Constantine's efforts to provide justice to the weak and poor had a twofold aim. On the one hand, he wanted to replace a corrupt imperial bureaucracy with what he hoped would be superior judges, who operated with a tradition of church law already in formation in the early centuries.15 Bishops stepped in to take that position. On the other hand, he saw it as his duty as emperor, in Lactantius's words, "to protect and defend orphans and widows who are destitute and stand in need of assistance."" Personally, he was liberal, distributing "money largely to those who were in need" and "showing himself philanthropist and benefactor even to the heathen." Beggars, "miserable and shiftless," approached him in the Forum and he provided money, food or clothing. Those who had fallen into poverty received land and titles. To orphans he was "as a father," and he "relieved the destitution of widows, and cared for them with special solicitude." To losers in lawsuits he decided, Constantine gave money from his private funds." Constantine not only changed the rules for appeals to remove some of the advantage of the rich but also provided resources to bishops and encouraged them to dispense charity, and urged his own officials to do the same.18
OUTCASTS AND SLAVES
Constantine's concern for the poor and vulnerable in the Roman Empire was also evident in some of his legislation regarding children and slaves. Despite occasional eccentric denials, most historians recognize that child exposure had been practiced from the republican period of Roman history into the empire. This was not an odd divergence from Roman law but was sanctified by both basic principles of law and the antiquity of the practice. Though the text is somewhat obscure and subject to emendations, the Twelve Tables that served as the foundation of the Roman law appear to require Romans to kill "monstrous" infants: Cito necatus insignis ad defor- mitatem puer esto (An obviously deformed child must be put to death quickly; Table IV).
The legal foundation for this practice lies in the patria potestas of the Roman paterfamilias. Again according to the Twelve Tables, this was a power of life and death (vitae necisque potestas). Cicero reiterated the principle,'9 and there are examples from the early imperial period of the rule in operation. By Hadrian's time in the early second century, a son could be killed only if condemned by a family council, but this was a procedural restriction and not a substantive change.20 Exposure of children because of deformity, illegitimacy, poverty or superstition, 21 which usually ended in death, was simply one manifestation of this basic paternal power. Not all Romans endorsed the practice, but there was no prohibition until a law of Valentinian in 374.
Christians had long condemned exposure, and Lactantius declared explicitly that the practice was a form of parricide. "Let no one imagine that even this is allowed, to strangle newly-born children," he urged, "for God breathes into their souls for life, and not for death." Such violence will only breed more violence: "can any one, indeed, expect that they would abstain from the blood of others who do not abstain even from their own?" But exposure does not just lead to murder; it is murder: "it is therefore as wicked to expose as it is to kill." If someone exposes his children from poverty, "it is better to abstain from marriage than with wicked hands to mar the work of God .1122
Constantine did not prohibit child exposure, but in an edict of 318 sent to the vicarius of Africa, he undermined the legal foundation of the practice:
Whoever, secretly or openly, shall hasten the death of a parent, or son or other near relative, whose murder is accounted as parricide, will suffer the penalty of parricide. He will not be punished by the sword, by fire or by some other ordinary form of execution, but he will be sewn up in a sack and, in this dismal prison, have serpents as his companions. Depending on the nature of the locality, he shall be thrown into the neighboring sea or into the river, so that even while living he may be deprived of the enjoyment of the elements, the air being denied him while living and interment in the earth when dead. (CJ 9.17.1)
In 322 he backed up his opposition to child exposure with an edict, similar to the edicts of earlier emperors, that promised imperial aid to parents to prevent them from selling their children to slavery,
We have learned that provincials suffering from lack of sustenance and the necessities of life are selling or pledging their own children. Therefore, if any such person should be found who is sustained by no substance of family fortune and who is supporting his children with suffering and difficulty, he shall be assisted through our fisc before he becomes a prey to calamity. The proconsuls and governors and the fiscal representatives ... shall bestow freely the necessary support on all persons whom they observe to be placed in dire need. (CTh 11.27.2)
A later law reiterated this pledge to families in Italy, but now with explicit reference to the emperor's desire to prevent child exposure. It would, he wrote, be "at variance with Our character [Abborret enim nostris moribus] that we should allow any person to be destroyed by hunger or to break forth to the commission of a shameful deed" (11.27.1-2).23 By this law Constantine treated exposure as a form of parricidium.24 Another law, however, indicates that parents could reclaim their exposed children, provided they paid for them. Earlier emperors had allowed anyone finding a newborn child "to hold it in the condition of slavery," but if later someone wants "to restore the child to freedom or should defend his right to it as his slave," the claimant has to pay an adequate price (CTh 5.10.1). For Constantine exposure was not yet considered a crime, but it was discouraged in his legislation.
Laws regarding child exposure were closely bound up with laws regarding slavery. Foundlings by and large became slaves. For some Romans, exposing their children and, by all odds, killing them would be preferable to selling them to slavery.25 That is the dynamic that helps to explain several odd laws of Constantine. In one piece of legislation, Constantine decreed that the adopting parents of a foundling were allowed to determine the slave or free status of the foundling, in perpetuity: "Every disturbance of suits for recovery by those persons who knowingly and voluntarily cast out from home newly born children, whether slaves or free, shall be abolished" (CTh 5.9.1). Though this was harsh, and certainly was unjust in disallowing the possibility of manumission, it was not a sacrifice of "the freedom of the free-born to the interests of slave-owners."26 Rather, it is more likely an attempt to enact disincentives to exposing children. If parents know that their children could end up as permanent slaves, they might think twice about setting them out. Constantine's codification of the permission to enslave free-born children was also likely motivated by the same desire to limit child-killing.27 Better a slave child than a dead child, Constantine seems to have reasoned.
Constantine's legislation on slavery is mixed.28 Some critics have complained that he did not simply abolish slavery from the beginning. This was hardly a viable social option, given the pervasiveness of slavery and the empire's reliance on slaves. Constantine no more became Abraham Lincoln by virtue of his conversion than did James Madison. More important, there was no consensus among Christian thinkers that Christianity required the abolition of slavery. The apostles instruct slaves to submit to their masters, and Paul even sent the slave Onesimus back to his owner, Philemon. To be sure, the stress on brotherhood among believers transformed the character of slavery at least among Christians. Contrary to common myths, slaves were considered personae under Roman law,29 and slaves often had professional training and managerial responsibilities. Yet the ancient slave system was shot through with Aristotle's conception of the slave as a lesser form of human being, as an "animated tool" and certainly not as a brother.
Postapostolic Christians pressed ahead with the apostolic transformation of slavery. Slavery as a social status was relativized to the "spiritual slavery" to sin, and the stigma of slavery was weakened by the fact that God himself in the person of the Son had taken on the "form of a servant" and came "not to be served but to serve." Slaves were welcomed into the church, and some rose to positions of leadership. The church thus offered opportunities for upward mobility. "Among us," Lactantius wrote, "there is no slave and w
e call them all brothers in the spirit and, as to religion, fellow slaves .1130
Much of Constantine's legislation on slavery reinforced the social system, and slavery, rather than undermining it. He retained restrictions on cohabitation between decurions and slave girls, and in a law of 319 hardened the penalties:
Although it appears unworthy for men, even though not endowed with any high rank, to descend to sordid marriages [ad sordida descendere conubia] with slave women, nevertheless this practice is not prohibited by law; but a legal marriage cannot exist with servile persons, and from a slave union of this kind, slaves are born. We command, therefore, that decurions shall not be led by their lust to take refuge in the bosom of the most powerful houses. For if a decurion should be secretly united with any slave woman belonging to another man and if the overseers and procurators should not be aware of this, We order that the woman shall be cast into the mines through sentence of the judge, and the decurion himself shall be deported to an island. (CTh 12.1.6)
Children of such unions were illegitimate, and any inheritance they received would be confiscated and turned over to legitimate offspring. Persons of higher rank were also discouraged from slave marriages.
We order that senators or persons of the rank of prefect [perfectissimus] or who occupy the office of duumvir or who are decorated with the ornaments of the chief priesthood of Syria or Phoenicia shall be branded with infamy and lose the privileges of the Roman laws if they treat children born to them of a slave, daughter of a slave, freedwoman, daughter of a freedwoman, actress, daughter of an actress, mistress of a tavern, daughter of a tavern keeper, or a low and degraded woman, or the daughter of a panderer or gladiator or a woman who offered herself to public trade, as their legitimate children, either pursuant to their own declaration to that effect or pursuant to the privilege extended by our rescript; and whatever a father shall have given to such children, whether he calls them legitimate or natural, shall be taken from them and shall be turned over to the legitimate offspring, or to his brother, sister, father or mother. (CJ 5.27.1)
Elsewhere, he prohibited slaves from informing against their domini, required that damages be paid by anyone who received a fleeing slave without informing the master, and granted, as we saw above, fathers the right to sell their children into slavery.31
Yet he also issued laws that enabled slaves to be liberated. Manumission was not at all new, but Constantine opened new avenues for it. Given the long-standing Roman endorsement of freedom, he wrote, the law must provide avenues of freedom for slaves. If, for instance, a man was claimed by another as a slave, the supposed slave was given an opportunity to find a sponsor who would vouch for his free status. Even if he found none, he could renew his claim to freedom at any time later, should he find a sponsor (CTh 4.8.5-6). Constantine passed laws to ameliorate slave conditions. He tried to keep slave families together. Because slaves had a right to a stable home, slave families were not to be split up when a slave was sold, and urban slaves were not to be sold if they were tutors, so that their young pupils would not lose the benefits of their protection.32 Ancient law, he observed, removes the birthright from women who have children with slaves, without any exceptions made for youth or ignorance. While Constantine "shunned" cohabitation between free women and slaves, he declared that the children of such unions were free, though medial: "free children of slaves and illegitimate children of free persons." They were "freed from the constraints of slavery" while they were "liable to the privileges due to patrons." This law applied whether the woman slept with the slave "ignorantly" or "willingly" (CTh 4.12.3). In a law strikingly reminiscent of Exodus 21:20-21, he ruled that an owner who beat his slave to death with clubs or stones, or killed the slave by hanging, poisoning or throwing him from a height, would be prosecuted as a murderer. If, however, the slave died from normal discipline, the owner was free.33
All this legislation can cause us to miss several crucial innovations in Constantine's slavery law. The first, and the lesser of these, was his permission of manumission in the church. This was important in that the church became a place of liberation for slaves, but in essence Constantine was doing no more than extending a privilege of pagan temples to the Christian church. Far more important was Constantine's endorsement of manumission as an act pleasing to God. In the 321 decree allowing for manumission in the church, he referred to persons who with "pious intention" (religiosa mente) want to give freedom to slaves. Manumission before the eyes of a bishop, he stated, had the same legal force as the granting of Roman citizenship, and he added that clerics were allowed to free their own slaves (CTh 4.7.1). Doing something pleasing to God on Sunday was particularly appropriate, and manumission was one of those pleasing acts.
Manumission was endorsed as an act of "piety," and Constantine encouraged anyone who wished to perform this act to turn to the church to do it. "This is the first time in history that emancipation is praised as godly work and encouraged by an emperor." In fact, Constantine's endorsement of manumission went further than that of most Christian writers of the time. Though not requiring manumission, Constantine did encourage it, and for that there was no "model" in the early church.34
WHO RULED AND How?
Government is by law, the Romans said, but laws have to be interpreted, enforced and administered by men. This was especially so in the Roman world. Publication of laws was not instant or thorough, and governors were often left to their own resources to determine what was best for their territory. Patronage and clientage, moreover, were not only the bonds of social life but the sinews of the body politic. A benefactor would grant favors and benefices to clients and thereby win loyalty and support. Politics meant gift-giving, and responding to gifts in a way that would win further benefits in the future. Honor was sought by proximity to the emperor, and was conferred by the emperor. Constantine knew how to play this game so well, in fact, that both his friends (Eusebius) and critics (Zosimus) claim that he was overly generous. When he took over the Eastern empire, he came as a Western Augustus to an unknown territory. He needed to make friends, establish connections and secure loyalty if he wanted to stabilize his rule. This he did by funneling a great deal of money and social privilege into the East. Constantinople was, among many other things, a mas sive gift to the Eastern empire, a gift enhanced by the creation of a senate in the new city.35 Throughout the empire, the emperor expanded the number of senators, so much so that the traditional "gentry" class of equestrians virtually disappeared, and he formalized the earlier system of imperial "companions," the comites.36 In Palestine, his mother Helena acted as his agent in funding several church buildings.
When Constantine reunited the empire under a single Augustus, he had to re-create or create a new administrative structure.37 Diocletian had already begun subdividing provinces into smaller units, and Constantine built on his work. The empire was divided into fourteen dioceses, each overseen by a vicarius, and the dioceses were bundled together into four larger units-Gaul, Italy, Illyrium and the Oriens-each of which was governed by a praetorian prefect. One of Constantine's innovations was to remove military responsibilities permanently from the prefects, dividing between the bureaucracy and the army in a way that both neutralized potential for coup attempts and gave realistic recognition to the fact that few men are endowed with the abilities of both an accountant and a general .31
What kind of men filled these positions? Did Constantine give preference to Christians? Or did he entrust his empire to the most competent Turks he could find? Historians differ on this point,39 but we have the testimony of Eusebius that he promoted Christians. Many of the men he promoted were from lower classes: "a considerable number of [Constantine's] new senators, including many who rose to the highest rank, came from lower in the social scale." At least "two peasants ... rose from the ranks [of the army] to high commands, both of whom assumed high positions in the court." In Rome the senatorial class still included many older families, but the Eastern honestiores had been elevated from low origins. Gi
ven that these were the classes with the greatest concentration of Christians, it is likely that Constantine was raising Christians to positions of high rank and great responsibility for the empire.4o
Constantine's appointments to the position of city prefect (praefectus urbi) in Rome are a barometer of his strategy in appointments. When he first entered Rome after defeating Maxentius, he retained his rival's praefectus, Annius Anullinus, for a month and then replaced him with another member of the old guard, Aradius Rufinus, who had served earlier as praefectus and was of an old senatorial family. Constantine's takeover of Rome led to no reprisals against Maxentius's officials, and Constantine's appointments were, to this extent, a pledge of continuity and clemency. Later, though, Constantine's appointments moved in a different, more innovative direction. In 325-26 the praefectus was Acilius Severus, a Spanish Christian, and three of the members of the aristocracy who later filled the position were also Christians. At a time when many pagans resided in Rome and occupied positions in the Senate, Constantine appointed Christians to be chief magistrates of the capital.41 If comparatively few Christians held this position, the fact that any did was remarkable.
Though often overlooked, there is direct and obvious evidence of Constantine's preference for Christians in the government of the empire: his favor to the bishops. Bishops formed courts of appeal, distributed relief to the poor and to widows, oversaw large pastoral and administrative staffs in urban parishes, and led public rites of worship in the growing number of great cathedrals throughout the empire. Over the following decades, they used their money to open hospitals, orphanages and hostels.42 And, of course, they were all Christians. By supporting the church and empowering bishops, Constantine created a Christian governing class. Again, it is impossible to know his intentions. Possibly he simply responded to immediate needs: he saw abuses and gaps that needed remedy and sought the remedy nearest to hand. Whatever his intentions, Constantine's largesse to the church prepared the empire for its eventual collapse. Even before the imperial government ended, bishops like Athanasius and Ambrose had become the dominant figures in their cities-not just the dominant religious figures but the dominant figures, full stop, just as abbots soon would become the benevolent patresfamilias in many rural areas. Rome's baptism meant the baptism of the aristocracy, as baptized church members took on imperial authority.
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