Bishops, Ecclesiastical Institutions, and the Ostrogothic Regime 471
but they still concerned the doctrinal sphere, and remained judicial proceed-
ings de fide.
In this sense, Gelasius was correct in reiterating that the right of the bishop
(in particular, the bishop of Rome) to judge such cases had been recognized
by imperial laws.95 The competences of the ecclesiastical and imperial courts
in the judgement and punishment of criminal behaviour by the clergy were
determined over the course of two centuries, and not without uncertainties
and confusion.96 The same picture from the Theodosian Code confirms that
when it was enacted in 438 juridical thought was still undeveloped and when
faced with the demands of the church (reinforced by everyday practice, as
the interventions in the letters of Ambrose and Augustine show) left room for
various and often contradictory interpretations. The five constitutions on this
subject (four included under the title de episcopis and one under de religio)
recognized the existence of a privileged forum, but its limits were not well
defined, reflecting the uncertainty in which the issue remained.97 A novella
of Valentinian III in 452 clarified the question, establishing that no jurisdic-
tional power could be conceded to bishops for criminal matters.98 A mutilated
document issued by Majorian has lent itself to conflicting interpretations,
but his legislation was largely dismantled by Basil and Ricimer immediately
after his death.99 The content of the Novella 35 of 452, however, was not modi-
fied and Gelasius made no attempt to disobey it under Theoderic.
This is demonstrated precisely by those epistles of Gelasius which pertain to
the dossier of Eucaristus and are often cited as examples of the papal claim to
have jurisdiction in criminal matters.100 Eucaristus was a Christian, perhaps a
deacon, in a position that allowed him to squander the assets of the church to
which he belonged.101 Evidently to avoid being forced to make repayment and
to escape from a just condemnation, he had attempted to obtain the bishopric
95 Gelasius, Ep. 27.8–9, ed. Thiel, pp. 430–1: “praecipue cum etiam ipsae leges publicae eccle-
siasticis regulis obsequentes, tales personas non nisi ab episcopis sanxerint iudicari.”
96 Gaudemet, “La première mesure législative de Valentinien III”, pp. 130–5.
97 For the legislation see Gaudemet, L’Eglise dans l’empire romain, p. 243 and Cuena Boy,
La episcopalis audientia, p. 149.
98 Nov. Val. 35 (April 15, 452), in particular: “Quod his religionis et sacerdotii veneratione per-
mittimus. Nam notum est, procurationem in criminalibus negotiis non posse concedi.”
See Crifò, “A proposito di episcopalis audientia”, p. 407 and Giglio, Patrocinio e diritto
privato, pp. 158–9.
99 Nov. Mai 11 (March 28, 460).
100 Banfi, Habent illi iudices suos, p. 327, following Vismara, Episcopalis Audientia, p. 125, and
Mochi Onory, Vescovi e città, p. 183, n. 131.
101 Gelasius, Ep. Fragm. 23, ed. Thiel, p. 497.