Defending Constantine: The Twilight of an Empire and the Dawn of Christendom (29 page)

CONSERVATIVE INNOVATOR

Constantine appears, especially in his legislation, to have been an impatient man. He was certainly impatient with the technicalities, exceptions, and tiny twists and turns of the law, and this accounts for the sometimes sarcastic tone of his legislation. No piece of legislation illustrates this tendency better than that concerning wills. Wills were cumbersome for most Romans. Seven witnesses were required, and the one making the will had to seal a written text to authenticate the will. Exceptions were made for soldiers, whose wills were valid without formal confirmation by witnesses and who could therefore declare a binding will on their deathbed. Constantine's legislation on wills extended the military exception to citizens of the empire generally,56
and did so in a way that made it clear that he disliked the way earlier laws allowed the wishes of the dying to be overridden if someone forgot to use the proper formula:

Since it is undignified that testaments and last wishes of decedents should become invalid through useless technicalities, we deem it best to dispense with formalities, the value of which is imaginary, and in instituting an heir no particular form of words is necessary, whether that is done by imperative, direct or indirect words. 1. For it makes no difference whether it is stated "I make an heir," or "I institute," or "wish," or "I charge," or "I desire," or "let him be," or "he will be"; but an appointment should be valid, by whatever expressions or by whatever form of words that is made, provided only that the intention is thereby made clear. No solemnity of words which are uttered, perchance by a half-dead and stuttering tongue is necessary. 2. The necessity of use of customary words is, accordingly, dispensed with in making a will, and persons who desire to arrange their affairs, may do so by writing their will on any material suitable for documents by using any words they wish. (CJ 6.23.15)

There is a charming irritation with lawyers and legalisms in the multiplication of possible formulas: "`heredem facio' vel `instituo' vel `volo' vel `mando' vel `cupio' vel `esto' vel `erit."' Constantine was the kind of man who laughed at, and probably told, lawyer jokes. But there is a more substantive concern driving Constantine's law concerning wills, a principle enunciated in various ways in his legislation. In a law of September 17, 325 (CTh 11.39.1), Constantine mentioned a former law requiring a "plaintiff" to prove a claim to property. "Moved by a sense of justice and equity" (nos aequitate et iustitia moti), he added to this requirement the demand that claimants to property prove how the object belongs to them. In a law ascribed jointly to Constantine and Licinius (CJ 3.1.8), the emperors declare, "It has been accepted as law that the foremost aim in all things should be justice and equity, rather than to follow the strict letter of the law."

The first principle of Constantine's legislation is nicely summarized in a statement from a later emperor: Man is more than law (CTh 9.45.4.2).

PROTECTING THE WEAK

And the second principle is like unto it: Constantine's legislation is frequently driven by a concern to protect the rights of the forgotten little people of the empire from the venality of officials, the burdens of landlords, the petty manipulations of the wealthy and powerful.57
Over the course of the century between Caracalla's expansion of Roman citizenship and Constantine, citizenship had suffered the effects of inflation: If everyone is a citizen, what privilege does it confer? None, except the privilege of paying heavy taxes to support the army. Legal distinctions between citizen and noncitizen no longer defined the boundaries of social order, giving way instead to differences of wealth and social connection, usually described in terms of the distinction between honestiores and humiliores. Constantine knew that honestiores were wont to abuse their privileges. An undated decree from Constantine and Licinius condemned municipalities for colluding to transfer tax burdens from "the more powerful men to persons of inferior status" (per collusion em potentiorum sarcinam ad inferiores trans- ferunt), and announced that anyone who can prove he has been oppressed in this manner "shall assume only his original tax declaration" (CTh 13.10.1). He required that tax assessments be developed "in accordance with plans and regulations of the governor" so as to prevent the "multitude of lower classes" from being "subjected to the wantonness and subordinated to the interests of the more powerful." Commoners were to be relieved of "grave and iniquitous outrages" (CTh 11.16.3).

Constantine increased penalties on officials who overcollected on imposts, and he provided recourse for small landowners who were abused by the system:

The serf [colonus], from whom more is demanded by the proprietor than is customary or more than was paid in former times, may go before the first judge whom he can find, and make complaint, so that the proprietor, convicted of demanding more than is customary, may be restrained from doing so thereafter, first returning what he has extorted as overpayment. (CJ 11.50.1)

If it shall appear by the complaint of our provincials and it shall be proved that the desire for gain of the farmers of revenue has been such that they have demanded imposts beyond the customary amount and beyond the limits of our permission, they will be punished for such crime by perpetual exile. The sale of the right [to collect imposts] shall be made under your inspection or under that of those who succeed Your Gravity. (CJ 4.62.4)

Constantine's interest was not confined to human abuses. He also legislated (in 316) concerning the humane treatment of animals. He worried that many Romans abused animals with "knotty and very stout clubs" and thus "use up whatever strength they have." Constantine thus forbade clubs to be used on animals and decreed that drivers should "employ either a switch or at the most a whip in the tip of which a short prick has been inserted, by which the lazy limbs of the animals may be gently tickled into action." He was serious: ranked soldiers who violated the rule would be demoted, and common soldiers might be deported (CTh 8.5.2).

There is a third principle, and it clashes rather violently with the first two: traditional Roman social distinctions are good and should be preserved when possible and restored where they have eroded. In one law, Constantine said that the force of the law against adultery would not be brought against a woman who serves drinks in a tavern. It is not clear whether he considered the woman a slave, a free woman or the tavern owner. Given her profession, though, she is more likely to be seduced and loose than other women. Perhaps Constantine intended his law to protect such women when he wrote that they were outside the law because of their "mean status" and are thus "immune from judicial severity" (CTh 9.7.1). But it is hard to escape the implication that Constantine's law codified a distinction between the good girls and the sluts and that it left the sluts to fend for themselves.58
In Constantine's legislation we first meet with coloni, free peasants, who were often much poorer than slaves. Constantine legislated to protect them against voracious tax officials but also required them to stay on the land. Similarly, he restricted the freedom of sons to choose a profession different from that of their fathers.59
Criminal punishments had differed from class to class for centuries, and Constantine did nothing to remove the inequity.60
While Constantine may have agreed with Lactantius that social status meant nothing in the church'61
the emperor ensured that it continued to mean a lot outside.

Such legislation intentionally maintained social divisions, hardening or reestablishing them as necessary. Other decisions inadvertently widened social and economic divisions. Establishing a gold standard for the Roman world was one of the great achievements of Constantine's reign, one of the few monetary reforms in history that worked. The gold solidus remained in circulation for centuries after and retained its value. Though he did not mention it, Eusebius might have found some Mosaic significance in the fact that Constantine removed gold from pagan temples and put it into circulation-the plunder of Egypt distributed to Israel. At the same time, however, Constantine continued the inflation of bronze coinage, which was used by the majority of laborers, coloni and small-hold freemen. The result was an astonishing inflation of bronze over against the solidus, a situation made all the worse because taxes were increasingly demanded in gold. While the wealthy traded in stable gold coinage, bronze-money poor farmers and laborers paid higher and higher prices for goods and had to resort to patrons to pay their taxes.

CONCLUSION

Constantine's marriage legislation nicely illustrates the tendency of much of his legal activity. On the one hand, he was perfectly willing to overturn laws of centuries-long standing if they violated reason,62
as he did with the Augustan restriction on inheritance. At the same time, much of his legislation seems, in intent, to be aimed at securing or restoring traditional Roman social patterns. We will observe this dialectic at several points in what follows.

The ears of the judge shall be open equally to the poorest as well as to the rich.

CONSTANTINE, FROM THE THEODOSIAN CODE

Rome was always famed for its legal system, but that system was developed almost exclusively for civil rather than criminal law, "private" rather than "public." Nothing exposed the weakness, arbitrariness and cruel tyranny of Roman criminal law more clearly than the persecution of Christians. Charges against Christians rested on no foundation "other than a prosecutor, a charge of Christianity, and a governor willing to punish on that charge." Though the church has sometimes been considered a collegia illicita, that classification played no role in the actual decisions regarding Christians. No "Christian was ever prosecuted as a member of a collegium illicitum." Christians were punished for being Christians, punished for the name alone. Not only the law but also the personnel needed to change, for if the persecutions revealed the arbitrary underside of Roman criminal procedures, they also revealed that the justice system was populated by feeble Pilates. Despite the theoretical primacy of the emperor-the emperor is the law-enforcement of the law was not directed from the center but left in the hands of provincial and municipal officials. Governors were advised "to consider not so much what was the practice at Rome as what the circumstances required; and the principle that in the exercise of his criminal jurisdiction the governor should act according to the circumstances existing in his particular province was well recognized." Many martyrs were made
because judges thought sacrificing a few Christians a small price to pay to keep the province peaceful and quiet (pacata atque quieta).'

Private law was more developed but in practice little better. The law was "obscure and uncertain, and riddled with archaic technicalities," while "the administration of justice was excessively slow, largely owing to the wide latitude given to appeal." Justice was expensive "because of the heavy court fees charged, especially in the higher courts, not to speak of barristers' fees and of the long journeys and delays often imposed on parties and their witnesses." As if that were not enough, "the judges who administered the laws were not chosen for their legal learning, had a very brief tenure of office, and were as a rule venal and subject to social pressure and intimidation."2
Most judges sought the position in order to advance economically and socially, and posts were filled by the highest bidder: "provincial governors ... had paid considerable sums for their appointment, and had to recoup themselves in a hurry, for their period of office was short."3
Both in the fourth century and over the centuries, many have complained about the corruption of the late Roman system of justice, but the complaint assumed the decay of an uncorrupt "normal" system. There was none. Corruption was not a flaw in the system; it was the system.

CONSTANTINE AND APPEALS

Constantine issued twenty-five laws concerning the process of appeals, the most intricate and challenging aspect of the imperial legal system.4
He addressed the money problem head-on. In addition to the normal court fees, bribes were common, and even the official fees (sportulae) originated as "illicit tips." Fees made it impossible for the poor to move up the system of appeals. A poor man could not afford to make the appeal himself, and if his richer opponent made the appeal, the poorer could not afford to de
fend himself. If a richer opponent kept appealing, the poor would have to concede defeat, which would likely involve additional monetary loss.5