THE GENERAL TENOR OF Constantine’s administrative acts in the decade after the battle of the Milvian Bridge reveals his attention to detail, a general desire for his empire to run properly, and even when changing things, a desire to respect precedent. The preserved record of his dealings with two officials in particular—the urban prefects Valerius Maximus Basilius (prefect from 319 to 321) and his predecessor, Septimius Bassus who had been consul in 317, and prefect from May 15 that year until September 1, 319—enables us to go further. The ample documentation of his dealings with these men, who were essentially his deputies in Rome, allows us to see how Constantine understood his role as emperor.
The framework within which Constantine’s interaction with Maximus and Bassus takes place is most often provided by the Roman legal system, especially that of civil procedure. The system of civil procedure comprised essentially four kinds of action: a “personal action” brought by someone claiming that a service had not been performed; a “real action” brought by someone laying claim to some object; an “action for restitution” in which a claim could be made both for the recovery of an object and the infliction of a penalty upon the person who had withheld it or inflicted damage; and an “action in law,” claiming that an individual had violated a ruling set out in a statute.1 Once an action was brought before a magistrate, he would set a time limit within which the two sides would produce the witnesses and documents they needed to prove their cases—this could include a rush by both parties to acquire private rescripts from the emperor. One or the other litigant might have to produce a bond to ensure that he would show up for the hearing or to be confiscated as a penalty for bringing a bogus action. The hearing would take place before a single judge, who, after consulting with his advisers, would render a written decision. The loser could then appeal the decision.
In cases of inheritance, the law was based on the concept of universal succession whereby an heir would take on the risks and duties of the deceased as a whole. Liability for inheritance was determined through relationship to a paterfamilias, the head of the family group or familia. The paterfamilias could leave property to whomever he wished, but if he died without making a will, the property would be allotted according to strict principles of biological relationship, and if he did make a will, it was generally assumed that he would leave the bulk of his property to immediate relatives. When it came to determining who had the best claim, those in the first class, the “privileged heirs” or sui heredes, were those who had been subject to the power, potestas, of the paterfamilias at the time of his death, and who thereby became independent (sui iuris or “of their legal power”). Unless, according to an extremely archaic formula, the wife of the paterfamilias had married in such a way that she passed under his potestas, she was not seen as part of the familia. She had remained under the authority of her own paterfamilias, even when married, and would inherit “in her own legal right” from her father, at which point she would have the right to dispose of her property as she saw fit (most often to her children, even children by a failed marriage).
If there were no “privileged heirs,” the dead person’s estate would pass to his kin, or “agnates,” those most closely related through the male line.2 A woman, for instance, who died without making a will would have her estate taken up by her brothers or other male relatives, even if she had children, for the simple reason that those children were not deemed to be part of her familia.
Children were always regarded as belonging to the familia of their father, and if they were underage when their father died they would be placed under the care of a tutor responsible for managing their property until they came of age (twelve for girls, fourteen for boys). In ideal circumstances, a dying father would nominate tutors for his children; if he died intestate, it would be up to the local authorities to do this. And given that being an honest tutor was a potentially time- and therefore resource-consumptive activity, service as a tutor was classified as a personal munus. Once a child came of age and until the age of eighteen for a girl or twenty for a boy, he or she would usually be assigned a curator or adviser to prevent irresponsible behavior vis-à-vis the estate (a curator was also appointed for someone thought to be insane or a spendthrift).3
The first surviving relevant communication with Bassus is Constantine’s statement that if a litigant showed up with a rescript that was valid on the point of law that it addressed when it was issued, it would still have force even if the law had been changed by a subsequent edict; whereas if a rescript was issued after the edict and asserted a point of earlier law, it would not be valid, since rescripts should accord with the public law and “it is fitting and right that only We [the emperor always uses the plural when speaking in his own voice] shall investigate an interpretation that has been interposed between equity and statute.” The point is an important one because it asserts that the emperor alone is the source of law.4 Although Constantine’s response to Bassus might seem logical, a ruling like that could cause problems in a world where people were intent on obtaining private rescripts to support their positions, and where those rescripts were not always consistent.
Much that appears in this correspondence gets down to fine issues of procedure, suggesting that Constantine was taking a very personal interest in the way the legal system ran, and that even very senior officials felt that they needed to clear such issues at court. So it was that on March 18, 318, Constantine ordered that judges provide sufficient explanations when issuing decisions in important cases. Evidently there were judges who, either uncertain of their opinions or all too certain of their wisdom, might choose to occlude their reasoning through extreme brevity or feel that they were above the need for explanation. On May 19, he stated that a new time limit must be set in cases where one litigant has died so that his heirs can understand the issue, or in the case of an intestate estate, an agnate could decide whether it is worth accepting an inheritance burdened with litigation.5 On October 7, Constantine states that in accord with a ruling of “the divine Antoninus” (Antoninus Pius, reigned 138–161), “an emperor most learned in the law,” gifts between parents and children would remain valid even if the child had not been emancipated (and was thus still in his father’s potestas and not able to own property) and even if the gift has not been delivered. A third-century BC law, the Cincian Law, which allowed certain kinds of gifts only if elaborate formulae were correctly recited, was changed so that gifts would be valid even if the formulae were incorrectly recited. The final surviving provision—that this ruling will be valid for all pending litigation—may well have been necessary either because Bassus had pointed out that people had received rescripts stating the opposite, or because, in Constantine’s view, Pius’ law made any subsequent ruling invalid.6 A few days later Constantine wrote to Bassus telling him that no young person should appear in court unless he had a curator, which is essentially a statement of the point for having one in the first place.7 The last thing we know that Bassus received from Constantine was a lengthy set of instructions about the time limits for children who had inherited as minors to bring a suit for the restitution of property that they felt had been taken from them in their younger years.8
Constantine’s correspondence with Maximus on civil and procedural matters is very similar to that with Bassus. In one typical case he issued an immensely long ruling on the subject of gifts between spouses and relatives, expanding on the ruling on gifts under the lex Cincia that Bassus had received. The aim here is to restrict suits that seek to damage the outcomes of affectionate relationships and generally to restrict causes of litigation by setting out cleanly what would count as a legal gift and what would not.9
In 319, four years before his ruling on spousal gifts, Constantine issued one on betrothal gifts, expressing his displeasure with “the practice of the ancients” according to which people did not have to return betrothal gifts when a couple broke up. The ruling effectively puts the burden of proof that gifts should be returned on the party breaking off the engagement. Unless one of the betrothed had died, in which case gifts should be returned to the heirs or, in the event of the recipient’s death, to the giver, what counted was that the person who had broken off the engagement should make restitution. This was important because it meant that claims about the personal conduct of one or the other party as the cause of the breakup would not be allowed. As young girls were more likely to be the victims of a broken engagement, the measure reveals a marked desire to assist the weaker party.10 In 316 Constantine had written to Octavianus, the commander of the troops in the Spanish provinces, telling him that if a man of high rank raped a young girl, invaded the property of another, or was caught committing any other crime he should be tried where he was accused and that “accusation excludes all privilege of rank when a criminal case rather than a civil or monetary matter is brought.”11
Although Constantine might have an interest in protecting the weaker party against persecution by the more powerful, his attitude toward slavery was deeply ambivalent. There was, it seems, in his view, no worse state. He abhorred the possibility that a person could be unfairly condemned to that status, a sentence that he saw as the emblematic act of a tyrant. In seeking to prevent people from being unfairly enslaved, he asserted the importance of a person’s birth status in determining his status as an adult. On the other hand, he did little to alleviate the condition of those who were already slaves, and deplored the notion that a free person could associate with a slave on an equal basis. In all of this, Constantine’s attitudes are harsher than those of earlier generations and probably reflect changes in the course of the third century. For earlier periods, the issue of slave status was complicated because a very great many slaves were freed by their masters, usually in their twenties or thirties (or so it seems; the statistical basis for this assertion is less than ideal). As a temporary status, slavery, while “staining” the character of those subjected to it, was a status out of which a person could mature into full personhood. It was thus even possible for slaves to have relationships with free people without necessarily reducing their partner to their own status. For Constantine, the dividing line was sharper and the “stain” of slavery deeper.12
Constantine’s attitude, however, does not mean that he wished to make things worse. One of the actions that his government took on behalf of slaves whose status was not questionable was to prevent their families from being broken up when imperial estates were rented out. That this move is contained in a missive to a mid-level manager and might not have been thought important enough for Constantine’s attention reflects a general apprehension that slaves who were treated abominably might revolt.13
Constantine’s concerns about birth status also figure in documents sent to other officials; among them is a powerful missive to Menander, then most likely the vicarius of Africa, in which he registers his horror that starving parents are selling their children into slavery. He orders Menander to tell the provincial officials that they “should grant necessary sustenance to all whom they find to be in a wretched poverty, and from the storehouse they should immediately give adequate food. It is abhorrent to our ways that we should allow anyone to be overcome by hunger or to commit an evil deed.”14
“Freedom was of such great importance to our ancestors that it was not possible to take it away from fathers to whom the power of life and death over sons had been given”—thus wrote Constantine in 324 to Maximus even though it is clear from the context that he deplored the use of that freedom to sell one’s children into slavery. The upshot was to make it easier for free people who had been sold to reclaim their freedom, in particular alleviating the situation of those who, raised in the house of another as if they were slaves, had agreed to be sold, while minors, because they were unaware of their true status. The other crucial factor here is that birth status should remain inviolate: if a person was of free birth, that birthright could not be taken away, even by a parent. And once legally freed—even if the individual didn’t know it—he would always be free.15
In dealing with issues of status, intent and knowledge on the part of the litigant were particularly important to Constantine. Similarly, in his ruling on marriages involving freeborn women who married fiscal slaves without knowing their status, they would not have to give up their freedom, but their children could not be full citizens. He notes: “If an unforeseen error or simple ignorance or lapse due to infirm age drove [them] into these nets of cohabitation, these shall be exempted from our sanctions.” By implication, if people could be expected to know what they were about, they would have a harder time regaining free status, an issue that may be related to Constantine’s view that citizens should be respectable people.16
The question of intent is also operative in a couple of other rulings on the topic of unions between slaves (other than fiscal) and free persons. If people were aware of what they were doing, they were going to be in trouble. So it was that in 317 Constantine had stated that any woman who married a slave, if she had been warned in advance that she was doing so, would be enslaved herself, while in 318 he took on the issue of people who had the status of town councillors (decurions) who resided with slave women who did not belong to them as if they were legally married. In a case like this, the woman would be sent to the mines and the man would be exiled to an island, losing all his property, which, if he had no heirs, would be handed over to the city in which he was a decurion. The point here was to prevent people from entering into unions with slaves just so they would no longer have to undertake munera—since the outcome of such a liaison would be that they would be turfed out of their town council in disgrace. The way Constantine saw it, the offender went but the property remained to support civic activities. If the slave’s owner’s agents realized what was going on and turned a blind eye, they too would be heading for exile, and if the owner himself wittingly allowed it to happen, he would lose his property.17
Constantine’s understanding of propriety governs other decisions with respect to status during these years. In another letter to Maximus he states that if a slave who has been freed insults his patron or commits a crime, he (the text assumes a male slave) can be reenslaved. Roman citizenship can only be restored to him if he proves himself worthy after punishment and if his masters petition the emperor. The measure restated a point of law that had been established for more than a century, though probably somewhat more harshly than under Diocletian.18
In another case, however, he extends the rights of people (assuming they are of good character) whom others are trying to enslave. In such a case the accused was supposed to appeal to a patron who would prove his claim to freedom, but if no such patron could be found he might look for a sponsor by posting a written notice “so that a person’s claim will not be ignored through silence or proclaimed in an absurd manner so that those persons who learn of it may be willing to undertake to defend his free status.” If no sponsor materialized, the individual would be handed over to the claimant as a slave. But if a sponsor could be found later (even years later), the “claim of freedom was not destroyed” and the slave could go to court with the newly found sponsor and have his freedom restored. If someone died in slavery and his or her heirs were then able to prove wrongful enslavement, the family responsible for it would pay a fine; furthermore those who defended claims to freedom would be exempt from fines. In the end, his concern is once again that those too weak to defend themselves will be victims of a pitiless system wherein “the domination of victory takes freedom away from defeated enemies” and that the laws should only inflict penalties on those who hurt others.19
Behind these lines lies the cruel procedure for reclaiming a fugitive slave—or as the case might be, the procedure that could allow a person to claim as a slave a person who was free. The full horror and humiliation of the practice strikes us most clearly not from the pages of any legal text, but rather from the pages of Apuleius’ Golden Ass, in a sequence where the Goddess Venus is seeking Psyche, her son Cupid’s girlfriend. Venus is appalled that Cupid has been seeing Psyche, of whom she disapproved, and, when she cannot find the girl—who she claims is her servant simply on the grounds that she is human—she summons the god Mercury to find her. She tells him that he must “as a herald make a public proclamation of a reward for tracking her down … clearly indicate the marks by which she can be recognized, so that if anyone is charged with unlawfully concealing her, he cannot defend himself on the plea of ignorance.” Mercury sped around the world appearing before gatherings of every community and as instructed performed the duty of making proclamation: If anyone can retrieve from her flight the runaway daughter of the king, the maidservant of Venus called Psyche, or indicate her hidden whereabouts, he should meet with the herald Mercury … whoever does this will obtain as a reward from Venus herself seven sweet kisses, and a particularly honeyed one imparted with the thrust of her caressing tongue. In this case Psyche turns herself in, but the proclamation of Mercury illustrates, as Apuleius intended it, the horrific injustice of such cases where the power imbalances between the two sides were so great, and it is just that sort of injustice with which Constantine is here concerned.20
Concerned as he no doubt was about preventing people from becoming slaves who ought not to be, and about freeing the unjustly enslaved, Constantine was much less solicitous of those who actually were slaves, as we have seen. In 319 he wrote to Bassus:
If a master should beat a slave with rods or lashes or throw him into chains for the sake of restraint, putting aside all consideration of days or legal interpretation, he will sustain no fear of a criminal charge if the slave should die. But he should not use his right immoderately, for then he will be accused of homicide, or if he voluntarily kills him either with the blow of a club or of a stone or inflicts a lethal wound using an actual weapon, or orders that the slave be suspended by a noose, or commands by a vile order that he should be cast down or that the virus of a poison be poured into him or lacerates his body with public punishments, tearing his sides with the claws of wild beasts or burning his limbs by moving fire close or, with the savagery of inhuman barbarians he should force bodies weakening and flowing with dark blood mixed with gore to surrender life in the midst of tortures.
The issue of brutality to slaves had a very long history in the Roman world. The general feeling was that good men did not torture slaves or punish them without reason; but a master could still be brutal and might not care if people found his behavior despicable. In the second century, Antoninus Pius had taken a stronger line against master-slave violence than Constantine did in this case. The second century is also the time when The Life of Aesop assumed the form in which it has come down to us. The Life is a wonderful work of fiction containing the collective wisdom of slaves (albeit only male ones); it makes clear that slaves routinely feared beatings and suspected their masters of plotting to justify flogging them, while the wealthy tended to fear their slaves as well as their own tempers. In taking a less compassionate line than Pius, Constantine acknowledges that people will beat their slaves and that there is nothing that he can (or would wish) to do to stop it; but he is nonetheless inclined to limit the brutality of masters by preventing them from employing the dreadful tortures available to agents of the imperial government or that their own creative imaginations prompt them to use.21
Whatever the subject, one thing that is crystal clear in the administrative acts of these years, as it will be in later years, is that Constantine expected his officials to do their jobs properly, and it seems that he had no qualms about calling them out if he felt they were underperforming. In 319 he wrote Bassus pointing out that officials would be fined if they were slow in preparing the documentation necessary to judge an appeal, or if they were not ensuring that judges were following the law as the emperor decreed it.22 It cannot have been the unguided hand of an imperial secretary who wrote as follows to Maximus in 321:
All judges, and especially your sublimity, who represent us in trials, must do this [follow the law as decreed]. 1. Complaint also arises from litigants, because you, who have received the right to act in place of the emperor, deny their appeals. It is necessary to prevent such a practice. For what is harsher and more unworthy than that a person endowed with power should grow so insolent through its exercise that he should despise the right of appeal, that he should refuse to issue a report and deny the possibility of rebuttal as if appeals were devised for the purpose of slandering judges, and not as a privilege of a litigant, or as if in this matter the equity of the judge should be considered, but rather the need of the litigant.23
The message was taken, and Maximus continued for several more years in high office. It is through his correspondence with Maximus that the personality of Constantine the administrator emerges most clearly. He is willing to rebuke, and to forgive; to chide Maximus for his religious beliefs while appreciating his value as someone to whom he can safely delegate responsibility. It is not always a smooth relationship, but it seems to have been one that worked. Also these documents show something of Constantine’s view of his role as emperor. From the often long (and almost invariably turgid) screeds that emerge from his chancery, we get the impression that for him the imperial palace is the font of all wisdom. It is his job as emperor to instruct his subjects in the law and to make sure that they follow it. He is no radical reformer, but neither is he wedded to the past. He sees himself as an enlightened ruler working within a tradition to make his empire a better place.