements in Disguise?' JThS 10 (1959) 280-298,
esp. 294-5 (reprinted in his 7he Roman Economy [Oxford 19741 308 sq., esp. 324-5).
12 Optatus 3, 4 (Ziwsa p. 82).
13 (Augustine) epist. ad Catholicos 20, 54 (CSEL II, p. 301. 28), with Brisson (supra n. 8) 333.
490 J. E. ATKINSON

rial envoys moved to Numidia,


of armed resistance, and then
Evidence of Circumcellion involvement in the revolt of Firmus against
Rome in the period 372-5 is circumstantial, and not direct. Donatists are said
to have taken advantage of the revolt to settle their score with the Rogatists,
who had broken away from Donatism because of their opposition to the
(Circumcellion) policy of direct action'5.
It is assumed that the Circumcellions gave active support to Gildo, when he
began the revolt from Rome in 395. Courtois suggests that the Circumcellions
were rewarded for their support by Gildo's agrarian reform measures. He
interprets C7h 7, 8,7 as meaning that after the revolt was suppressed the
Circumcellions were to be evicted from the imperial estates on which they had
settled illegally'6. Courtois takes the term transeuntes to refer to Circumcel-
lions, but in the constitutions which he cites the subject is the billeting of
troops, and transeuntes must refer to troops in transit across imperial estates.
Tengstrom emphasizes that there is no direct evidence of Circumcellion in-
volvement in the uprising of Gildo and Optatus'7. But Augustine gives plenty
of references to what he describes as Circumcellion atrocities in that period
and also after 40)018. He was particularly horrified at the way they intimidated
Catholics into being rebaptised. Augustine refers to them in one passage as
'running around armed, threatening and breathing murder, plunder, arson
and blinding"'.
Tthe temptation to liken the sect to various modem subcultures or resistance
movements has proved irresistible. L. Flam-Zuckermann, for example, links
them with other groups described as latrones in antiquity, and says that, on the
evidence supplied by Optatus and Augustine, the Circumcellions constituted

14 Optatus 3, 4 (Ziwsa 81 sq). Frend (supra n. 2) 177 analyses these events and gives full
references.
15 Firmus' revolt: Ammianus Marcellinus 29, 5, Zosimus 4, 16; Rogatists: Augustine c. epist.
Parmeniani 1, 16-17; c. litteras Petiliani 2, 184.
16 Courtois (supra n. 2) 146 sq. The key documents are CTh 7, 8, 7, of January, or June, 400,
and 7, 8, 9, of August 409.
17 Tengstr6m (supra n. 3) 86-90; contra Frend (supra n. 2) 208 sq., esp. 222. Augustine does
concede that he lacked solid evidence that Optatus, the Donatist bishop of Timgad, had colluded
with Gildo: c. Cresc. 3, 15; cf. L. J. Swift AJP 88 (1967) 97. But in the same passage he takes the
connection as self-evident, and elsewhere he asserts that Optatus was charged de satellitio
Gildonis and put to death: c. litt. Pet. 2, 209; cf. 53, and c. Cresc. 3, 16.
18 Frend loc. cit. cites on the events of 397-8 Augustine c. ep. Parm 1, 17; 3, 18, and c. litt. Pet. 1,
26. Augustine suggests that Circumcellion bands were still actively engaged in acts of terrorism
after the suppression of that revolt, for example, in c. Cresc. 47 and 49 (written c. A.D. 406).
19 Aug. ep. 88, 8; cf. c. Cresc 3, 47 and breviculus collationis. .. 22.
Out of Order 491

'un mouvement de revendica


Brisson21. The Circumcellions have also been described - with no concern to
flatter them - as the Militant Tendency of the Church in North Africa22. This
may be criticised as implying that the Circumcellions have to be treated as an
essentially secular movement: it might be preferable to think of them as early
exponents of liberation theology. This would be valid insofar as they were
dedicated to upsetting the social order and resisting various forms of oppres-
sion in North Africa, but the other element in their faith was the pursuit of
personal sanctity even to the point of martyrdom23.
Optatus records that the Circumcellions styled themselves the sancti 24.
There is no reason to reject his evidence: there is epigraphic evidence that
Donatists used the label, and St Augustine seized on Donatist claims to
perfection or sanctification as evidence that the movement was not merely
schismatic, but also heretical25.
Another important element in accounts of the Circumcellions is, as noted
above, their strong desire for martyrdom: they courted capital punishment,
and even terrorised people into killing them26. They committed suicide by
throwing themselves into fire or water, or by hurling themselves down from
cliffs27. Such actions do not seem to fit in with a programme of social revolu-
tion.
The explanation may be that as the Circumcellions found that their cam-
paign for the transformation of society in North Africa was not succeeding
against the forces of the occupying power, revolutionary zeal gave way to
suicidal resistance. A. Gotoh argues that Circumcellions saw in martyrdom
'the possibility of upward social mobility' that they could not find in their
situation in society28. The context of the breaking of the power of the Circum-

20'A propos d'une inscription de Suisse... etude du phenomene du brigandage...' Lato-


mus 24 (1970) 451 sq., quotation from p. 464. For a more critical review of the concept of
latrocinium in the Roman empire see B. D. Shaw, 'Bandits in the Roman Empire', Past and
Present 105, (1984) 3-52.
21 Brisson (supra n. 8) 329.
22 H. Chadwick, 'The Ascetic Ideal...', in Monks, Hermits and the Ascetic Tradition; ed.
W. J. Sheils (Oxford 1985) 1 sq., esp. 12.
23 Augustine refers to this in a hostile way in ep. 185, 12 and c. Gaudentium 1, 32-33; cf. Frend
(supra n. 2) 179 re the Passio Marculi and Marculus' martyrdom in 347 as an inspiration for the
form of suicide preferred by Circumcellions.
24 Optatus 3, 4 (Ziwsa p. 82); cf. the use of the term sancti in inscriptions cited by P. Monceaux,
Histoire litteraire de lAfrique chretienne (7 vols. Paris 1901-1923) vol. IV (Paris 1912, reprinted
Brussels 1966) 453-4.
25 This can be argued from Aug. c. litt. Petil. 2, 44 and 111-2, with enarr. in psalmum 128, 13,
145, 9 and sermo 129, 6. Augustine found them guilty of heresy on numerous scores, including
their attitude to suicide, Aug. ep. 185, 12.
26 Augustine ep. 185, 12; c. Gaudentium 1, 32-33.
27 Augustine ep. 185, 12.
28 'Circumcelliones: the Ideology Behind their Activities', in Forms of Control and Subordina-
492 J. E. ATKINSON

cellions may be sought in the campaign initiated by Honorius to enforce


orthodoxy from A.D. 405. Peter Brown has charted the effects which this
policy had on Donatism29. Augustine bears testimony that the Circumcellions
provided a focus of resistance to Catholic power, and M. Overbeck interprets
the evidence as showing that their struggle was limited to the religious field.
When Augustine writes of Circumcellions assisting debtors against their credi-
tors and liberating slaves, Overbeck argues that Augustine was merely incor-
porating into his own invective details lifted from Optatus' work: thus, in his
view, social justice was no longer a campaigning issue for the Circumcellions
in Augustine's day30. Whereas their focus was squarely on religious matters
when Honorius launched his drive to enforce church unity, there is no com-
pelling reason to think that Augustine was wrong to contend that they were
active against oppression by the wealthy in the period prior to the new phase
in their struggle. Brisson may well be right in referring the picture in Augustine
ep. 185 to the last quarter of the fourth century31.
Honorius' campaign damaged the Donatist cause. Significantly Donatism
dissolved into numerous separatist groups32, and one might argue that the
proliferation of separatist churches is a product of despair in a society where
united, cohesive action offers little prospect of basic change in the socio-politi-
cal order. Those that remained main-line Donatists settled down to respectabi-
lity and an easy cohabitation with their neighbourhood Catholics33.
The parent body, Donatism, has been characterised by W. H. C. Frend as a
schismatic movement, committed to defence of the independence of the
Church from the state, though in the Ainslie lecture delivered in Grahams-
town in 1965 he chose to liken the Donatist sect to the Dutch Reformed
Church in South Africa, as it was at the beginning of this century34. Frend is
generally taken as the exponent of the view that Donatism was a political and
social movement35. The sub-title of his book, The Donatist Church: a Move-

lion in Antiquity; ed. T. Yuge and M. Doi (Leiden 1988) 303 sq., esp. 307-8. Schulten (supra n. 8)
chap. 4, esp. 76 sq., argues that the Circumcellions were heavily influenced by the Maccabees.
29'Religious Coercion in the Later Roman Empire: the Case of North Africa', Historv 48
(1963) 283 sq.
30 M. Overbeck, 'Augustine und die Circumcellionen seiner Zeit' Chiron3 (1978) 457-463,
esp. 463. He refers in particular to Augustine ep. 185, 15.
31 Brisson (supra n. 8) esp. 330.
32 Augustine de bapt. 1, 8; 2, 16; c. Parm. 3, 24; ep. 93, 25; CIL VIII, 8650, cited by Courtois
(supra n. 2) 148, n.8.
33 The evidence is discussed by R. A. Markus, in The Church in Town and Countryside; ed.
D. Baker (Oxford 1979) 1 sq.
34 W. H. C. Frend, 'Heresy and Schism as Social and National Movements', in Schism, Heresv
and Religious Protest...; ed. D. Baker (Cambridge 1972) 37 sq., esp. 45; cf. P. R. L. Brown,
JRS 56 (1966) esp. 282-3; Frend's Ainslie Memorial Lecture (1965) has been reprinted in Frend,
Religion Popular and Unpopular in the Early Christian Centuries (London 1976), see esp.
chap. xxv, 15 sq.
35 L. J. Swift, AJP 88 (1967) 96; Tengstrom (supra n. 3) p. 26.
Out of Order 493

ment of Protest in Roman No


words that Donatism was 'not merely a schism, it was part of a revolution'36,
have helped this characterisation of Frend's view of Donatism.
His presentation of the Donatist movement has been dismissed as a blin-
kered secular approach by G. L. Bray37. This criticism seems unjustified, inso-
far as Frend has been at pains to emphasize that Donatism was not a front for
any nationalist movement38, and was primarily a religious movement. Further-
more, Bray does not realise that to engage in a sociological or political study of
a religious movement is not to deny the authenticity of the religious sentiments
of its adherents.
A. H. M. Jones, who stated that he differed from Frend's Donatist Church
'only in some points of emphasis and interpretation'39, rejected as a moderni-
sing fallacy the attribution to the Donatists of national or class sentiment as
their motive force'. The very notion that Donatism might be considered as an
opposition movement was, as R A. Markus has put it, set on its head by Peter
Brown with two important lines of argument: first, from a Donatist perspec-
tive their theology was orthodoxy: they were fighting for the true faith41;
secondly, Christianity developed in North Africa as the religion of a book,
and depended on the use of Latin, and the antithesis which Frend makes
between Donatism, as the religion predominantly of rural Numidians, and
Catholicism, as the religion more of the urbanised, upwardly mobile, rests on
undue dependence on a narrow band of evidence42. Mandouze has further
warned against the tendency to describe the political significance of Donatism
by transferring to it what was recorded about the Circumcellions43.
Despite the variety of interpretations, the picture of the Circumcellions in
this debate is essentially that projected by Optatus and Augustine, but a rather
different image emerges from Tengstrom's work, based on Saumagne's article
of 1934". Saumagne and Tengstrom took as the key to understanding the

36 Frend (supra n. 2) 336.


37 G. L. Bray, Holiness and the Will of God: Perspectives on the Theology of Tertullian (Atlanta
1979) esp. 23.
38 Frend (supra n. 2) 172.
39 A. H. M. Jones, 'Ancient Heresies . . .' (supra n. 11) esp. 282, n. 1 (reprinted in his T7he Ro-
man Economy [supra n. 11] 310, n. 3).
40 Art. cit. esp. p. 295 (325).
41 P. R. L. Brown, 'Religious Dissent in the Later Roman Empire', History 46, (1961) 83 sq.;
idem, 'Christianity and Local Culture in Late Roman Africa', JRS58 (1968) 85 sq. Cf.
R. A. Markus, 'Christianity and Dissent in Roman North Africa', in Schism, Heresy and Reli-
gious Protest (Cambridge 1972) 21 sq., esp. 30-31.
42 P. R. L. Brown, 'Christianity and Local Culture in Late Roman Africa', JRS58 (1968) 85 sq.
43 A. Mandouze, 'Le Donatisme represente-t-il la resistance a Rome de l'Afrique tardiveT in
Assimilation et Resistance d la culture greco-romaine dans le monde ancien ... ed. D. M. Pippidi
(Bucarest/Paris 1976) 363.
44Tengstrom (supra n. 3) 24 sq. offers a Forschungsbericht to show that Saumagne set the
debate on the Circumcellions on a new course.
494 J. E. ATKINSON

Circumcellions a constitution of 412, CTh 16, 5, 52, which they interpreted as


meaning that the Circumcellions constituted an ordo in North African society.
The Circumcellions were, in Tengstrom's view, free men, of independent
means, wealthy enough to pay monetary fines, agricultural workers, who
made a living by selling their services to olive farmers: their clubs were the
tools of their trade, rather than knobkerries. Their status was higher than that
of the coloni and slaves, and they were a respectable group in society, often
wrongly blamed for acts of brigandage perpetrated by others45.
P. G. G. M. Schulten has offered a detailed critique of Tengstrom's treatment
of the Circumcellions, and there seems to be general agreement that Teng-
strom has rather overstated his case'. Nevertheless it appears to be generally
accepted on the evidence of the constitution that there was an ordo of Circum-
cellions by at least 412, but at the same time the distinction is made between
those who belonged to the ordo in its statutory sense and adherents of the
Circumcellion movement"7.
But the crucial text, C7h 16, 5, 52, is problematic and merits closer atten-
tion, as it sets the term Circumcellion in a legal context and its value as
evidence in determining the social status of the Circumcellions depends upon
a correct understanding of the Latin.
The constitution gives a ruling of 30 January 412 by the emperors Honorius
and Theodosius to reinforce earlier constitutions48:
Preface ... nisi ex die prolatae legis omnes Donatistae, tam sacerdotes quam
clerici, laicique Catholicae se, a qua sacrilege descivere, reddiderint, tunc
ill(ustres) singillatim poenae nomine fisco nostro auri pondo quinquaginta co-
gantur inferre;
spectabiles, auri pondo quadraginta;
senatores, auri pondo triginta;
clarissimi, auri pondo viginti;
sacerdotales, auri pondo triginta;
principales, auripondo viginti;
decuriones, auripondo quinque;
negotiatores, auri pondo quinque;
plebei, auripondo quinque;
circumcelliones, argenti pondo decem.
1. Qui nisi a conductoribus, sub quibus commanent, velprocuratoribus, execu-

45 Tengstrom (supra n. 3) 24 sq.


46 Schulten (supra n. 8); cf. the reviews by P. R. L. Brown JRS55 (1965) 281-3 and S. Caldero-
ne RFIC94 (1966) 498-503.
47 H.-J. Diesner, Kirche und Staat im spatromischen Reich (Berlin 1963) 54 sq. and 78-90;
P. R. L. Brown JThS 15 (1964) 409-41 1; A. Gotoh, (supra n. 28) 303 sq.
48 Essentially the text offered in Theodosiani libri xvi. . .; 2nd edition; edited by T. Mommsen
and P. M. Meyer (Berlin 1954).
Out of Order 495

ton exigenti fuerint praesentati, ipsi teneantur ad poenam: ita ut nec domus
nostrae homines ab huiuscemodi censura habeantur immunes. 2. Uxores quo-
que eorum maritalis segregatim multa constringate9. 3. Eos enim, quos nequa-
quam inlata damna correxerint, facultatum omnium publicatio subsequetur.

4. Servos etiam dominorum admonitio, vel colonos verberum crebrior ictus, a


prava religione revocabit, ni malunt ipsi ad praedicta dispendia, etiam si sunt
Catholici, retineri. . .

As noted above, the constitution has been taken by Saumagne and Teng-
strom to indicate that the Circumcellions constituted an ordo of free men, who
had property, were agricultural workers, but enjoyed a more privileged status
than coloni and of course rural slaves50. This interpretation is led by the
structure of the law, as it is assumed that the second paragraph (52. 1-4)
continues the progression down the social scale.

The Preface gives a list of monetary penalties to be imposed on different


classes of persons found guilty of adherence to Donatism. The penalties range
from fifty pounds of gold for illustres, down to five pounds of gold for
decurions, businessmen (negotiatores) and plebeians, and lastly ten pounds of
silver for Circumcellions. Thus there is a prima facie case for treating the
Circumcellions as an ordo.

The first paragraph (52. 1-4) switches first to identifying the responsibilities
of conductores and imperial procurators to ensure that any Donatists under
their control be brought to justice. The interpretation of this first section of the
paragraph has been much disputed. Saumagne took the relative pronoun qui
in the clause qui nisi a conductonibus. . . fuerint praesentati and also ipsi to
refer to the Circumcellions. Thus he concluded that some Circumcellions sold
their labour to conductores and procurators5". But Tengstr6m and Calderone
were surely right to contend that ipsi must refer to the conductores and
procurators who took no action against heretics under their control52. Sauma-
gne took the apodosis to imply that the Circumcellions were under an obliga-
tion to hand themselves over to the executor, if they were not turned in by their
employers, but this interpretation attributes to the Latin unnecessary lack of
precision, and redundancy, since heretics were liable to punishment (poenam)
however they came to the notice of the authorities. The wording of the

49 Mrs. M. L. Hewett pointed out to me that ambiguity is generally avoided in the Codex and
one would therefore expect uxores at the beginning of the clause to be in the nominative case. If
this is so, one may suggest that maritali acquired an 's' by duplication of the initial letter of
segregatim and that constringanturwas then turned into constringat
50 Tengstr6m (supra n. 3) 27 sq.
51 Saumagne (supra n. 3) esp. 355-8, followed by Brisson (supra n. 8) 334-5.
52 Tengstr6m (supra n. 3) 28-9; S. Calderone, 'Circumcelliones', Parola del Passato 22 (1967),
94 sq., esp. 97-9; Schulten (supra n. 8) 15 and 139, n. 31.
496 J. E. ATKINSON

corresponding section of the ed


refers to conductores and proc
One might expect the first ips
understood before qui but the sense would then be better completed by
nihilominus (vel sim.) rather than ipsi if the clause was intended to provide for
the punishment of those protected by lessees and procurators. It makes more
sense if ipsi switches the subject to lessees and procurators who protected
Donatists. Domus nostrae homines could have been used of those under the
authority of imperial lessees and procurators, but as the emperors were here
concerned to stop evasion of the ruling against Donatism, the clause should
apply a fortiori to imperial lessees and procurators. Other constitutions attest
the use of the label domus nostrae with regard to imperial lessees, actores and
procurators54. Furthermore the pattern of formulation is repeated in clause 4,
where the introductory clause focuses on slaves and coloni and the following
protasis switches the subject, as ipsi must refer to domini and officials, and not
to the slaves and tenants. In both the first and the fourth clauses the subject of
ipsi is determined by the sense of the passage, rather than by what one might
consider normal Latin usage.
As ipsi refers to conductores and procurators, there is no necessity to limit
the reference in quito the Circumcellions. It would seem not to include coloni
and slaves, whom conductores and procurators were to punish by flogging or
correct by admonition, as a following clause shows. These coloni and slaves
would presumably not have to be handed over to the executor. This leaves
men from any other category in society over whom conductores and procura-
tors might have authority. It is not necessary to restrict this group to the
Circumcellions, and it is thus preferable to see qui as referring back to the
general phrase omnes Donatistae used in the introduction to the preceding
paragraph. Thus the qui clause might be reasonably be interpreted to include,
for example, some negotiatores. Constitutions on the lustral tax show that a
man might be both a 'rustic' and a negotiator, that negotiatores might be
attached to imperial estates, and that tax offlicials were wont to find difficulty
in judging whether men on estates were to be treated as coloni or negotiato-
res55.

The second paragraph demands that a wife be treated the same way as her
husband, and be subject to the same level of fine. The third paragraph requires

53 The key section in the law of 484 begins: ordines autem civitatum sed et procuratores et
conductores possessionum tali poena videbantur affligere, ut si forte tales celare diligerent et
minime publicassent et retentos iudicio non facerent praesentari, ipsi tenerentur ad poenam. . .
(Victor Vitensis 3, 10 sq. [CSEL VII, 76 sq.l), with Tengstr6m, 29-30.
54 For example, CTh 1, 32.7; 10, 26; 11, 16.12; CTh 16, 5. 54, 5-6 reinforces the clause under
discussion.
5 5a) CTh 13, 1, 10; b) CTh 13, 1, 21; c) CTh 13, 1, 3, 8 and I0.
Out of Order 497

that a Donatist found quilty of remaining a Donatist after the imposition of a


fine should suffer the confiscation of all his property. These two clauses
clearly amplify the provisions of the preface, and thus this paragraph does not
switch entirely to categories in society that were lower than the supposed ordo
of Circumcellions. It is thus not necessary to assume that all Circumcellions
were of a higher rank in society than the coloni and slaves who were under the
control of conductores and imperial procurators.
This argument is not upset by the fourth clause, which refers to slaves and
coloni, and imposes on the owners of slaves the obligation to warn them off
Donatism, and on those who had coloni under their power, the obligation to
punish them with quite frequent beatings. Thus this clause deals with men
whose servile status put them outside the categories of persons liable for
pecuniary penalties, but it does not mean that all coloni were treated likewise,
nor that all coloni were punished by flogging. Indeed the opening clause in this
paragraph must surely refer in part to coloni who were liable for monetary
penalties. Schulten notes that a law of 414 demonstrates that colonimight have
the means to pay monetary fines, for it prescribed that a colonus who was not
brought to repentance by flogging was to be fined a third of his peculium56.
Thus clause 4 has to do with slaves and coloni whose poverty denied them the
option of a fine as an alternative to physical punishment. We should assume
that indigent freeborn people living in cities faced flogging, just like the poorer
coloni Thus this constitution does not set out a scale of penalties for every
status group that might be identified in North Africa. Clause 4 is in no way a
provision to catch all those missed in the preceeding clauses, but is again an
amplification of the preface, since it threatens with monetary fines those who,
even if of the Catholic faith, fail to take action against Donatist slaves and
coloni
The first paragraph should be seen primarily as a series of clauses amplify-
ing the provisions made in the preface. In each case the immediate subject is a
class of persons who would be deemed able to pay a monetary fine according
to the tariff set out in the preface. The first paragraph alludes to people from
subordinate strata in society, including coloni and slaves, but there is no
presumption that all fell outside the categories listed in the preface. In particu-
lar there need be no presumption that no one who was accused of Donatist
affiliations and who was handed over to the authorities by a conductor or a
procurator would be classifiable under any of the groups listed in the first
paragraph. Indeed it was quite possible for a colonus to be a plebeian:
compare CTh 11, 1, 26, though in general coloni were treated as distinct from
the plebeians, who were freeborn and not under the dominium of others57.

56 CTh 16, 5, 54; Schulten (supra n. 8) 9-10.


57 NVaL 23, 3-4; CTh 5, 17-18.
498 J. E. ATKINSON

The constitution leaves many points unstated. For example, clause 2 deals
only with wives of those affluent enough to be liable for a fine: it does not
spell out what should happen to the wife of an indigent freeborn person.
Plebeians are held liable for a fine, but one assumes that there were poor
plebeians who would be punished physically or be sentenced to heavy labour:
compare Theodosian Code 7, 18, 1; 9, 21, 1 and the Novels of Valentinian 23,
4.
Thus, even if it were accepted that the Circumcellions constituted an ordo in
North African society, the constitution leaves us with no clear picture of its
definition. The level of fine, 10 pounds of silver, means that a Circumcellion
was worth a tenth of the expected means of a plebeius or negotiator, and this
does not support Tengstrom's picture of the Circumcellions as relatively well-
to-do-people in society.
Schulten makes the point that it seems improbable that an ordo in society
should have been coterminous with a religious sect58. If the Circumcellions
constituted an ordo, like the others mentioned in the first paragraph of the
constitution, then one should assume that, as with the other ordines, there were
Circumcellions who were not Donatists, but that is not the impression given
by Augustine and the other sources. If Augustine is right, then the Circumcel-
lions should be seen as the odd group out in the preface of the constitution, in
that all members of that group would have been liable for punishment (even if,
as Augustine and Optatus indicate, the Circumcellions maintained some
measure of independence from the Donatists). The constitution was not so
carefully framed that one can exclude the possibility that all Circumcellions
were presumed to be Donatists.
When the constitution is read beside the relevant texts of Optatus and
Augustine, Tengstr6m's definition of a Circumcellion ordo seems unconvinc-
ing, and it is more likely that at the time of the law of 412, the Circumcellions
constituted a sect, whatever its origins, and that we are not dealing with a class
defined by its members' occupation and social position, but rather with a
movement whose supporters were mainly men from families that had not
been anchored in the colonate system, plus men who dropped out of, or
rebelled against, the colonate or other forms of settled dependent economic
activity.
Tengstrom seems to imagine that they were motivated by a work ethic,
hence their relative affluence, but that is not what Augustine suggests in the
contra Gaudentium, where he talks of the Circumcellions as ab utilibus open-
bus otiosum (1, 32), and expresses pleasure that men are drifting away from the
Circumcellions to join the agricultural labour force (1, 33). Significantly Augu-
stine refers to these lapsed Circumcellions as giving up the Circumcellion

58 Schulten (supra n. 8) 10 sq.


Out of Order 499

name and work, by which he presumably means brigandage and psychotic


behaviour.
There is no compelling reason to believe that the drafter of the constitution
thought of the Circumcellions as constituting an ordo rather than an heretical
movement.

University of Cape Town J. E. Atkinson

I acknowledge with thanks the comments of Mrs M. L. Hewett on an earlier draft of my


observations on this constitution.