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
Constantine fumed against the piling up of fees. He recognized that the system worked against the humiliores, the wretched poor who could not pay for justice. "The chamber curtain of the judge shall not be venal," he demanded. "Entrance shall not be gained by purchase, the private council chamber shall not be infamous on account of the bids," and "the appearance of the governor shall not be at a price." Rather, "the ears of the judge shall be open equally to the poorest as well as to the rich." He aimed at specific abuses-chiefs of staff charging litigants for the privilege of being escorted to the judge, or subordinates who extorted from powerless people looking for justice. Finally, "the intolerable onslaught of the centurions and other apparitors who demand small and great sums will be crushed; and the unsated greed of those who deliver the records of a case to litigants shall be restrained." If anything unjust is taken from those who are involved in a civil case, "armed punishment will be at hand, which will cut off the heads and necks of the scoundrels" (CTh 1.16.7).6
This law contains some of the most pointed invective in Constantine's corpus and threatens horrors against violators. But it is important to notice the object of his attack and who is being defended. He lashed out with all his considerable rhetorical energy at rich scoundrels who wanted to make some extra money by selling justice, and he did so in defense of common litigants abused by the system.?
Fees were only part of the problem. People of high social status had access to governors and judges that commoners lacked. Members of the elite stuck together. Aristocrats were allowed to visit the governor's residence and "were entitled if they so wished to sit beside him on the bench in court."8 The system of patronage and clientage overlay the justice system, and men of rank who happened to be judges were often beholden to other persons of rank who appeared in their courts. In response, poorer men had to find patrons of their own, transferring property to them for the duration of the case.9 Like other emperors, Constantine pinned legal sanctions on court officials who showed favoritism (CTh 11.30.5).
Appeals were also frustrated by violence, intimidation or imprisonment by judges or legal opponents. Judges took appeals as affronts to their honor and sometimes tried to prevent them from going forward. Appeals, Constantine insisted, did not cast "contumely on the judge" but were instead the legal privilege of everyone who appeared in court. Judges who blocked appeals were "arrogant through vainglory" (CTh 11.30.11; cf. 11.30.13, 15). Constantine warned that appellants in civil suits were not to be put in prison or suffer "any kind of outrages or torments or even contumely" (CTh 11.30.2). When he heard a report about appellants being "treated with contempt," he decreed that if it occurred through "fault or negligence of the governors," then he would take it up personally and see to it that the governor would be "fittingly punished" (CTh 1.5.1). Judges would sit on appeals, and Constantine not only demanded that cases be advanced speedily (CTh 11.30.3) but also threatened capital punishment to anyone who failed to deliver an appeal to the emperor's court within twenty days of its arrival and to members of his "office staff" who failed to deliver his own sentence to the judge (CTh 11.30.8). Any judge who suppressed the report of a case, thus forcing a litigant to appeal to the emperor, was guilty of "sacrilege" (CTh 11.30.6). Constantine threatened to "break and shatter" any judicial decision made "to the prejudice of the laws" (CTh 1.5.2). Judges were not to be allowed to hide in anonymity. Trials should be public, before "throngs of people," so that judges could not make back-door deals with those who would bribe them. Constantine even called on citizens to help reform the judicial system by praising "by public acclamation the most just and vigilant judges" and by complaining against "unjust and evildoers" (CTh 1.16.6).
Constantine addressed this knot of problems on several levels. As we have been seeing, he castigated his own officials for their abuses of power. He showed little confidence in his provincial judges, and his laws attempted to curb pointless appeals and make appeals easier for those who had little money.1° The most substantive change was the permission that Constantine granted, in 323, for litigants to appeal from the civil courts to the courts of bishops:
Pursuant to his own authority, a judge must observe that if an action should be brought before an Episcopal court, he shall maintain silence, and if any person should desire him to transfer his case to the jurisdiction of the Christian law and to observe that kind of court, he shall be heard, even though the action has been instituted before the judge, and whatever may be adjudged by them shall be held as sacred; provided, however, that there shall be no such usurpation of authority in that one of the litigants should proceed to the aforementioned tribunal and should report back his own unrestricted choice of a tribunal. For the judge must have the unimpaired right of jurisdiction of the case that is pending before him, in order that he may pronounce his decision, after full credit is given to the facts as presented. (CTh 1.27.1)
The intention of this law is unclear at
several points, but fortunately we have a second document that provides clarification. In 333 Constantine sent a rescript to Ablabius, explaining the operation of the system. Collected as the first of the Sirmondian Constitutions, the decree "On the Judgment of Bishops" is one of the important pieces of legislation in Constantine's reign, not only for the specific effect it had on the administration of justice but also for what it reveals about the "agenda" that Constantine pursued." His interest, he says, was to curb "the wicked seeds of litigation, so that wretched men, entangled in long and nearly endless snares of legal procedure, may have a timely release from mischievous pleadings or absurd love of disputatio."
Ecclesiastical courts of one sort or another existed already in the first century. By making use of these, Constantine solved "one of the most intractable problems of late antiquity, a judicial system that works to the advantage of the rich and powerful" and against what Constantine considered "oppressed lower classes .1112 His ruling had a number of immediate effects on legal practice. It sped up the process because bishops generally rendered judgment after a single hearing with the litigants. Because the bishops charged nothing, it opened up an appellate court for those who could not afford the fees or the bribes that the civil courts demanded. The bishop rendered a final judgment, no appeal permitted, reflecting Constantine's conviction that the voice of a bishop is the voice of God. Church courts were used, as is evidenced in the next century by Augustine's by then commonplace complaint that he had no time for contemplation because he spent so much time rendering judgment on his litigious North African congregants.13 Augustine's court, like most, was open to nonChristians, such as the Jew Licinius, who had been defrauded of his property by a bishop until Augustine intervened to put things right.14
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