Religious Intolerance in the Later Roman Empire - Bad request ...

the use of fraudulent tricks,” 202 that is, if a new cleric had been appointed without the
examination (and presumably approval) of the council and judge and if the people had
not requested that the cleric should keep his property. In such cases this law made
detailed provision for the property of such clerics to be transferred to kinsmen or
children in order that liturgies should continue to be performed. Those with children
would have to give all their property to them so that they could serve on the council.
Those without children would have to give two thirds to their near kinsmen, but
could retain one third for themselves. Clerics without near kinsmen or children
would have to give two thirds of their property to the council in compensation.
Although they too were still allowed to keep one third for themselves. Therefore it
appears that ordinary clerics admitted under due process could keep their property
without liability for liturgies, but Bishops were liable for liturgies.
However, it seems likely that most potential clerics would have had at least one
child and few would have had only kinsmen. As such these apparent concessions may
not have amounted to much and were probably included in the law for presentational,
rather than practical, reasons. Therefore, although there was conciliatory rhetoric, in
practice the law was designed to ensure that councils would still have had enough
resources to perform their functions. Moreover, since the councils would have now
had a supervisory role they could, presumably, have prevented any member of the
decurion class from joining the clergy if it suited them to do so, although popular
acclamation could have served as a useful ‘safety valve’ in any confrontation between
Church and council. However, this clause effectively repealed Constantine's 16.2.6 of
1 June 326 which ordered that clerics should not be appointed through the popular
will. More generally this law also repealed, at least in theory, an earlier (lost) law
referred to in Constantine's CTh 16.2.3 of 18 July 320 which indicated that only those
with “slender fortunes” and who were not able to undertake liturgies should be
admitted to the clergy. Although arguably CTh 12.1.49 may effectively have ensured
that when applicants became clerics, their fortunes had been rendered “slender.”
202 si qui…clandestinis artibus adspirent aut studio fraudulentae
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