THE YEAR AFTER THE defeat of Maxentius, it becomes possible to observe Constantine in the business of actually governing his empire. The earliest surviving constitution in the Theodosian Code, the vital repository of imperial administrative documents that was composed a century after Constantine’s death, is extracted from an edict issued on January 18, 313; the subject—the abuse of the poor by the rich—is one that would often occupy Constantine. Here he says: “Since the registrars of municipalities, acting with the connivance of the rich, transfer the burden of providing sustenance for soldiers to those who are less fortunate, we order that whosoever should prove that he was subjected to an additional burden will be subject only to his original assessment.”1 In another extract from the same edict, he is quoted as threatening to punish people who make false accusations—a statement that reiterates the earlier Galerian edict on accusations, which is attributed by the editors of the codes to Constantine, quite possibly because it was he who confirmed that it would remain in force.2
The fact that these are extracts from the same edict makes it quite likely that Constantine was responding to complaints he had been receiving in the wake of his march on Rome, and doing so in a way to demonstrate to his new subjects that he intended to be responsive to their concerns. Constantine believed strongly that in a properly functioning society, people should not try to escape the responsibilities that come with their status; and furthermore that they should be secure in the status to which they were born unless they had done something wrong. So it was that in 314, writing to Volusianus (the urban prefect who would be exiled at the end of this, his second term in office), he goes on at length on the subject of status declaring that if a person has been enslaved “under the tyrant” he should be set free, and anyone who tries to keep that person in bondage should be punished since “It is our pleasure that those people who knowingly lie about free persons who wrongly sustain the necessity of slavery should be subject to peril.”3 In addition, those who have incurred infamia (disgrace) as a result of their criminal activity should find that the “gates of dignity do not lie open to them.”4 The language is evocative of the stress on religious freedom in the edict that Licinius issued after the defeat of Maximinus. Here we see the fusion of ideology with practical action, which is something that will routinely reappear in Constantine’s administrative record.5
Other legislation of this period casts a good deal of light on the problems besetting the new regime as seemingly—to us—abstruse issues of administration turn out to reflect much larger issues. One of these, for instance was how to integrate people who had served under Maxentius into Constantine’s administration. A very revealing rescript from March advises a treasury official named Aemilius that when his rescripts contain the phrase “integral status,” with reference to a house that he has given to someone, that means “as we have written before” that it should include “slaves, beasts, crops and the rights thereunto pertaining.”6 Aemilius’ ignorance of what Constantine meant by a basic term suggests that it might have meant something else under Maxentius. In another case Constantine is writing about the social status of navicularii (ship captains); at the heart of the questions he received on this point from the official in charge of Rome’s grain supply is whether one’s obligations as a ship captain were more important than one’s other obligations. Basically the answer is (with occasional qualifications) that the obligations of being a ship captain come first. This is hardly surprising because if the captains aren’t sailing, Rome starves.
Elsewhere we find evidence of something that would be an abiding concern—the efficiency of the court system. On April 15, 314, Aelianus, the governor of Africa, received a letter from the emperor telling him that he ought not “in accordance with an earlier law” allow people to appeal a preliminary ruling, since that sort of appeal threatened to clog up the court system, but that he should allow appeals only after the whole case had been heard. If someone showed up at his court appealing such a ruling, he should fine him for making an incorrect appeal, then hear what he had to say. The earlier law to which Constantine referred was a ruling that reached Volusianus at Rome on February 25. The emperor would repeat these same instructions in a letter to Aelianus’ successor, Petronius Probianus, a man from Verona probably related to Petronius Annianus, Volusianus’ consular colleague in that year (he would be prefect of the city in 329–331).7 The fact that Aelianus, Volusianus, and Petronius, all experienced officials, should be hearing from Constantine on the same point within a couple of months of each other suggests that he was indeed introducing a new rule. On September 13, 315, he posted an edict stating, “No rescript that is contrary to the law is to have force, no matter how it may have been requested. Judges must rather follow what the public laws command.”8 The rather brusque tone suggests some frustration and the difficulty in getting people to change deeply ingrained habits
Perhaps the most revealing aspect of Constantine’s work in these years comes from a series of letters dealing with the penal code. In these letters it becomes clear that Constantine took a very conservative approach to governing and that he had no problem dealing with the traditional—largely pagan—aristocracy that dominated the officeholding class. One of these men was Aco Catullinus, the staunchly pagan patriarch of a noble Italian family, whom he had appointed governor of the African province of Byzacena in what is now Libya during 313. To him Constantine explains “that when his own confession or a clear and well substantiated investigation has determined through proofs and arguments that a person is a murderer, an adulterer, an evil-doer, or poisoner, which are atrocious crimes,” that person should not make endless appeals unless he can obtain support for his view from “witnesses and examination under torture,” and can make a case that he has been wrongly convicted through the influence of his accuser. Concern that a person could be overwhelmed through the power of his adversary rather than the truth will recur throughout Constantine’s reign as he seeks to protect his subjects from oppression at the hands of those more powerful than they.9
In a similar vein, in the next year, 314, he would write to Aelianus, telling him that people named in anonymous denunciations should “flourish, free from fear, with security,” and be warned only that they make sure that no one should suspect them of the crimes for which they have been denounced. If a person thinks that there is a case against someone, he should prove it openly.10 The point he was making was relevant to an inquiry that Aelianus had diligently conducted in the previous year. The case abounded in forged documents and was connected with a Christian controversy raging in his province. It also seems that he was a pagan, making it appear that Constantine’s Christianity was not so all-encompassing as to eclipse his belief in public order or his willingness to entrust delicate matters in the Christian community to the judgment of a non-Christian.11
The efficiency of the legal system was intimately related to another great passion of Constantine’s: maintaining the stability of the family unit. At about this time another experienced official, the vicarius Domitius Celsus, the man in overall charge of the African provinces, would hear from Constantine on a matter involving kidnapping; Constantine would tell him that those who “inflict pitiable childlessness” on parents should be sentenced to well-known punishments. Free men should be sent to the mines, from which they should never be released (conditions in the mines were notoriously brutal) while a slave or a freedman would be thrown to the beasts as soon as possible, though a freedman might be placed in a gladiatorial ludus [training facility] “on this condition that before he is able to do anything by which he could defend himself, he should be consumed by the sword.”12
This message sent on August 1 reiterates that Constantine was quite willing to use the traditional penalties that had been routinely inflicted upon Christians. In February of 320 he would write to Valerius Maximus Basilius, then prefect of the city (and a member of another wealthy Italian family), about the law on treason. Charges of treason were especially unpleasant since the accused, even holding a social status that would usually render him immune from such a fate, could be questioned under torture. On this point Constantine reiterates Galerius’ edict on accusations ordering that the accuser can be tortured as well. If a slave or freedman should bring a false charge (a very nasty way of getting back at a hated master) “the declaration of such outrageous audacity will be suppressed immediately at the beginning of the action, through the sentence of the judge, and the guilty party shall be crucified without a hearing.”13 It seems likely that this response, which reproduces Galerius’ regulation, was produced because Maximus had asked what the law was on this point. Even if Constantine had no fondness for him, Galerius was still a legitimate emperor, and, for Constantine, that mattered more than personal likes or dislikes even if this also meant imposing a penalty—crucifixion—that made Christians especially squeamish.
In a similarly traditional vein Constantine had written, two years before, to the new vicarius of Africa, Locrius Verinus, a senator from Etruria who would become an important member of the governing circle when entrusted with the prefecture of the city during the critical mid-320s; Constantine would tell him that if a person was guilty of parricide—either attempted or successful—he “will be subjected neither to the sword nor the flames nor any other such penalty, but he shall be inserted in a sack, and confined within the fierce narrows he shall be mixed with the escort serpents, such as the nature of the region provides, or he shall be thrown into a nearby sea or river, so that while alive he shall begin to lose the enjoyment of the elements so that the heavens will be taken away from him while alive and the earth from him when dead.”14 This grisly penalty, known simply as “the sack,” dated back to the earliest period of Roman history and was intimately related with pagan notions of the way that one dealt with extreme impurity. The one deviation from the use of traditional penalties appears in an order given to Eumelius, Verinus’ predecessor as vicarius of Africa, telling him not to tattoo notice of conviction on the face of a man condemned to hard labor or to a ludus, “since the penalty of the conviction may equally be tattooed on his hands or on his legs so that the face, which is made in the form of celestial beauty will be minimally damaged.”15
As a man, Constantine might be interested in new ways of defining his relationship to the divine as he needed to establish his place vis-à-vis his predecessors. The pattern that is revealed in these texts applies to both spheres. His approach to religious issues during this decade is to take certain actions that could be read as overtly favorable to Christians, while continuing policies in accord either with earlier tradition or with his own previous practice.
Most notable in this regard is the regularization of the bronze coinage between 313 and 319 in that most of the output during these years bore a portrait on one side and the image of “Invincible Sun the Companion” on the reverse (see figure 19.1).16 This can be read as a sign that Constantine wished to advertise the continuing assistance of the god of his father, whose contribution to the victory at the Milvian Bridge was so prominently promoted in his current propaganda.17 Otherwise it might be read, perhaps more subtly, as occluding the traditional gods of Rome from the picture.18 The meaning may even have been in the eye of the beholder. But the one thing that “Invincible Sun the Companion” is self-evidently not is the Christian God—unless again you had heard Constantine speak of the shining God who appeared in the watchpost of heaven, were accustomed to associating solar imagery with Christ, and/or saw significance in the fact that the day of the Sun with which each week began was celebrated by Christians as the Lord’s Day. That was certainly the conclusion that an official in the Egyptian city of Oxyrhynchus would draw when he announced in 325 that court would not be in session on “The Lords Day.”
FIGURE 19.1
(a) Constantine and the Invincible Sun on a coin minted at Trier between 313 and 315. The image of Invincible Sun (b) clearly echoes the image that began to be publicized in the reign of Aurelian seen on this coin of Aurelian (c), minted in 274. Source: Courtesy of the author.
The decision of the Oxyrhynchite presumably resulted from the extension of the practice recommended to Helpidius, the vicarius of Rome on July 3, 321, in a rescript stating that Sundays should not “be occupied with the altercations, quarrels and contentions of litigants,” though people should be able to engage in legal actions that would be regarded as joyful such as the emancipation of a child from the authority of a father or the freeing of a slave. Then too he noted that while people in cities should take the day off, “rural folk should freely engage at will in agriculture since it often happens that on no other day is it more convenient to sow grain in furrows or place vines in trenches” so that the opportunity afforded by the “heavenly” gift of good weather should not be missed.19
In other matters, Constantine’s decisions show a desire to combine innovation with tradition—tradition that seems now well embedded in his administrative repertoire. An important case in point was a law of January 1, 320, governing family relationships, which concerned marriages between women and “fiscal slaves” (probably an extension of earlier rulings that had made some unions between free women and “higher-class” slaves less impermissible than others), forfeitures, the violence of tax collectors, inheritance law, and the abolition of one of the more onerous provisions of marriage law instituted in the time of Augustus. This last imposed penalties on those who had no offspring, or those who had chosen not to remarry once an earlier marriage had ended with fewer than three children.20 In Constantine’s revision: “Those who were considered celibates according to the ancient law are freed from the imminent terrors of the laws and so shall live as if amongst those supported by the bonds of matrimony and there should be to each one equal opportunity for taking what is due,” though he retains a penalty for married persons who have no children, a situation that he attributes solely to the wife. It seems that his view is then that if people do not happen to have children by the time a marriage ends, that is to be put up to their misfortune, but the normal result of a marriage should be children. If there are none, the implication here is that the woman is using contraception (which was at best rudimentary and readily conflated with an early term abortion) against her husband’s wishes.21
Taken out of context, as it is by Eusebius, who lauds it as a sign of Constantine’s devout Christianity, the ruling does indeed appear quite radical.22 In the context of the law as a whole, while it is not impossible to attribute it to Constantine’s new faith, the new ruling appears to be part of a program designed to reduce what he saw as socially disruptive litigation and abusive practices, for it is also stated that people who are having trouble paying their taxes should not fear that they will be thrown into prison or beaten with the plumbum (a dangerous leaded whip). If such a person continues to refuse to pay he should be taken into the less stringent military custody while his estates are turned over to his fellow citizens so that they pay what is owed (taxes were assessed on communities so that a person who failed to pay his fair share was imposing a burden on his fellows).23
As with the abolition of penalties for the celibate, Constantine evidently fears that there will be those who stretch the limits of his generosity too far. Elsewhere his laws seek to limit the circumstances under which people can challenge a will, suggesting that his primary concern was to protect property rights. Two years later the panegyrist Nazarius would suggest that because Constantine was very keen on traditional morality, laws that strengthened marriage and subdued vice, marriage legislation might have ideological as well as practical purposes. Just as Diocletian saw proper matrimonial customs as definitionally Roman in his edict on close-kin marriage, so too Nazarius suggests that legislation regarding good marriage could signal that the emperor was keen on the proper order of society, for which successful marriage and family stability were a metaphor. Constantine would much later let slip that he was aware that the actual effect of legislation on domestic matters might be no more than slight.24
Another area in which innovation joined with tradition was divination. In 320, Constantine wrote to Maximus (the one we’ve already encountered in his role as prefect of the city) stating that no one should consult a haruspex in private and that if anyone came forward with information about someone who had done so, he should not be treated as an informer. If people wish to consult diviners in public, they are free to do so. Haruspex in this sense means “private diviner,” and bans on private divination or asking questions about the health of one’s neighbors, damaging their property, and so forth go back to the middle of the fifth century BC. In the case that Maximus is asking him about, Constantine orders that the diviner be burned at the stake and the individual consulting him be exiled to an island, the assumption being that the latter is rich since he has a house large enough to accommodate a secret consultation.25 The instructions to Maximus on this point reiterate and refine the terms of an edict issued the year before in which Constantine had said:
We prohibit haruspices and priests and those who are accustomed to minister to such ceremony to approach a private house or, under the pretext of friendship enter the doorway of another person. The penalty is set against them if they violate the law. Those of you who want to do this for yourselves, go to the public altars and temples of your custom and celebrate the rites for we do not prohibit the practice of long custom under the open light of day.26
In his inquiry Maximus seems to be pointing out that some definition of the “penalty set” would be a good idea, and it’s worth noting that the somewhat neutral “those who want to do this for themselves” of the edict becomes in the letter to Maximus, himself a pagan, “those wishing to serve their superstition.”
In February 320, Maximus appears to have notified Constantine that the Colosseum had been struck by lightning. Given the seriousness of the matter, it is not surprising that Maximus went immediately to the official order of the haruspices—established long ago by the emperor Claudius I to preserve what he feared would be a dying art—to find out what this meant. Constantine replies:
If it is established that some part of our palace or other public work is struck by lightning, retaining the custom of ancient observation, it shall be inquired of the haruspices what it portends, and the written opinions, having been diligently assembled, should be referred to our learning, and permission shall be given to others of making use of this practice so long as they abstain from private sacrifices, which are specifically prohibited.27
A particularly interesting addition to this ruling is that “others may [make use] of this practice,” suggesting that while consulting the official haruspices—whom, unlike the praetorian guard, he did not disband after defeating Maxentius—is generally limited to matters concerning emperors, other people too may have legitimate reason to worry about natural signs and require the reassurance available via competent divination. He also allowed a priest to be created in the name of his family, a sacredos gentis Flaviae, to oversee the imperial cult in North Africa, allowed the construction of a temple for his family there, and, at Rome, allowed the establishment of college of priests in honor of his family.28
In his dealings with divination and the imperial cult, Constantine appears to be at some pains to change nothing with respect to traditional practice, at the same time advancing the status of his co-religionists. The first thing he did—and perhaps the least surprising given the linkage between status and immunity—almost immediately after the battle of the Milvian Bridge, was to grant Christian clerics immunity from civic munera. Constantine would emend this when it was pointed out to him that people were becoming clerics just to avoid munera; he would later state that such people could not become clerics, and that people who became clerics to avoid munera should be restored to their town councils. The initial gesture toward the clergy may presage a massive grant of immunity that Constantine issued for members of his staff later in the year, presumably to reward them for their service in the campaign against Maxentius.29
It was in 318 that Constantine came to one of his most important decisions in connection with the standing of the church, issued in what was probably an edict. It allowed litigants to transfer cases from civic courts to courts administered by a bishop.30
In such a case Constantine envisages a situation in which an individual decides that he wants the bishop to hear the matter—only civil cases are involved—after he has brought an action before a civil court. The situation is analogous to decisions to seek arbitration—also unavailable in criminal cases—which likewise were heard outside a regular court and in which the decision of the arbitrator was binding upon both parties. The point of arbitration procedures was to provide an alternative to courts that seem to have been crowded, slow, and subject to a seemingly endless cycle of appeals.
Christians had long favored episcopal arbitration within their own community. In the Gospel of Matthew they were told that they should settle their disputes themselves, while in his first letter to the Corinthians, Paul tells the congregation that Christians make better judges than others. A second to third-century text, the Testament of the Twelve Apostles, laid down strict rules for the moral conduct of bishops, making it clear that they needed to be impartial arbiters to heal divisions within the community.31 The main problem with Constantine’s decision, from a Christian perspective, was that Christians traditionally had a very different understanding of the role their bishop ought to play: ideally he was a person who aimed at restoring a damaged community, unlike the judge or arbitrator of the pagan world who was supposed to hold for one side against the other. From what he says here, one might wonder whether Constantine was aware of the difference.32
The power of the bishop as a civic authority is asserted within the next few years in two other rulings, both concerned with the right to conduct the ceremony resulting in the freeing of a slave within the confines of a church. The most important of these is a ruling, reflected in a rescript of 321 to Ossius of Cordoba, one of the most important Christians in Constantine’s entourage, stating that people “of religious mind” can free their slaves in “the bosom of the Church.” Ordinary parishioners have to do this with the bishop present, while clerics can do this themselves “in the sight of the church and of religious people,” and have their action recognized as legitimate on the day that they do so.33
The issue of the manumission of slaves was profoundly complex as slaves who had been freed would ordinarily become Roman citizens. In this case, bishops and priests are being given permission to create Roman citizens out of slaves on the spot, though it appears that Constantine wants to limit such grants of full citizenship under this process to occasions when there would be plenty of witnesses. Two years later he would write to a bishop named Protogenes (probably in Serdica):
It has for a long time been permitted that masters could manumit their slaves in a Catholic church if they did so in sight of the people and in the presence of the bishops of the Christians, so that for the purpose of having a memorial of the act, as a record thereof, some sort of writing should be drawn up which they [the bishops] should sign as witnesses. Hence freedom may be given or bequeathed by you in whatever manner any of you may desire, provided that clear evidence of our wishes appears.34
The assertion that for a long time masters have been permitted to free their slaves in a church if they do so in sight of the bishop and the congregation is plainly not a reference to the rescript that Ossius received, but very likely to a third law (now lost) that is mentioned by the fifth-century historian Sozomon. The response to Protogenes is not unlike those to be found in other documents in which Constantine refers an official to an earlier decision or edict. His concern that there be a permanent record is in line with a concern expressed elsewhere that a person’s status be incontestable, as well as with his evident distress when it was not. These rules certainly improve the position of Christians, and they don’t self-evidently make things worse for non-Christians, unless Constantine was assuming that a bishop would automatically favor a Christian in a legal dispute—unprovable at this distance one way or the other; and it would certainly violate what was already an important tenet of episcopal integrity (a quality perhaps more often ideal than real, but in this case Constantine is dealing with the ideal). It is reasonable to conclude from all this that the new rules promoted the integration of the church’s structures into broader civil society.
The rulings of these years reveal Constantine’s desire to create a unified regime of Christians and non-Christians, of both his former supporters and those who had stood, at least for a while, with Maxentius. They reveal eclecticism in matters of religion—a willingness to assert that bishops are locally important people to be treated as having the same rights as a pagan priest or a local magistrate. Constantine is plainly willing to tweak a senior official whose religious views he doesn’t share but is also willing to appoint pagan officials to investigate quarrels within the church and have them torture Christians if they feel it is necessary.